that the bill might be dismissed as against Beetham for want of prosecution; and that the order to amend might be discharged for irregularity.

Beetham was the only defendant who had been served with a subpoena, but all the other defendants were resident in England.

Mr. Wakefield and Mr. W. C. L. Keene, in support of the motion. By the 26th order of 1833, a defendant may not move to dismiss till the time has expired, within which a plaintiff may obtain an order to amend; and by the 13th order of 1831, an order to amend after answer, must be obtained within six weeks after the answer is put in. The fact, that other persons, besides Beetham, have been named as defendants in the bill, is immaterial, because they have never been served with subpœnas, and are not, therefore, parties to the suit -The King of Spain. v. Hullett (1); and as the order to amend was irregular, being obtained after the expiration of six weeks from the time at which Beetham's answer was put in, that order will not prevent the defendant from moving to dismiss-De Geneve v. Hannam (2).

Mr. Lloyd, contrà. A plaintiff is entitled to an order to amend, until six weeks have expired from the coming in of the last answer of the defendants; and the order to amend, which the plaintiff in this case has obtained, is an answer to the mo tion to dismiss Peacock v. Sievier (3).

The LORD CHANCELLOR said, that if the plaintiff's construction of the order were to be adopted, a plaintiff might secure the right to amend at any time, by having some party as a defendant on the record, and omitting to serve him with a subpoena till the plaintiff was threatened with a motion to dismiss. Naming a party as a defendant, without serving a subpæna, did not make him a defendant within the meaning of the 18th order. The defendant, against whom the injunction was granted, ought not to be deprived of the means of trying to get rid of the injunction, by bringing on the cause to a hearing under

(1) 1 Russ. & M. 7, n. ; s. c. 3 Sim, 338;,8 Law J. Rep. Chanc. 8.

(2) 1 Russ. & M. 494.

(3) 5 Sim. 553.

1

JACOB V. LUCAS.bou V1T

Practice. Pleading-Parties-Misjoinder-Trustees Breach of Trust.

A party, who was entitled under a will to the income of a trust fund for life, with remainder to his children (who were infants), obtained possession of the trust fund, and applied the produce of it to his own use. A bill was filed by the executrix of the surviving trustee of the fund, and the children of the tenant for life, by the said executrix as their next friend, for the purpose of compelling the tenant for life to make good the fund which he had sold:-Held, that as the executrix of the surviving trustee would be liable to the cestuis que trust, to make good the trust fund, in the event of the tenant for life failing to do so, she and the infant cestuis que trust were improperly joined as co-plaintiffs; and the bill was therefore dismissed, with

costs.

The facts of this case, so far as it appears necessary to state them, were as follows: -By the will of a testator, a sum of 7007. Bank of England stock, and 201. bank long annuities, were bequeathed (together with other sums) to Thomas Todd, John Henry Jacob, Richard Bere, and John Beague, upon certain trusts, for the benefit of his son Robert Tristram Lucas for life, and, after his death, for the benefit of his children.

The testator died in 1811, and his will' was proved by Todd and Jacob alone. His personal estate, not specifically bequeathed, being insufficient for the payment of his debts, part of the 7001. stock, and 20l. annuities, was sold by the executors; and the

remainder continued standing in the name of the testator. The ultimate amount of the stock, which was subject to the trusts of the will, (having been increased by some bonuses,) was 8251., and the amount of the annuities was 177. 10s.

Todd died in 1819, and John Henry Jacob died in 1828, having appointed his wife, Mary Jacob, executrix of his will. Richard Bere and John Beague having been then cited to prove the will of the testator, and having renounced probate, Robert Tristram Lucas procured letters of administration de bonis non, with the will annexed, of the estate of the testator, to be granted to himself; and having thus acquired controul over such stock as remained standing in the name of the testator, he sold out the 8251. bank stock, and 17. 10s. long annuities, and appropriated the proceeds to his own use.

The present suit was instituted by Mary Jacob, and the infant children of Robert Tristram Lucas, suing by the said Mary Jacob as their next friend, against Lucas and other parties; and prayed that Lucas might be declared responsible for the said several sums of 8251, bank stock and 177. 10s. long annuities; and that, in default of his investing those amounts upon the trusts of the will, certain other sums to which he was beneficially entitled under his father's will, and which had been paid into court, in a suit of O'Neil v. Lucas, might be appropriated in satisfaction of such sums of stock and annuities.

