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1843.-Havergal v. Harrison.

whether the testator in the use of a general description, [*51] has meant it to apply to *persons capable of being enumerated at the time, or to persons who might afterwards come into existence and could not therefore be enumerated till the death of the testator. His wife had one sister, and he had one sister: it is therefore difficult to suppose that he could have meant any other than the sister of himself and the sister of his wife; for if he intended to comprise persons not capable of being enumerated at that time, and persons capable of increase or decrease, it is inconceivable that he should have used the words in the singular number, and exactly applicable to the existing state of things.

If he meant by this description to enumerate the two particular sisters, how can we conceive, that, as to the brothers, he meant to comprise persons not then in existence, and who might afterwards come into esse?

I have a strong impression that there is a descriptio personarum at the time of the making of the will.

I think that the singular word "sister" shows that he did not intend a class incapable of being ascertained at the time, but individuals who could be then enumerated. I will consider my judgment.

Dec. 12.-THE MASTER OF THE ROLLS-I have read the case of Shuttleworth v. Greaves, and do not find in it any reason for altering the opinion which I expressed yesterday. The words "all and every my brothers and sisters," which were used by the testator in that cause, were comprehensive enough to include

persons not capable of designation at the date of the will, [*52] and there was nothing to indicate the "designation of any particular person; there were words creating a tenancy in common, and a limitation to executors, administrators, and assigns; and the question seems to have turned, partly upon those words and partly upon the limitation.

In this case, it appears to me that the use of the word "sister" in the singular number can only apply to the sister of his wife, and his own sister then in being, and that, consequently, as to them, there was a designatio personarum. The word "brothers," supposing it to have been used in the plural number

1843-Hartland v. Atcherley.

in both cases, would have admitted of a more comprehensive construction; and, in one case, it was not accordant with the fact as now ascertained to have been then existing. It creates some ambiguity, but not enough to overweigh the effect of the word "sister." It seems in the highest degree improbable that the testator should have meant to designate the sister personally, and have meant an unascertained and unknown class of persons by the word "brothers" in the same clause.

I am of opinion that the brothers and sisters living at the date of the will were the legatees, and that the shares of such of them as died in the testator's lifetime lapsed and now belong to the next of kin.

LADY HARTLAND v. ATCHERLEY.

[*53]

1844: January 11.

It is not the practice of the court to appoint a person resident abroad to be guardian ad litem.

A. was found lunatic in Ireland, and B. was appointed his committee there. A being a defendant to a suit in England, an application was made that B. might be appointed guardian ad litem. Held, that the proper course was to get the Irish commission recorded in England under the 1 W. 4, c. 65, s. 41, and then for the lunatic and committee to answer together.

THE defendant Lord Hartland was, in 1836, found lunatic by inquisition in Ireland, and Dennis Mahon was appointed committee of his person and estate. Lord Hartland and his committee were resident in Ireland.

Mr. W. H. Clarke moved, that Dennis Mahon might be assigned guardian of Lord Hartland to answer this bill, and defend the suit. He stated, that the usual course to obtain the appointment of a guardian ad litem to a lunatic defendant was, to present a petition of course for a commission to assign a guardian; but he argued that the court might dispense with a commission, as in the case of an infant resident abroad.(a)

(a) See Smith v. Palmer, 3 Beavan, 10; Shuttleworth v. Shuttleworth,2 Hare, 147; Drant v. Vause, 2 Y. & C. (C. C.) 524.

1844.-Robey v. Whitewood.

THE MASTER OF THE ROLLS said, that it was not the practice of the court to appoint a person resident abroad to be guardian, as the court would have no power to compel obedience to its orders; that, unless the interests of the committee and lunatic were inconsistent, they ought to answer together; that here the parties might get the inquisition recorded in England under the act,(a) and then the lunatic and committee could answer together.

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1844: January 11.

*ROBEY V. WHITEWOOD.

The 1 W. 4, c. 36, s. xv. rule 17, does not authorize the court to order that the costs of a defendant's contempt for not answering, and who is too poor to pay them, may be costs in the cause.

THE defendant was committed for contempt in not answering.(b) He put in his answer, but being too poor to pay the costs of the contempt, it was moved on his behalf, that it might be ordered, under the contempt act,(c) that the defendant's costs of contempt might be made costs in the cause, and that the defendant might forth with be discharged without payment of costs.

