norant of his

right.

land the defendant alone entered into possession. The plaintiff's abroad and igwife died in 1817 without having ever come back to this country, and without ever having been informed that she had any interest in the property. The plaintiff himself did not return here until 1822, and then for the first time learnt that the defendant and his deceased wife were tenants in common. The plaintiff filed his bill in the double character of tenant by the curtesy, and administrator of his wife. A demurrer for want of equity was put in, and argued on the ground that the sole receipt of the rents during so many years must be considered as an adverse possession and ouster. Sir John Leach overruled the demurrer.

JONES v. WILLIAMS.

LORD LYNDHURST.-I have more than once since I have sat here had occasion to state, that on motions of this kind-for a receiver-where a defendant, materially interested in opposing the plaintiff's case, has not answered, I regard the answers already filed as affidavits. The plaintiffs therefore, until all the material defendants have answered, are entitled to file further affidavits, whether those affidavits support the statements of the bill generally, or are intended to be in reply to such answers as have been put in.

CAMPBELL V. BAILLIE.

L. C.

July, 1830.

Where a mate

rial defendant has not an

swered, the answers already filed regarded as affidavits.

V.C. January, 1823.

Creditor, exe

cutor of his debtor, held to

have adopted his testator's surviving part ners as his

BAILLIE lent to D. Campbell 10,000l., who advanced the same to the firm of Campbell & Co. in which he was a partner. Campbell & Co. were the agents of Baillie. D. Campbell died. Baillie was his executor. Baillie still continued to employ Campbell & Co. as his agents. He received from them the interest of the 10,000l. After some years Campbell & Co. be- debtors. came bankrupts. Baillie then insisted that the assets of D. Campbell must be applied to pay the 10,000l. Sir John Leach was however of opinion that under the circumstances he must be taken to have adopted Campbell & Co. as his debtors: and that the estate of D. Campbell was consequently released from the debt.

LEE v. HARRISON.

V.C. November, 1826.

Objection to evidence, which

comes before the case is

THERE was evidence in this cause, the admissibility of which, although doubtful, was not questioned when the depositions were read; but before the argument was ended, it was insisted that such evidence ought not to be received. The question was, closed, is not whether the period for taking such an objection was not gone by. Sir John Leach.-In this Court a good deal of liberty has

too late.

V. C. February, 1823.

decree for ac

count.

always been allowed to counsel as to the time of objecting to evidence. If there be a valid objection, and it comes before the case is closed, the Court will listen to it: it is not too late.

SMYTHE v. MACTAGGART.

Attempt by evi- THE bill, which prayed for an account of various dealings bedence to prevent tween the plaintiff and the defendant, was alleged to have been filed for the purpose only of annoying the defendant; and the latter with the hope of preventing a decree had gone into much evidence to show that the plaintiff was in possession of all the accounts relating to the above dealings, and that the same were such as to leave no doubt of there being a very large balance due from the plaintiff. Sir John Leach.-According to my experience in such a suit as this the plaintiff is entitled to a decree, unless the defendant can show that there has been some settlement of the accounts. It is possible the object may be vexation: yet even assuming it to be plain, that the balance is greatly against the plaintiff, how can it be contended that he has not a right to know the amount? The amount may be less than the witnesses state. But it is intimated that the defendant might be willing to release the plaintiff. Were that so, I do not think it would make any difference. However strong the testimony-however obviously improper the motive in persevering in the suit—unless a defendant can say the accounts have been settled-unless that is shown, it is of course that the plaintiff should have a decree.

V. C.

January, 1824.

Plea of settled account.

V. C. February, 1824.

Bills for equit able execution.

TAILOR v. SIMPSON.

SIR JOHN LEACH.-It is no objection to this plea that various circumstances are averred as amounting to a settlement of accounts. The objection is not the averment of these circumstances, but the absence of a substantive averment of a settled account. A plea may aver several circumstances and still not transgress the rule, which requires that it should reduce the defence to a single point: as where the several circumstances all tend to that single point: but still the single point must be there -it must be distinctly averred by the plea-the defence must be brought to that. It is in this last respect that this plea is defective, and must be overruled.

KIRKBY V. DILLON.

SIR JOHN LEACH.-Formerly it was very common for debtors to convert their legal estates into equitable estates for the purpose of defeating such of their creditors as might obtain judg

ments. That practice gave rise to numerous bills in this Court for what is called an equitable execution. In many cases of that kind, the legislature has now given to creditors full relief in the courts of common law by the statute of frauds, which directs the sheriff to deliver execution of all lands, which any person is seised, or possessed of, in trust for him against whom the execution is sued. Yet, however liberal the construction, which the courts of common law may be disposed to put upon this enactment, it is obvious there must be cases in which a debtor has a beneficial interest in land, and yet no one can be said in a legal sense-in such sense as a court of common law must understand the statute to be seised, or possessed, in trust for him. At all events there must be cases in which no process of a common law court can get at that estate, of which some one is seised, or possessed, in trust for the debtor. In such cases as these, presenting impediments, which the common law courts cannot remove, bills for equitable execution must continue to be filed.