On the cause coming on to be heard, it was insisted, that the frame of the bill was incorrect in making Mrs. Jacob and the infant children of Lucas, co-plaintiffs; inasmuch as Mrs. Jacob, as the representative of a trustee who had permitted a breach of trust, was the party whom the other plaintiffs would require to make good the trust fund, in case the tenant for life

should not do so; and consequently her interests, and those of the infant cestuis que trust, who were her co-plaintiffs, might be directly opposed to each other.

In support of the bill it was urged, that all the plaintiffs had a common interest in obtaining the investment of the trust funds, and that they had a claim upon the defendant, R. T. Lucas, in the first instance; and that if it should eventually be found necessary for the children to institute proceedings against Mrs. Jacob, still their interests would not be in any way prejudiced by this suit.

Mr. Tinney and Mr. Benson appeared for the plaintiffs.

Mr. Pemberton, Mr. Rudall, Mr. Stuart, Mr. Cooper, Mr. Lutwych, Mr. Piggott, Mr. Glasse, and Mr. Stinton, for different parties.

The MASTER OF THE ROLLS, after stating the facts of the case, said, nothing could be plainer than that the infant plaintiffs were entitled to relief in respect of the gross breach of trust which had been committed and if that were all, there would be no difficulty in the case; but here, a bill was filed, not on behalf of the infants alone, but by them together with Mrs. Jacob. Suppose Robert Tristram Lucas should not make good to the parties the loss which had been sustained by this breach of trust, who would be the parties next resorted to? Those who had improperly permitted that breach of trust. These infants were thus connected, as co-plaintiffs, with a person with whom they might perhaps come into collision in future stages of the cause. His Lordship thought this was a difficulty which he could not get over; and he must therefore dismiss the bill, with costs.

Bill dismissed, with costs.

I. That in all cases in which it shall be alleged that the plaintiff is prosecuting the defendant, in this court, and also in some other court for the same matter, the defendant in eight days after filing his answer or further answer to the plaintiff's bill, shall be entitled, as of course, on motion or petition, to the usual order for the plaintiff to make his election in which court he will proceed, with the usual directions in that behalf, unless the plaintiff shall, before the expiration of the same eight days, have delivered exceptions to the defendant's answer, or have referred his further answer on former exceptions. And in case the plaintiff shall have delivered such exceptions, or referred the defendant's further answer within such time, the defendant shall be at liberty, by notice in writing to be served on the plaintiff's clerk in court, to require the plaintiff to procure the Master's report on such exceptions, within four days from the service of such notice. And if the plaintiff, being so served with such notice, shall not procure the Master's report in four days accordingly, or if the exceptions shall not be allowed, the defendant shall then be entitled, as of course, on motion or petition, to the usual order for the plaintiff to elect in which court he will proceed, with the usual directions. But in either of such cases the plaintiff shall be at liberty to move that such order may be discharged on the merits confessed in the answer.

II. That the plaintiff in any injunction cause having obtained the common injunction to stay proceedings at law, may (either before or after the answer of the defendant shall be put in, and whether such injunction shall or shall not have been continued to the hearing of the cause), obtain an order, as of course, for leave to amend the bill without prejudice to the injunction, but that such order shall contain an undertaking by the plaintiff to amend the bill within one week after the date of the order, and in default thereof the order shall become void. And that in case the bill shall be amended pursuant to such order, the defendant shall thereupon, and although he may not have put in his answer to the bill or the amendments thereof, be at liberty to move the Court on notice, to dissolve the injunction, on the ground that the bill, as amended, does not, even if the amendments be true, entitle the plaintiff thereto.

III. That in case an injunction to stay proceedings at law shall be prayed for by the bill, and shall either not be obtained, or having been obtained, NEW SERIES, VIII.-CHANC.

shall have been dissolved upon the merits stated in the answer, and the plaintiff shall afterwards amend his bill, and the defendant shall not plead, answer, or demur to the amended bill within eight days after appearance, the plaintiff shall be entitled to move for an injunction, upon affidavit of the truth of the amendments.

IV. That foreclosure causes when ready for hearing, may be ordered to be advanced for hearing, under the same circumstances, and subject to the same rules as other causes may be ordered to be so advanced.

