1820. COUPLAND and others v: BRADOCK. The VICE-CHANCELLOR : A Party is certainly entitled to a full Answer before he can be compelled to elect; but if no Exceptions are taken to the Answer within eight days after it is put in, it is to be assumed, that the Plaintiff is satisfied with the Answer; the Defendant may then move, that the Plaintiff may be put to his election, and the Plaintiff cannot afterwards suspend the Order of election, by moving as of course, within the eight days, for leave to file Exceptions nunc pro tunc. In such case, he should make a special application to suspend the Order for an election. The Order for leave to file Exceptions nunc pro tunc, must be discharged, with Costs; but let the Order to elect be suspended, until the first day of Motions in Term, with liberty for the Plaintiff to make such application on that day, for leave to file Exceptions, as he may be advised. Same day. Production of a Deed, which destroys the Defendant's Title, refused. SAMPSON v. SWETTENHAM. MR. PARKER moved for the production of a Deed referred to in the Defendant's Answer, upon which he founded his Title. Mr. Bell, contra. The VICE-CHANCELLOR: The Plaintiff is entitled to the production of a Deed which sustains his Title, but he has no right to the production of a Deed which is not connected with his Title, and which gives Title to the Defendant. Motion refused. HAWKES v. BARRETT and another: 1820. 24th January. There being two Executors Ac A MOTION was made, that the Proceedings in the second Cause might be stayed, or that Hawkes, the Plaintiff in the first Cause, might be let in to prosecute the second Cause on behalf of herself and the other counts, the prosecution of the Creditors and Legatees of E. B. deceased. On the first Suit was, 15th November 1819, Mrs. Hawkes filed her Bill against under the cirBarrett and Cannon, as Executors of Hawkes, deceased, cumstances, for the usual Accounts: she was both Creditor and Legatee. On the 30th November, the Defendant peared to that Suit, and took an Order for time; and ap stayed, and the prosecution of the Decree in the second Suit on the 15th December, Williams filed her Bill, as a Crewas given to the ditor, against the same Defendants. To this Bill, an Plaintiff in the amicable one, the Defendants immediately put in their first Suit. Answer. On the 22d December the Cause was set down, and a Decree taken. One of the Executors, Barrett, was also Residuary Legatee, and the Decree directed an Account of the Legacies, and to ascertain the residue, and was so taken at his instance. The other Executor, Cannon, was the Solicitor both for the Plaintiff and Defendants in the second Cause. Mr. Lovat, on the Motion, urged the impropriety of the same Solicitor acting both for Plaintiff and Defendant, more especially as such Solicitor was one of the Executors, and therefore an accounting Party. He submitted, the second Cause ought not to be allowed to proceed; or that if the second Cause proceeded, the Plaintiff in the first, ought to have the management of it. 1820. HAWKES 0. BARRETT and another. Mr. Rose, contra, contended, that the Court looked favourably to the Executor in these kind of Suits, in order to give him a protective Decree, as early as possible; that if there were any impropriety, the Court would fasten upon that, but not upon the mere circumstance of the same person being Solicitor in both Causes. The Vice-Chancellor made an Order to stay the Proceedings in the first Cause, and to give to the Plaintiff in that Cause, the prosecution of the Decree in the second; and directed the Costs in the first Cause to be paid out of the Estate. 1820. 21st January. Demurrer lies to a Bill of Discovery merely, unless, in aid of proceeding,either pending or intended, alleged in the Bill. CARDALE v. WATKINS. A BILL was filed merely for a Discovery, but stated no purpose for which the Discovery was sought. A Demurrer was put in, and allowed; the Vice-Chancellor observing, that a Court of Equity does not compel Discovery for the mere gratification of curiosity, but in aid of some other Proceeding either pending or intended, and that there must be Allegations to that effect. Mr. Koe, for the Demurrer. Mr. Horne, contra. HOW v. BEST and HASE. In this Case, an Officer of the Bank of England was made a Party for the purpose of discovery as to the times when Stock in question in the Cause had been transferred. He demurred to the Bill, and the Vice-Chancellor allowed the Demurrer, stating, that the Officer was in this case merely a Witness. 26th January. Demurrer by an Officer of the Bank allowed, upon the ground, that as to the Discovery sought from him he was merely aWitness. 1820. ATKINS v. PALMER. IN this case a Bill had been filed for a Commission to examine Witnesses abroad, in aid of a Trial at Law, and a Commission had been sent out accordingly, but the Witness had returned to England before the Commission had reached its destination, and the present application was to examine the Witness de bene esse, in aid of the Trial at Law, upon the ground, that he was about to leave the Country again before the Trial could be had. 4th February. After a Commission sent abroad for the Examination of Witnesses, a Witness, before the Commission had reached its destination, returned to Eng The Vice-Chancellor observed, that this was a dif- land, and a ferent relief, and that the Bill must be amended. Motion refused. Motion was made de bene esse, held, that the Bill must be amended. 1820. 4th February. Plaintiff in re Person, at the The Solicitor in such Defence and the Items were struck out; and held, that RIGBY v. EDWARDS. Items in a So- IN this Case, an Order had been obtained by the licitor's Bill were Plaintiff, for the Taxation of his Solicitor's Bill, which, charged to the amongst other things, contained a set of Items which spect of the De- were charged to the Plaintiff, upon the ground, that fence of a third though they respected the Defence of a third Person in an Action to which the Plaintiff was no Party, yet the Solicitor was employed in such Defence by the Plaintiff, and not by the Defendant himself. The Master being of opinion, that the Solicitor had not established the fact that he was employed in such Defence by the Plaintiff, struck out those Items; and the question was, Whether the amount of the Items so struck out, was to be computed among the Deductions, for the purpose of determining upon whom the Costs of Taxation were to fall?-For the Solicitor, was cited, the Case of White v. Milner (a), where it was held, that a Sum deducted in respect of the Attorney not proving the undertaking of the Plaintiff to pay a Bill of Costs due to him from a third Person, was not to be computed as a Deduction for the purpose of the Costs of Taxation.-The Case stood over, in order that the Practice might be inquired into, and on this day, the Vice-Chancellor stated, that he had received a Certificate from the most experienced Clerks in Court, and that they were of opinion, that Sums deducted in respect of business done for a third Person at the alleged retainer of the Client, but the Authority not proved, were always computed as Deductions in the question of Costs such Items were to be computed among the De ductions, for the purpose of determining upon whom the Costs of the Taxation were to fall. (a) 2 Hen. Bl. 357.* |