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Sir C. WETHERELL.—Then that puts an end to the question.
Sir W. Follett. --They appear at their own risk; we do not choose to serve them with a notice.
Sir C. WETHERELL.—That is again another finesse of my learned friend, whom we have great satisfaction in seeing in this Court. There are matters of finesse in the Courts which are usually graced by the presence and the learning, the talent and the eloquence, of my honorable and learned friend: in this Court, also, finesses are sometimes practised-in this Court, graced by the occasional presence of my learned friend, and less graced because his presence is not constant here, but occasional. We have here, also, our finesses of practice; and one is, that if persons think they will be exposed to double costs in a motion which they cannot succeed in, their habit sometimes is, not to serve a party who ought to be served : and when my learned friend says, Well, we have no objection to your appearing, but we will not pay you your costs, that is a finesse which, by implication, admits that we ought to serve you with notice; but when our motion is dismissed it is extremely convenient not to have served you, the City of London, who ought to have been served, and who, if the motion is dismissed, will have their costs paid. The finesse is, to argue the motion in the absence of the party who ought to be served with notice, though if that party chooses to appear he may appear at his own cost. Now it may well be supposed, that with respect to costs, the City of London are not in that condition that the reception or payment of costs is a matter of such importance to them; nevertheless, as a general rule, it is fraught with impropriety in a case involving considerations of high importance, that a motion respecting the authority, and the jurisdiction, and the rights of the City in the government and management, and control and visitation, of an important public body, that a motion of this sort should be discussed in their absence, and that by and by an equally important— I was going to say, almost a more important-motion should be made by those by whom the motion is made ; that a motion of this sort should be discussed, and that it should be said-You may appear and defend yourselves, if you please, but you must do so at the peril of costs,-1 must take the liberty to say that that is a perfect finesse in the management of this motion. I can only say, that on the part of the City of London I believe your lordships will see, in the progress of this case, that the City of London are a necessary party in this motion; and I contend, therefore, that the City of London are to be considered as served with this notice of motion, and that by and by, if it is dismissed with costs, the City of London will have their costs.
Lord Commissioner Pepys.-If it is dismissed with costs because the City of London ought not to be parties to it, you will not be entitled to costs; but if it is dismissed with costs upon the merits, of course you will be entitled to costs if you are necessary parties.
Sir W. FOLLETT.- What I say is, that we have no objection to the City of London appearing, but we do not wish to be considered as serving them with notice, because, I say, they ought not to appear, and they appear at their own peril.
Sir C. WETHERELL.-It is not for me to assume confidence in anticipating what the judgment of your lordships may be, but I may presume with confidence to anticipate what your opinion will by and by be. You will by and by say that the City of London must be served with this motion; and that you cannot stir without having the City of London here.
Lord Commissioner Pepys.—Under those circumstances, in the way in which it stands, you will be considered as having been brought before the Court.
Sir W. FOLLETT.—I do not know whether we are to understand that; my learned friend does appear.
Sir C. WethereLL. I have already stated that before this motion is disposed of I shall claim to be heard.
Mr. WiGRAM.— And you appear now.
Sir C. WETHERELL.-In short, by and by, when this motion has been opened for five minutes, you must come to the point, and that point is, whether you are to make an experimental motion at the hazard of putting the City of London into the situation of opposing it at their expense, and not at yours. Now that is the plain upshot of this ingenious mixture of legal and equitable finesse.
Sir W. Follett.-I understand now that my learned friend Sir Charles Wetherell does not appear for the City of London, and I did not suppose that he would; for I think your lordships will see that the City of London have no interest in this case, and that they ought not to be made parties to it.
Sir C. WETHERELL.—If you mean to say that I do not mean to appear in the motion, you have misinterpreted what I have said. Before your lordships make an order in this case I shall claim to be heard for the City of London.
Sir W. FOLLETT.- Whether my learned friend means to appear or not, probably he should state at this stage of the case. He says it is hard to put the City of London to hazard. If he is right in what he has said, that the City of London ought to be parties, they are under no hazard.
Sir C. WETHERELL.- We are here defendants in the suit.