V. That in all cases in which it shall appear that certain preliminary accounts and inquiries must be taken and made before the rights and interests of the parties to the cause can be ascertained, or the questions therein arising can be determined, the plaintiff shall be at liberty, at any time after the defendants shall have appeared to the bill, to move the Court on notice, that such inquiries and accounts shall be made and taken, and that an order referring it to the Master to make such inquiries, and take such accounts, shall thereupon be made, without prejudice to any question in the cause, if it shall appear to the Court, that the same will be beneficial to such (if any) parties to the cause as may not be competent to consent thereto, and that the same is consented to by such (if any) of the defendants as being competent to consent have not put in their answer to the bill, and that the same is consented to by, or is proper to be made upon, the statements contained in the answers of such (if any) of the defendants as have answered the bill.

VI. That whenever any order of course obtained from the Master of the Rolls in any cause marked for or set down to be heard before the Lord Chancellor pursuant to the General Order of the 5th day of May 1837, shall be alleged to have been irregularly obtained, any application to discharge the same for irregularity, shall in the first instance be made to the Master of the Rolls, and such cause and all other applications to be made therein, shall nevertheless continue subject to all the regulations of the said General Order as if this Order had not been made.

COTTENHAM, C.
LANGDALE, M.R.

LANCELOT SHADWELL, V.C.

2 N

I. That every person to whom in any cause or matter pending in this court, any sum of money or any costs have been ordered to be paid, shall, after the lapse of one month from the time when such order for payment was duly passed and entered, be entitled by his clerk in court to sue out one or more writ or writs of fieri facias, or writ or writs of elegit of the form hereinafter stated, or as near thereto as the circumstances of the case may require.

II. That upon every such order hereafter to be entered, the entering clerk of this court, in whose division the same may be, shall, at the request of the party leaving the same, mark the day of the month and year on which the same shall be so left for entry, and no writ of fieri facias or elegit shall be sued out upon any such order, unless the date of such entry shall be so marked thereon as aforesaid.

III. That such writs, when sealed, shall be delivered to the sheriff or other officer to whom the execution of the like writs issuing out of the superior courts of common law belongs, and shall be executed by such sheriff or other officer, as nearly as may be, in the same manner in which he doth or ought to execute such like writs; and such writs, when returned by such sheriff or other officer, shall be delivered to the clerks in court, by whom respectively they were sued out, to be left at their respective seats, and shall thereupon be filed as of record in the office of the Six Clerks of this Court. And that, for the execution of such writs, such sheriff or other officer shall not take or be allowed any fees other than such as are or shall be from time to time allowed by lawful authority for the execution of the like writs issuing out of the superior courts of common law.

IV. That if it shall appear upon the return of any such writ of fieri facias as aforesaid, that the sheriff or other officer hath by virtue of such writ, seized, but not sold, any goods of the person ordered to pay such sum of money or costs as aforesaid, the person to whom such sum of money or costs is payable, shall, immediately after such writ with such return shall be filed as of record, be at liberty by his clerk in court to sue out a writ of venditioni exponas in the form hereinafter stated, or as near thereto as the circumstances of the case may require.

V. That on every such writ of fieri facias and elegit so to be issued as aforesaid, there shall be indorsed the words, "By the Court," and also thereunder the calling and place of residence of the party against whom such writ shall be issued, and also the name and residence or place of business of the solicitor at whose instance the same shall be issued, and the name of the clerk in court issuing the same, and that every such writ be also indorsed for the sum to be levied according to the form used upon like writs issuing out of the superior courts of common law.

VI. That for every such writ of fieri facias or venditioni exponas so to be issued as aforesaid, there shall be allowed to the clerk in court issuing the same, the sum of eighteen shillings and sevenpence, and for every such writ of elegit the sum of one pound ten shillings, and that there be allowed to the solicitor at whose instance any such writ of fieri facias, elegit, or venditioni exponas, shall be issued, the sum of six shillings and eightpence for instructions for the said writ, and that there be also allowed to such solicitor the further sum of six shillings and eightpence for attending to procure a warrant, and for attending to instruct the officer charged with the execution of such writ.

Court of Chancery in a certain cause, or certain causes (as the case may be), wherein A. B. is plaintiff, and C. D. is defendant, or, in a certain matter there depending, intituled," In the matter of E. F." (as the case may be), by a decree, or order (as the case may be), of our said Court, bearing date the day of was decreed or ordered (as the case may be) to be paid by the said C. D. to A. B. And that of the goods and chattels of the said C. D. in your bailiwick you further cause to be made

interest upon the said sum of £- at the rate of £1 per centum per annum, from the day of

(1). And that you have that money and interest before us, in our said Court immediately after the execution hereof, to be paid to the said A. B. in pursuance of the said decree, or order (as the case may be). And that you do all such things as by the statute passod in the second year of our reign, you are authorized and required to do in this behalf; and in what manner you shall have executed this our writ, make appear to us in our said Court immediately after the execution thereof. And have there then this writ. Witness ourself at Westminin the year of our

ster, the day of reign.

