wife, (Anne Barlow) and her assigns, for life; and, after her decease, to trustees in trust for the petitioner and his assigns during his life, without impeachment of waste; and, after his decease, to the use of his first and other sons, in tail male, with the ultimate remainder and reversion in fee simple to John Lout Phillips. The petitioner had no children. In 1826 this bill was filed by John Lout Phillips, as the only person in esse who had an estate of inheritance under the will of the testator, Hugh Barlow, against Anne Barlow, and the petitioner, praying that certain timber trees, which had arrived at maturity and were fit for cutting, might be felled and sold, and the produce laid out in the purchase of estates, to be settled to such uses as would best correspond with the uses of the will of Hugh Barlow. A decree was made, in pursuance of which a quantity of timber was, from time to time, cut down, amounting to about 7,6227., which was ordered to be paid into court, and the interest of which was paid to the said Anne Barlow during her life.

The petition further stated, that Anne Barlow had since died; and the petitioner, who still remained a bachelor, had become entitled to the rents and profits of the estates before mentioned for his life, without impeachment of waste; and the petition prayed that the sum of 7,6221., the produce of the sale of the timber as aforesaid, might, after payment of certain expenses necessarily incurred, be paid over or transferred to the petitioner.

It appeared that John Lout Phillips died; and his representatives, who were present before the Court by bill of revivor, opposed the petition, on the ground that the petitioner was entitled only to the dividends for life of the fund arising from the sale of the timber, and not to the fund itself, which, they contended, formed part of the corpus of the estate, and belonged to the person who should be entitled to the inheritance.

Mr. Wilson and Mr. Stinton, in support of the petition, contended, that the fund, which represented the timber, belonged to the tenant for life, without impeachment of waste it was necessary, for the good of the estate, that certain timber should be felled during the life of the first tenant for life,

who was unable to cut it. In case that timber had remained on the estate, the petitioner would have been entitled, on coming into possession of the property, to have cut it down for his own benefit; and the Court, in ordering the timber to be cut, did so for the general benefit of the estate, and not to deprive the party next entitled of the full enjoyment of his rights and privileges. The case of Waldo v. Waldo (1) was exactly in point. As to the equitable remedies, there were many cases in which the Court had refused to quash an injunction against cutting down timber at the instance of one tenant in common against the other.

Smallman v. Onions, 3 Bro. C.C. 621.
Twort v. Twort, 16 Ves. 128.

Mr. Stuart and Mr. Evans appeared for persons in the same interest.

Mr. Bethell and Mr. Glasse, contrà, contended, that the proceeds of the timber belonged to the estate, and represented the estate itself, and must go according to the inheritance. In Waldo v. Waldo the whole fee simple of the estate was vested in the trustees, and, consequently, the timber; but here only a moiety of the estate was in the petitioner. When it was shewn to the Court that it was necessary for the good of the estate that certain timber should be cut, it was necessary to have the consent of the person entitled to the inheritance, but a tenant for life, though without impeachment of waste, could give no such consent.

Tooker v. Annesley, 5 Sim. 235.
Pigot v. Bullock, 1 Ves. jun. 484.

The VICE CHANCELLOR.-This case does not appear to me distinguishable from Waldo v. Waldo in substance. The bill was filed by the person who was the reversioner in fee of the estates against Mrs. Barlow, who was first tenant for life, impeachable for waste, and against the tenant for life in remainder, who is unimpeachable for waste. There was a decree in the cause, and a reference made to the Master: by the first decree, liberty was given to apply; and, when the cause was heard, on supplemental bill, liberty was again given to apply. I mention this, because it was suggested in

(1) 12 Sim. 107; s. c. 10 Law J. Rep. (N.s.) Chanc. 312.

the argument that there might be difficulty in proceeding in this matter by petition. The case of Waldo v. Waldo was very similar to this; and I directed the proceeds of the timber to be paid to the tenant for life, who was not impeachable for waste; that case has not been appealed: and when you find a case has been treated in a certain manner all along, and that there has been no appeal, it must be looked upon as a precedent in considering the case again. I am quite satisfied that what was done in that case was right; and as I find nothing in this case to distinguish it, in substance, from Waldo v. Waldo, I think that the fund in court should be paid out to the petitioner. Any other order would be manifestly unjust.