Remarks on the Case of Lee v. Ravenscroft, 6 Simons, 474. Construction of the 10th Order of December, 1833, and of the 3d Order of the 9th May, 1839. THE Vice-Chancellor in this case of Lee v. Ravenscroft said that he had conferred with the Lord Chancellor, and that his Lordship was of opinion that the 10th order of December, 1833, applied only to injunctions to be obtained on original bills; and that a plaintiff, before he could obtain an injunction upon an amended bill, must wait till the five weeks [given by such order in a town cause to answer an amended bill] had expired: and then if the defendant was in default, the plaintiff might move for the injunction according to the old practice.

In another case, which came before his Honor a few weeks afterwards, he expressed himself to the same effect. See ante, page 445.

The recent orders of the 9th May, 1839, render it important to consider whether this construction of the 10th order of December, 1833, be correct.

The 3d of the orders of the 9th May, 1839, is as follows:"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, 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."

This order plainly applies to amendments after answer. Were it intended that it should apply to amendments before answer, the words "and shall either not be obtained, or having been obtained, shall have been dissolved upon the merits stated in the answer," would be altogether superfluous, and ought to have been omitted. Besides, should such order be held applicable to amendments before answer, then upon every trifling amendment, as the alteration of a name or a date, an affidavit would be requisite. This would be a most useless multiplication of oaths, that never could be contemplated, and which most must desire should be avoided.

Now it is generally understood that the 3d order of 9th May, 1839, had for its object to supply a defect in the 10th order of December, 1833. This last order abolished orders for time to answer; and where the bill prayed the common injunction, the plaintiff was to be entitled to it upon motion of course, if the defendant did not answer within eight days after appearance. No provision was however made for the case of the plaintiff amending his bill-either where the answer has been filed before the injunction could be obtained-or where having been obtained, it has been dissolved upon the merits, or for want of the plaintiff's showing cause-or where an application for it upon merits disclosed by the answer has failed.

In such a case by the old practice, the plaintiff, upon the defendant taking out an order for time to answer the amended bill, was entitled to the common injunction. If it had not been previously obtained, or applied for, the plaintiff was entitled to it upon a motion of course. But if it had been obtained, and dissolved, or if it had been unsuccessfully applied for, as aforesaid, the plaintiff was entitled to it upon notice of motion supported by an affidavit of merits.

Such was the defect, which, it is believed, it was the object of the 3d order of the 9th May, 1839, to supply. But if Lee v. Ravenscroft be right, and that order applies only to amendments after answer (and it indisputably has not a more extensive operation), then it will follow that in the case of amendments before answer, however small,-be they merely of a letter or a figure the plaintiff must wait the five weeks in a town cause, or seven weeks, the time given for answering in a country cause, before he can have the common injunction.

This surely is not to be deemed the right construction of the order of the 10th December, 1833, unless there is no escape from it. The words of the order are these:-"That in every cause where an original, or supplemental bill, or bill of revivor, shall be filed, a defendant shall, after appearance and without order, be allowed eight weeks in a town cause, and ten weeks in a country cause, to plead, answer, or demur, not demurring alone, to any such original, or supplemental bill, or any such bill of revivor to which an answer is required; and five weeks in a town cause, and seven weeks in a country cause, to plead, answer, or demur, not demurring alone, to any amended bill, to which the plaintiff shall require an answer; but that twelve days only shall be allowed a defendant to demur alone to any such original, amended, or supplemental bill, or bill of revivor. And in every cause for an injunction to stay proceedings at law, if the defendant do not plead, answer, or demur to the plaintiff's bill within eight days after appearance, the plaintiff shall be entitled, as of course, upon motion to such injunction."

The expression "plaintiff's bill" is general: any bill in a "cause for an injunction to stay proceedings at law." There is nothing to restrain its meaning to an original bill in the sentence in which it occurs; and there is as little in the preceding sentence. For in the preceding sentence mention is not made of an original bill alone, but of an amended bill also, together with a supplemental bill and a bill of revivor. The natural construction is, any bill praying the common injunction; and were it not the natural construction, still it ought to be adopted, as that construction without which the 3d order of the 9th May, 1839, will have left unaccomplished a material part of what its framers. must have had in view, and a further order will be necessary before this head of practice will be complete.

Supposed Doctrine of Lord Hardwicke and Lord Eldon, that surviving Trustees may be proceeded against without the Representatives of others implicated in the same Breach of Trust.-See before, page 78. THE notion, which prevails among draughtsmen, of Lord Hardwicke and Lord Eldon having held, that where a breach of trust has been committed by several persons, the cestui que trust may select some, or one, of such persons-disregarding the others, if they be living, or the representatives of them, if they be dead, seems to have originated in the cases of Ex parte Angel, 2 Atkyns, 162, and Walker v. Symonds, 3 Swanston, 1, 75.