We command you, that of the goods and chattels of C. D. in your bailiwick you cause to be made the sum of £, and also interest thereon, at the rate of £4 per centum per annum, from the day of (2), which said sum of money and interest were lately before us in our High Court of Chancery, in a certain cause, or certain causes (as the case may be), wherein A. B. is plaintiff, and C. D. is defendant, or in a certain matter there depending, intituled, " In the matter of E. F." (as the case may be), by a decree or order (as the case may be) of our said Court, bearing date the day of - decreed or ordered (as the case may be) to be paid by the said C. D. to A. B., and that you have that money and interest before us, in our said court immediately after the execution hereof, to be paid to the said A. B., in pursuance of the said decree or order (as the case may be). And that you do all such things as by the statute passed in the second year of our reign, you are authorized and required to do in this behalf; and in what manner you shall have executed this our writ, make appear to us in our said Court immediately after the execution thereof. And have there then this writ. Witness, &c.

No. 3.-Writ of Fieri Facias, on a Decree or Order of the Court of Chancery for Payment of Money and Costs.

VICTORIA, &c.

To the Sheriff of

, greeting.

We command you, that of the goods and chattels of C. D. in your bailiwick, you cause to be made the sum of £, which said sum of money was lately before us in our High Court of Chancery, in a certain cause, or certain causes (as the case may be), wherein A. B. is plaintiff, and C. D. is defendant, or in a certain matter there depending, intituled, "In the matter of E. F." (as the case may be) by a decree or order (as the case may be) of our said Court, bearing date the day of - decreed or ordered (as the case may be) to be paid by

(1) The day on which the decree or order was made; or if that were prior to the 1st October 1838, say, "from the 1st day of October 1838." (2) The day mentioned in the order.

the said C. D. to A. B., together with certain costs in the said order mentioned, and which costs have been taxed and allowed by G. H., Esq., one of the Masters of our said Court, at the sum of £—, as appears by the certificate of the said Master, dated the day of and that of the goods and chattels of the said C. D., in your bailiwick you further cause to be made the said sum of £(3), together with interest at the rate of £4 per centum per annum on the said sum of £- (4), from the day of ·(5), and on the said sum of £—— (3), from the day of —— (6), and that you have that money and interest before us in our said Court immediately after the execution hereof, to be paid to the said A. B., in pursuance of the said decree or order (as the case may be). And that you do all such things as by the statute passed in the second year of our reign, you are authorized and required to do in this behalf, and in what manner you shall have executed this our writ, make appear to us in our said Court immediately after the execution thereof. And have there then this writ. Witness, &c.

No. 4.-Writ of Fieri Facias, on a Decree or Order of the Court of Chancery for Payment of Money, Interest, and Costs.

VICTORIA, &c.

To the Sheriff of

We command you, that of the goods and chattels of C. D. in your bailiwick, you cause to be made the sum of £--, and also interest thereon at the rate of £4 percentum per annum, from the day of (2), which said sum of money and interest were lately before us in our High Court of Chancery, in a certain cause, or certain causes (as the case may be), wherein A. B. is plaintiff, and C. D. is defendant, or in a certain matter there depending, intituled," In the matter of E. F." (as the case may be), by a decree or order (as the case may be) of our said Court, bearing date the day of --- decreed or ordered (as the case may be) to be paid by the said C. D. to A. B., together with certain costs in the said order mentioned, and which costs have been taxed and allowed by G. H., Esq., one of the Masters of our said Court, at the sum of £-—, as appears by the certificate of the said Master, dated the day of -, and that of the goods and chattels of the said C. D. in your bailiwick, you further cause to be made the said sum of £together with interest thereon, at the rate aforesaid, from the day of —— (7), and that you have that money and interest before us in our said Court immediately after the execution hereof, to be paid to the said A. B. in pursuance of the said decree or order (as the case may be). And that you do all

(3) The costs.

(4) The money.

(5) The date of the order; or if that were prior to the 1st October, 1838, say, "from the 1st day

of October 1838."

(6) The date of the Master's certificate; or if that were prior to the 1st of October 1838, say, "from the 1st day of October 1838."

(7) The date of the Master's certificate of taxation; or if that were prior to the 1st of October 1838, say, "from the 1st day of October 1838."