Bill, Dismissing-16th and 17th Orders of November 1831.

The defendant moved to dismiss, after putting in his answer, and the plaintiff undertook to speed, but neglected to comply with the undertaking. No replication was filed, and the plaintiff required no commission. A motion by the defendant to dismiss was refused.

This was a motion that the plaintiff's bill might be dismissed for want of prosecution.

The bill was filed on the 27th of January 1844, and the answer was put in on the 21st of March 1844. On the 24th of July a motion was made, under the 16th and 17th Orders of November 1831 (1), that the plaintiff's bill might be dismissed for want of prosecution. On that occasion an order was made, that the plaintiff should file a replication, serve subpoenas to rejoin, and obtain and serve an order for a commission to examine witnesses, if he required such commission, within three weeks from that time, and give rules to produce witnesses, and pass publication in the second term next after the day on which the order for the commission should be served, and set down the cause for hearing and serve

(1) Ord. Can. 10; 1 Law J. Rep. (N.s.) Chanc. 1.

subpoenas to hear judgment returnable in the succeeding term, or, in default thereof, that the plaintiff's bill should stand dismissed with costs. The plaintiff had neglected to comply with the terms of his undertaking to speed, and no proceedings had taken place in the cause since the defendant's answer was filed on the 21st of March 1844.

Mr. Hoare appeared in support of the

motion.

Mr. Heathfield, contrà, said, that as the plaintiff required no commission, the order did not apply; and he was remitted to the old practice, and cited—

Daniell v. Austen, 8 Sim. 19.

Smith v. Oliver, 3 Myl. & Cr. 165; s. c. 6 Law J. Rep. (N.s.) Chanc. 328. Crooke v. Trery, Ibid. 168.

Mr. Hoare cited Padmore v. Bodfield (2), and asked for costs, there being no replication filed-Darby v. Smale (3).

The VICE CHANCELLOR said, there being no replication filed, it made the case better for the plaintiff; but, as Padmore v. Bodfield was an authority in favour, he should refuse to make any order on the motion.

Demurrer-Company-Want of Equity and Want of Parties-Pleading.

A bill was filed by three of the directors of an assurance association, on behalf of themselves and all others, shareholders therein, or who were interested in the property of the association, except the two defendants. The bill stated that the shareholders were very numerous; that the affairs of the company were managed by a board of directors; that the plaintiffs, as three of the directors, and with the authority of the board, accepted and signed an assurance of 500l. on the life of A. B, who died within two months after the date of the policy, of a fit of epilepsy, having previously assigned the policy to one of the de(2) 1 Beav. 367.

(3) 1 Hare, 490; s. c. 12 Law J. Rep. (N.s.) Chanc. 30.

fendants, the other defendant being A. B.'s administrator. The bill contained many charges of fraud and collusion against the defendants, and prayed the delivery up of the policy, or that the plaintiffs might be otherwise relieved therefrom in such manner as to the Court might seem fit. A demurrer for want of equity and want of parties, was overruled.

The bill was filed by three of the directors of an association, called The Alfred Home and Foreign Life Assurance and Mutual Annuity Association, on behalf of themselves and all others, shareholders in the said association, or who were otherwise interested in the property or profits of the association, except the defendants. The bill stated (amongst other things) that the association had since the formation thereof, and at that time consisted of a very large number of persons, and so numerous that it was impossible to make them parties to the suit; that the business and affairs of the company or association were managed and conducted by a board of directors; that on the 1st of April 1841, the defendant Charles Herbert Croft, who occasionally acted as the agent of the association, applied to Mr. Maltby, as the solicitor to the association, for the purpose of ascertaining whether the association would be willing to effect an insurance on the life of Benjamin Walters, who would be sixty years of age on the 1st of May next; in answer whereto the defendant Croft was informed, on behalf of the association, that there would be no objection to the age of the party, if the life were a good one. The bill then proceeded to state, that after Benjamin Walters had in writing satisfactorily answered the usual printed questions, the plaintiffs, as three of the directors of the association, and with the authority of the board of directors, were induced to accept the proposed assurance on the life of Benjamin Walters, and they subsequently, in June 1841, signed a policy of assurance for the sum of 500l., at a premium of 31l. 16s. 8d. One of the conditions of assurance printed on the back of the policy was to the effect, that all premiums and other monies which should have been paid to the association in respect of any policy which might have become void, should, subject to the regulations and conditions thereinbefore mentioned, be

