SIFFKEN V. DAVIS. 1853. Dec. 14th. closure Suit 15 & 16 Vict. Costs. THIS was a bill for foreclosure, and upon motion for decree a Parties-Foresale was now asked under 15 & 16 Vict. c. 86, s. 48. The mortgage was for a term of 500 years. The mortgagor had since granted the equity of redemption by deed to the Defendant Trustee's Davis, upon trust for the mortgagor for life, and after his decease, upon trust for his wife for life, and after the decease of the survivor of them, upon trust for all the children of the mortgagor who might be then living, and the children of such of them as might be dead, in equal proportions, such children to take the share of their deceased parent or parents. The mortgagor died in 1839, leaving his wife surviving, and having had five children, of whom two died leaving children, who were all infants at the time of the filing of the bill, but one of whom had since attained twenty-one and was residing in Australia. The other three children of the mortgagor attained twenty-one, and were all living at the time of filing the bill; but one had since died, leaving one child an infant. The bill was filed by the mortgagees against the trustee of the said settlement, and the widow and the three adult children of the mortgagor, as the only Defendants. The question was, whether the infant grandchildren of the mortgagor and the representative of the deceased Defendant were necessary parties. Mr. G. S. Law, for the Plaintiffs, referred to 15 & 16 Vict. c. 86, s. 42, rule 9, and to Goldsmid v. Stonehewer (9 Hare, App. P. xxxviii.) Mr. Shebbeare, for the Defendants, suggested that this case was different from Goldsmid v. Stonehewer (ubi supra), because here, a sale was asked; and also, because the trustee had here no duty to redeem, and no fund in his hands with which to redeem the mortgage. An equity of upon trust for certain parties, some of whom were infants. The mortgagee filed a bill for against the trustees of the foreclosure settlement and the adult cestuis que trust only, as Defendants. One of the lat ter died after the filing of the bill. The Court, upon a motion for a decree for sale, made the decree in the absence of the infant cestuis que trust, and of the representative of the de ant, upon an ceased Defend affidavit by the trustee of the settlement, that it would be for the infants; and ordered the proceeds to be paid into Court. the benefit of The costs of the trustee, as he would be a to reconvey, were ordered THE VICE-CHANCELLOR SIR W. PAGE WOOD thought that, necessary party according to the rule laid down by Sir George Turner in Goldsmid v. Stonehewer, the representatives of the deceased Defendant ought to be before the Court, and, as a sale was asked, the VOL. I. [e] E. K. W. to be paid out of the mortgage debt. 1853. SIFFKEN v. DAVIS. Court must be satisfied that it would be for the benefit of the infants, Mr. Shebbeare said, that the trustee would make an affidavit to that effect. The VICE-CHANCELLOR said, that then he thought he could direct a sale, and could also get rid of the difficulty as to parties by directing the money to be brought into Court, which he had power to do. The order must be to tax the costs, and to take the common accounts, and direct a sale and payment of the proceeds into Court. This order not to be drawn up until the trustee had made an affidavit that a sale would be for the infant's benefit. Mr. Shebbeare asked for the costs of the trustee out of the mortgage money, because he would be a necessary party to the re-conveyance. The VICE-CHANCELLOR ordered the trustee's costs to be so paid. 1854. Feb. 10th. of Plaintiff Plea. A misdescription of the Plaintiff in the introduction to the bill may be SMITH V. SMITH. Misdescription THIS was a plea to the bill in this suit in the following words: "That in the bill the Plaintiff is described as of Blank House, in the county of" D. "Whereas such description is false, the facts being, that the Blank House aforesaid is the family residence of Defendant" (naming him), "and that the Plaintiff resided there during the life of her late father" (naming him), “but shortly after his death she quitted her home in company with a person with whom she had formed a disgraceful connexion, and she has never since returned to Blank House aforesaid, but keeps her place of residence a secret from the Defendants and the rest of her family; all which matters and things the Defendants aver issue distinctly; to be true; and they demand the judgment of the Court whether and a plea, that, in the bill, the they ought to be compelled to make any answer to the said bill taken advantage of by plea. But such plea must be very precise in its averments, so as to raise the Plaintiff is de scribed as of B., whereas such description is false, the facts being that she used to reside there during the life of her father, "but shortly after his death she quitted her home," and had never since returned, was held insufficient, because, for anything that appeared, the Plaintiff might not have quitted B. till after the filing of the bill. until a sufficient and true description of the Plaintiff's place of residence has been supplied." The misdescription complained of was in that sentence of the bill which commenced with the words "Humbly complaining," &c., which is sometimes called the introduction to the bill. Mr. W. M. James, Q. C., and Mr. Hobhouse, for the plea.The address of the Plaintiff is important for the reasons stated in Mitford on Pleading, p. 42:-" In the second place are contained the names of the parties complainants and their descriptions, in which their abode is particularly required to be set forth, that the Court and the parties Defendants to the bill may know where to resort to compel obedience to any order or process of the Court, and particularly for payment of any costs which may be awarded against the Plaintiffs, or