Mr. Teed, in support of the application, referred to the 1 W 4, c. 36, s. 15, rule 17, by which it is enacted "that in any other case of a commitment for contempt, not herein specially provided for, the court may, upon any such application as last aforesaid, or upon any such report as aforesaid, make such order for the discharge of the prisoner, upon any such terms, and making, if the court shall see fit, any costs in the cause, as to the court shall seem proper."

Mr. Shebbeare, contra, was not heard.

THE MASTER OF THE ROLLS-I do not think I can make

(a) 1 W. 4, c. 65, s. 41.

(b) 5 Beav. 399. [S. C. post, 77.]

(c) 1 W. 4, c. 36.

1844.-Ireland v. Eade.

this order, the effect of which may be, to make the plaintiff pay the costs of the defendant's contempt. I doubt whether the seventeenth rule of the act gives authority to the court: it provides only for "any other case of a commitment for contempt not herein specially provided for ;" and the act contains this very humane provision, that the prison shall be *visited [*55] by an officer of the court, upon whose report the court may make provision for payment of the costs of a party in contempt, not in the way which is here asked, but out of the suitors' fund.

1844: January 12.

IRELAND V. EADE.

A receiver ought not to present a petition, or originate proceedings, in the cause; any necessary application ought to be made by the parties to the suit. There are exceptions to the rule; as where a receiver had incurred costs in the execution of his duties, which the parties had long neglected to provide for, it was held that he was justified in presenting a petition for their payment.

THIS was a petition of the receiver in the cause, for payment of certain costs, charges, and expenses which he had incurred.

It appeared that in 1832, Mr. Smallpiece the petitioner had been appointed receiver, and that he had incurred considerable expenses in obtaining possession of the property, in consequence of the violence of one of the defendants. It was also admitted that he had incurred other costs, charges, and expenses in the performance of his duties of receiver, which had not been paid. He had, in 1834 and afterwards, made various applications to the solicitors of the parties, requesting them to obtain an order for the taxation, and some orders had been made to that effect, which however had failed, upon technical objection afterwards taken thereto.

In 1839, Mr. Davison had obtained the conduct of the cause, and he promised to make an application to the court respecting the petitioner's claim; in 1841 the receiver had been discharged. No further steps having been taken to satisfy the receiver's claim, he presented a petition for the taxation and payment of his costs, charges, and expenses.

[*56]

1844.-Ireland v. Eade.

*Mr. G. Turner and Mr. Prescott White, in support of the petition.

Mr. Kindersley, contra, contended that the receiver ought not to have presented this petition, and that it had been done without any proper communication with the other parties; he urged that the receiver ought to pay the costs of it.

Mr. Stinton, for the plaintiff.

THE MASTER OF THE ROLLS-A receiver ought not to present a petition or originate any proceedings in a cause; any necessary application should be made by the parties to the suit. That is the general rule; but there is some difficulty in adhering to it, and many exceptions to it have been allowed. Sir John Leach, however, did adhere to it with considerable strictness.[1]

In this case the petitioner was appointed receiver twelve years ago, and all acknowledge that he incurred costs, charges, and expenses in the execution of his duty, which he is entitled to receive. He does not seem to have been desirous of presenting a petition of his own, and he carefully and properly applied to the parties to the suit, in order that they might take proceedings for the satisfaction of his claim. I do not find that they were unwilling to do so; but unfortunately they set about it in such a way as to produce no result to the receiver. An order was even obtained, but without due service, and it could not be acted on. This was not the fault of Mr. Davison, who had not the conduct of the cause till 1839. Though he knew of these costs, [*57] charges, and expenses, and seems to have intended to "provide for them, yet nothing effectual was ever done. The receiver being entitled to costs, charges, and expenses, and the parties having delayed for ten years to provide for their taxation

[1] In New York a receiver in a judgment creditor's suit, may pursue by a suit in chancery, in his own name, funds of the debtor which have been fraudulently disposed of; and this may be done, although the creditor might, by amending his bill, impeach the same fraudulent transaction. The receiver may proceed thus, without the creditor's assent; such assent being important merely for his protection in regard to costs. Green v. Bostwick, 1 Sand. Ch. Rep. 185. Court of Chancery of the State of New York; Rule 192.

Rules of the

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