forfeited to the association, and all claims upon the association, in respect of such policy, should, subject as aforesaid, cease and be absolutely void. Benjamin Walters died about two months after the granting of the policy, intestate, and the defendant Mary Walters became his administratrix, and brought an action on the policy.

The bill then charged, that the policy of assurance, though effected in the name of Benjamin Walters, was in fact effected by and for the sole benefit of C. H. Croft; and that very shortly before the time when the policy was effected, B. Walters had been attacked with paralysis or palsy, and that he was subject to fits of apoplexy or epilepsy, which tended to shorten or endanger his life, and that the same was well known to B. Walters and C. H. Croft, but was carefully concealed from the association. The bill further charged, that a gross fraud was attempted to be practised upon the association, in making the representations therein before set forth, as to the state of health of B. Walters, and that C. H. Croft, who was fully cognizant of the fraud attempted to be practised on the association, nevertheless alleged that the policy had been duly assigned to him by B. Walters previously to his decease, for a valuable consideration; and that the association had lately discovered, as the fact was, that finding, under the circumstances aforesaid, he was unable to establish any valid claim to the sum of 500l., in consequence of his not having a sufficient interest in the policy, C. H.Croft, some time back, entered into a plan with Mary Walters, as such personal representative as aforesaid, whereby C. H. Croft, upon the promise of payment to her of some portion of the monies to be recovered upon the policy, prevailed upon Mary Walters to take out letters of administration to the estate of Benjamin Walters, for the purpose only of recovering the sum of money secured on the policy, and that it had been agreed between the defendants, Mary Walters and C. H. Croft, that Mary Walters should, immediately upon recovering the sum secured on the policy, deliver over such sum to C. H. Croft, subject to such deduction as had been so agreed upon, as aforesaid, as a remuneration to Mary Walters. The bill prayed that the policy might be delivered up to the plaintiffs to be

cancelled, or that the plaintiffs might otherwise be relieved therefrom in such manner as the Court might think fit; and that, in the meantime, the defendant Mary Walters might be restrained by the order and injunction of the Court, from prosecuting the action, commenced against the plaintiffs, and from commencing any other action upon the policy. The two defendants filed separate demurrers, for want of equity, and want of parties.

Mr. Wood, in support of the demurrers, objected that the bill contained no offer on the part of the three directors to return the premium that had been paid, although the association at large, if present, might think it right to repay the same; that it ought to have been stated in the bill that the plaintiffs had the authority of the body of directors for filing the bill, otherwise all the directors ought to have been made parties to it; that the defendants had no means of getting back the money already paid to the association, unless the directors, who had the management of its affairs, were made parties to the suit; that if the present bill were eventually dismissed by the Court, the board of directors would not be thereby prejudiced, and might immediately afterwards file a new bill against the defendants; and that if relief were granted to the plaintiffs, at the hearing of the cause, there was still no one to repay to the defendants the amount of the premium that had been advanced.

Bromley v. Holland, Coop. 9; s. c. 7
Ves. 3.

Mason v. Gardiner, 4 Bro. C.C. 436.
Whitmore v. Francis, 8 Price, 616.
Attwood v. Small, 9 Law J. Rep. (N.S.)
Chanc. 132.

Richardson v. Larpent, 2 You. & Col.
N.C. 507.