Lord Commissioner Pepys.--Our rule is this : of course the Court can form no opinion till the case is heard, whether a party ought to be served; but if in the course of the discussion it appears that another party ought to be brought before the Court, of course the discussion is delayed till that party is brought in.
Sir W. FOLLETT. — Then I understand that my learned friend does not appear now.
Sir C. WETHERELL.-When I have heard what you state I will tell you whether I appear.
Mr. Knight.- Probably it would be convenient to your lordships to ask my learned friend what parties he has served.
Sir W. FOLLETT.-My learned friend Mr. Knight appears for the Irish Society.
Mr. Knight.-I appear for the Irish Society; but I merely suggest, more as amicus curiæ than in any other capacity, that it might be convenient to know what parties have been served, but state no objection whatever.
Mr. WIGRAM.-I understood your lordship to put the point thus :-if in the progress of the argument you find that the City of London have such an interest as that this motion cannot be
disposed of without their being made parties, then of course the motion will stand over to make them parties; then if we succeed in the motion, the costs will be decided according to that result; and if we fail in the motion, the costs will be decided according to that result. Before we open the case now we must know whether that party does mean to say that he appears at his own peril; we cannot open the motion without knowing whether the interest which they say they have is to be taken into our account in opening, or not.
Lord Commissioner Pepys. -- I understand that Sir C. Wetherell elects not to be a party to this motion.
Sir C. Wetherell. — The time to elect has not yet come.
Sir W. FOLLETT.--At present, I understand the only parties before the Court are the Skinners' Company, and the Corporation of the Irish Society. Now this is a motion on the part of the Skinners' Company, to call upon the Irish Society to pay into the Bank, with the privity of the Accountant-General of this Court, to be placed to the credit of this cause, the sum of 47191. 4s. 6d., appearing, by the answers of the said defend. ants, and of the defendants, John Thomas Thorpe and Henry Schultes, to the original bill, and the printed accounts therein referred to, as the balance in the hands of the defendants, the Irish Society; and that the said money, when so paid in, may be laid out in the purchase of 31. per cent. Consolidated Bank Annuities, with the privity of the said Accountant-General, in trust in this cause; and that a Receiver or Receivers may be appointed of the rents and profits of the estates and premises in the pleadings in this cause mentioned, in the possession of the defendants, the Irish Society, with all usual directions ; and that the said defendants, the Irish Society, may be restrained, by the injunction of this Court, from further collecting and getting in the rents and profits of the said estates, or any part thereof. My Lords, that is the motion, in support of which I have the honour to appear before your lordships; and the motion is made in a cause in which the Skinners' Company are the plaintiffs, and the Irish Society are the defendants, with the other Companies of the City of London, who have a joint interest in this proceeding with the Skinners' Company. The object of the suit is,
Sir C. WetherELL.—The City of London is also a party. There is also John Thomas Thorpe, Alderman, a Governor of the Society, lately dead ; and I do not know whether that gap has been filled up; probably a dead Governor must be replaced by a living Governor.
Sir W. FOLLETT.-It would seem as if my learned friend was appearing in the cause, though he said that he had disappeared just now. The City of London is a defendant in this cause, and the City of London represents the interest which was originally in two of the Companies of London, and now vested in the Corporation of the City of London; therefore it was necessary in that character that they should be made defendants to the suit.
The object of the bill is to have a declaration that the Companies of the City of London are the parties beneficially interested in the rents and profits of the estates now in the hands of the Irish Society; and to have a declaration that that Society are Trustees for those Companies. The bill also goes on to pray an account, and for the appointment of a Receiver ; and the main question in the cause is, whether the Companies in London are not entitled to have a declaration, that the Irish Society are Trustees for them in the management of this property.
Now I will state to your lordships, in the outset, that the property in question consists of certain town lands in the neighbourhood of the city of Londonderry, and the town of Coleraine, in Ireland, and the profits of certain ferries and fisheries in the county of Londonderry. It was property which remained in the hands of the Irish Society at the time of the original grant of King James the First, when the rest of the property of Londonderry, held by the City Companies, was divided equally among them. This property was considered not to be capable of division, and remained in the hands of the Irish Society. Your lordships are, no doubt, aware that the City Companies hold considerable property in the county of Londonderry; that each of the twelve Companies has