な

1833. PEARCE

the fee, in case no such appointment should be made, to such male relation of the name of Pearce as should be in the nearest degree; and if there were several VINCENT. relations in equal degree, then to the eldest of such relations living at his death.

บ.

It is said that Thomas Pearce was the nearest male relation of the testator living at his death, and that, therefore, the testator must have intended that Thomas Pearce, to whom he had given an estate for life, with a limited power of appointment in fee, should be the person, in the events which have happened, entitled to take under this description. What would be the effect of such a construction? Why, that the power of appointment should not be limited to a male relation of the testator of the name of Pearce, but that the estates might be given to a mere stranger. Is there then to be found in this will a clearly expressed intention on the part of the testator that the remainder should extend to Thomas Pearce; or would not any man of plain understanding say, that it is the clear intention of the testator that Thomas Pearce

should not take under this limitation? It is quite inconsistent with the limited power given to Thomas Pearce of appointing to a male relation of the name of Pearce, that the testator should have intended to include Thomas Pearce in the description contained in the ultimate limitation, and thereby give him the power of defeating the object of the appointment. It is my duty, therefore, to submit this case to further investigation, and the only question is, in what manner it is to be further investigated. After the decision to which the Court of Exchequer has come, I cannot again send the case to that Court, and I rather regret having sent it 'at all; but having once sent the case to a court of law, I shall direct a second case to be sent to the Court of Common Pleas..

The

1833.

The case was argued before the Judges of the Court of Common Pleas on the 12th of June 1835, and the Judges took time to consider their certificate.

PEARCE

บ.

VINCENT.

A

JUDD v. WARTNABY.

MOTION was made, on the part of the Plaintiffs, that the Defendant might be ordered, within four days, to enter his appearance with the registrar, and consent to a serjeant-at-arms as in the case of a commission of rebellion returned non est inventus, in pursuance of an order made by the Master, dated the 14th of May, and that the answer of the Defendant to the Plaintiffs' amended bill might not be received by the Defendant's clerk in Court until such appearance was entered accordingly.

On the 14th of May the Defendant made a special application under the 3 & 4 W. 4. c. 94. and the orders of the Court, for further time to answer the amended bill, the second order for time expiring on the following day. The Master was of opinion that no case was made for granting further time except upon the terms imposed upon defendants on accepting the third order for time; and he accordingly ordered that the Defendant should be allowed a fortnight's time to put in his answer to the amended bill, the Defendant entering his appearance with the registrar, and consenting to a serjeant-at-arms as in the case of a commission of rebellion returned non est inventus. On the same day on which this order was

made,

ROLLS. 1835. June 4.

The twentyfirst of the last

New Orders

does not alter

the former practice in respect of the third application for time, where the Master gives no special

direction.

1835.

JUDD

v.

WARTNABY.

made, the Defendant's solicitor gave notice to the Plaintiffs' solicitor, that the Defendant would not accept of the conditional order for further time. The Plaintiffs themselves, on the 22d of May, drew up the conditional order.

Mr. Pemberton and Mr. G. Russell, in support of the motion.

Pending the conditional order giving a fortnight's time, which was made on the Defendant's application, it was impossible for the Plaintiffs' clerk in Court to issue an attachment. It became necessary, therefore, for the Plaintiffs to draw up the order upon the Defendant's refusal to do so, for otherwise the Defendant would obtain all the benefit of the indulgence without performing the condition upon which further time was granted; namely, entering his appearance with the registrar, and consenting to a serjeant-at-arms. This was an order made upon notice to the other side, which gave a benefit to the Defendant, subject to a condition, and it was not competent to the Defendant to refuse to comply with that order, and to take the benefit while he escaped the performance of the condition. By the old practice, upon the third application for time, the party obtaining the indulgence was required, within four days, to enter an appearance with the registrar, and consent to a serjeant-at-arms; and if he did not do so, an attachment might issue, as if no order for further time had been made. Under the twenty-first of the last New Orders, no time is fixed for the performance of the condition, and at which the attachment may issue; and the Court is bound, therefore, to take care that the terms upon which the indulgence was granted are complied with.

Mr.

Mr. Blunt, contrà.

The order, being conditional, implies the alternative of

1835.

JUDD

a refusal to accept it, and that refusal was communicated WARTNABY/ to the Defendant before the time for answering under the former order for time had expired. The Plaintiffs were at liberty if they thought proper, as soon as the time for answering had expired, to issue an attachment; but they precluded themselves from so doing by their own irregularity, in having drawn up the order which the Defendant refused to accept. If the order had not been drawn up, it would have been no bar to the issuing of the attachment: Gayler v. Fitzjohn (a), The Court is called upon by this application to make a conditional order an absolute one, and to compel the Defendant to do an act by which he may be deprived of his liberty; a proceeding for which the practice of the court furnishes no precedent.

Mr. Pemberton, in reply.

The effect of the New Orders cannot, from the nature of the thing, be determined by reference to precedents, and where a difficulty arises in acting under them, the Court must make a precedent for the regulation of future practice. It is clear that it was not intended by the twenty-first order, to give the benefit of further time to the Defendant, unless he complied with the condition. The third order for time under the old practice, was an ex parte order, and it was open to the Defendant to avail himself of it or not as he thought proper. Here the order was made upon notice, and was binding upon both parties.

The

(a) 1 Sim. 386.

1835.

JUDD

v..

WARTNABY.

The MASTER of the ROLLS.*

It is clear that the twenty-first of the new orders does not alter the old practice, but that it leaves to the Master the same jurisdiction in respect of the three applications for time, unless under any special circumstances the Master shall otherwise direct. By the former practice, four days were allowed to the Defendant for the performance of the condition, and it cannot possibly be intended by the New Order to place the Defendant in a much worse situation, as he would be, if he were entitled to no time, and the conditional order might be made an imperative one. There may be a defect in the frame of the Order, but I am clearly of opinion that the Plaintiffs cannot compel the Defendant to enter an appearance, and consent to a serjeant-at-arms, and that a compulsory consent, indeed, cannot be the effect of any conditional order. In the present case, there is the less ground for the application, as the Defendant, before the order for time had expired, and consequently before the Plaintiffs could have adopted any proceeding, informed the Plaintiffs that he should not take advantage of the conditional order.

Motion refused with costs.

• Sir C. Pepys.