to punish any improper conduct in the course of the suit." In Sandys v. Long (2 My. & K. 487), there was a motion to discharge an order of the ViceChancellor, that the Plaintiff should give security for costs, he having described himself as of Cheltenham, upon proof by affidavit that he was not residing there, and had not been for some months previous to the filing of the bill; but the motion was refused. In Rowley v. Eccles (1 S. & S. 511), the Defendant demurred, on the ground that the Plaintiff had not stated his place of abode; and the demurrer being overruled, he took the objection by plea that the description was false. The plea was taken off the file, because it was a second dilatory filed without leave of the Court; but it was not suggested that the objection could not be made by plea. At law, the writ used to contain the Plaintiff's address, and the Defendant could crave oyer of the writ, so that it became part of the pleadings; and any want of description or misdescription could be pleaded in abatement. Since the alteration of the practice, the course has been to apply to stay proceedings until a proper description is given. The reasons for requiring an exact description are thus given in Story's Pleadings in Equity, p. 29, pl. 26:-"The object in each case of giving the names and descriptions of the parties, is to enable the Court and the other parties in interest to know where and to whom they may resort to compel obedience to any order or process of the Court, and especially for the payment of costs, as well as to furnish distinct 1854. SMITH บ. SMITH. 1854. SMITH v. SMITH. means of decision in all future controversies in regard to the subject matter and the identity of the parties." In Kirkley v. Burton (5 Madd. 378), a demurrer was allowed to an amended bill, because it was not signed by counsel; the Vice-Chancellor comparing it to the case of a demurrer for want of an affidavit to accompany a bill of interpleader, or a bill to transfer the jurisdiction from law to equity upon the ground of a lost instrument. It is stated, in Com. Dig. "Abatement," E. 22, "If a Plaintiff sues, and to his name of baptism and surname adds the addition of any place or vill, and that be mistaken, it may be pleaded in abatement." "So it may be pleaded, that one suing as gentleman is no gentleman." Mr. Shapter for the bill.-The description is not part of the pleading, and there is no averment that the Plaintiff is of Blank House. In Albretcht v. Sussman (2 V. & B. 323), the description of the Plaintiffs was that they were resident in France, in the character of consuls of neutral states; and the question was, was that sufficient to sustain a plea that they were alien enemies: and the Lord Chancellor Eldon assented to the argument that there was no averment that the Plaintiffs were consuls. In Macnamara v. Sweetman (1 Hog. 29), a description of the Plaintiff as administratrix was held not to be an averment that she was actually administratrix; and a demurrer for want of such averment was allowed. It is not said whether this plea is negative or affirmative. it is attempted to make it both it is bad in point of form. If The issue tendered by a plea must be "a single, certain, and material point, issuing out of the allegations or pleas of the Plaintiff and Defendant, consisting regularly upon an affirmative and negative:" (Beames' Pleas in Equity, 21). [VICE-CHANCELLOR.— The averment in the plea is certainly not very distinct as to the time when the Plaintiff left her residence.] It is not sufficient to entitle the Defendant to security for costs. According to the plea the Plaintiff has no other address at this moment. It is true, that, where a Plaintiff wilfully misrepresents his place of residence, he must give security for costs: Simpson v. Burton (1 Beav. 556). But this is not so when he gives the best address he can, although it may be he was not actually resident there when the bill was filed, if there be no intention of deceiving: Hurst v. Padwick (12 Jur. 21). The only necessary de It is a matter of 1854. SMITH scription is such as will identify the Plaintiff. Then the proper remedy, if this be a defect, would be by a motion to take the bill off the file. VICE-CHANCELLOR.-I have very little doubt that a plea might be put in in this case, but I am not satisfied with the form of this plea. A plea of this kind must be extremely precise in the issue which it tenders. This plea is not very precise as to the falseness of the plaintiff's description; and the allegation, that shortly after the death of her father she left her home, is too vague; for anything that appears, that might not be till after the filing of the bill. Mr. W. M. James, Q. C., in reply.-The plea is, that the description is false; the rest is merely a statement of the facts upon which that allegation is founded. The cases mentioned as analogous differ from this. The Attorney-General gives no address, because he never gives security for costs. VICE-CHANCELLOR SIR W. PAGE WOOD: According to the books of practice, a misdescription of this kind may be shewn by plea, the office of a plea being to shew any informality in a substantial part of the bill; and it is a matter of substance, as agreed by Lord Redesdale, that there should be in the bill a statement of the place of abode of the Plaintiff, so that the Court may know where to resort to for the purpose of compelling obedience to any of its orders. There may be exceptions to this rule, like the case of the Princess which has been mentioned, or the Attorney-General; but it is nevertheless the rule, and the parties are entitled to have such a description; and if it be omitted, it appears to me that the case would be analogous to (a) See Report of the Chancery Commission, 1824, p. 205, where this fact is stated in the VOL. I. evidence of the late Vice-Chan- [f] E. K. W. v. SMITH. |