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358 37 for mana city orplian
36 for first derived, read paid
34 for no, read a
all of them together
7 insert much, after accomplish
16 for land, read plate 339 32 for first, read of trust ,
7 after so, insert right
20 for charge, read change 343 10 for interested, read entrusted
23 insert no, after occurred 344 32 insert of precedent, at end 346 12 for previously, read precisely
32 after ground, add348 2 afler London dele , and for and, reud
are 351 24 dele only
last line, for whether, read that 352 9 for bill read poll
10 for arrangement, read management 333 20 for but, read and 21 for and, read but, dele not after was,
and for Companies, read Common
Council 354 37 for as to, read and 355 6 for when, read that
18 dele ;
8 for by, read to 357 1 add members at the end 27 for, after council, put, and inverted
commas above, to show quotation ends there; then in line 29, putafter project, and inverted commas
before as 358 24 for with all, road withal 37 for managing a city or place, read mar
rying a city orphan 360 18 for commissions as, read commis
sioners 30 insert, after first Companies, dele after
9 insert, after want, and it, after give
37 for here, read there 377 28 for to form, read from
29 dele second in 379 37 after Parliament, insert and 380 18 for respect, read repeal 382 12 afler other, insert property 390 21 for have, read has
26 after granting, insert leases in
[In the High Court of Chancery.
PROCEEDINGS ON THE MOTION FOR A RECEIVER,
RIGHT HON. LORD COMMISSIONER PEPYS,
RIGHT HON. LORD COMMISSIONER BOSANQUET,
In the Court of Chancery;
Copied from the Transcript of the Short-hand Writer's Notes.
Monday, 23d November 1835.
SIR WILLIAM FOLLETT.—My Lords—
Sir CHARLES WETHERELL. — Before my learned friend goes on, I think it necessary to state to your lordships that I appear in this case for the City of London--for what purposes I know not; they have not thought fit to serve the City of London with the motion, although, when it comes to be fully discussed and opened, you will perceive that the City of London are one of the most essential parties in this measure. Your lordships are perfectly well aware, that although it may serve the purposes of persons on one side of the question not to give a notice of motion to another party, it is the right of that party hereafter to appeal against any order which is made ex parte, and in the absence of a person who ought to be served with notice.
Sir W. FOLLETT.–We have no objection to the City of London appearing now.
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, I 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. (6) 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