Mr. Kindersley and Mr. Hetherington, in support of the bill, contended, that the form of the prayer of the bill, which sought "that the plaintiffs might otherwise be relieved from the policy in such manner as the Court might think fit," was a satisfactory answer to the defendants' objection of the want of an offer to repay the premium; that the case of Attwood v. Small had no

application to the present case, inasmuch as in the former case relief was prayed against the whole company; that the plaintiffs, who had placed themselves in the situation of trustees for and represented the association by signing the policy of assurance, were in a situation analogous to that of the directors at large, in Attwood v. Small.

The MASTER OF THE ROLLS, after adverting to the facts, stated, that the form of the prayer of the bill was a satisfactory answer to the demurrer for want of equity; that as to the demurrer for want of parties, it had been urged that something would have to be performed on behalf of the association, which, it was alleged, was not properly represented in the pleadings; but it must be recollected that the plaintiffs, though not bound to do what was required of them by the defendants, would not have relief granted them unless they undertook to do what was just and equitable to the defendants; that it was also objected, for the defendants, that if the present bill were to be dismissed, the other directors of the association might immediately afterwards file another bill to the like effect as the present, against the defendants; in answer to which his Lordship stated, that anomalies would necessarily arise in cases like the present, and the Court could only adhere to general principles; that one rule was, that a few persons might file a bill on behalf of a large body, and the Court would afterwards contrive how to deal with any difficulty that might present itself; and that, in the present case, his Lordship's impression was, that the other parties interested, being members of the association, would not be allowed to question what might be done by the three directors, who were the present plaintiffs.

Contempt, Defendant in-Exceptions to Report.

A defendant, notwithstanding he is in contempt for non-payment of costs, may file and set down exceptions to the Master's report in the cause, such proceedings being purely matters of defence.

In this case, the defendant, W. Morison Wyllie, who was in contempt for non-payment of costs, in some collateral proceedings in the cause, had filed exceptions to the report of the Master, both on behalf of himself and other defendants (infants) in the same interest, for whom he was guardian, and had obtained an order for setting down the exceptions to be argued.

Mr. Teed and Mr. Hargrave, for the plaintiffs, now moved, that the exceptions. might be taken off the file for irregularity, and that the order for setting down the same might be discharged; and they cited

Wilson v. Bates, 3 Myl. & Cr. 197; s. c. 7 Law J. Rep. (N.s.) Chanc. 131. (1) Ord. Can. 171; 10 Law J. Rep. (N.s.) Chanc. 413.

(2) 12 Sim. 362.

Vowles v. Young, 9 Ves. 172. 1 Daniell's Ch. Pr. 655.

Mr. Rolt, contrà. The proposition contended for on the other side is, that a plaintiff, having once got a defendant into contempt for non-payment of costs, which he may be unable to pay, is to be at liberty to prosecute his cause ex parte, and sweep off the whole of the property, without the defendant having the means of making any resistance. A party in contempt cannot proceed actively, but he is always allowed to defend himself. In this case, the filing and setting down the exceptions is purely defence. Upon the application to confirm the report, the defendant must be served; and he will then be entitled to appear and resist the confirmation; and he can do that in no other way than by taking exceptions to the report

King v. Bryant, 3 Myl. & Cr. 191; s. c. 7 Law J. Rep. (N.s.) Chanc. 167. Plumbe v. Plumbe, 3 You. & Col. 622; s. c. 9 Law J. Rep. (N.s.) Ex. Eq. 9. Bickford v. Skewes, 10 Sim. 193; s.c. 8 Law J. Rep. (N.S.) Chanc. 188.

WIGRAM, V.C.-I entertain not the least doubt of the practice, that a party in contempt, merely for non-payment of costs, is at liberty to defend himself against any proceeding the plaintiff may be instituting against him. This is that case; and it is not the case of a defendant in contempt, wanting to prosecute the cause for his own benefit. Up to the filing of the exceptions, it was pure resistance, and nothing else; and if, as I suppose, nothing less than the setting down the exceptions would be an answer to the plaintiffs' application to confirm the report, then the whole of the motion falls under the same observation. If the parties wish it, they may speak to that point again.

The plaintiffs admitting that the mere filing the exceptions would not be an answer to the application to confirm the report, the motion was refused, with costs.