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V.C. M.] PANAMA, &C., TELEGRAPH Co. v. INDIARUBBER, &C., TELEGRAPH WORKS Co.

engagement to his employer that the expenses should not exceed a certain amount. Those are cases in which the instrument was avoided when the contract was entered into. But Pawley v. Turnbull is a case where the contract was avoided by reason of what took place subsequently to the time when it was entered into. Now, that is a remarkable decision. I was counsel for the plaintiff, Mr. Pawley, before Stuart, V.C. The case was appealed, and I distinctly remember that Lord Westbury, before whom it was argued, entirely confirmed the decision of Stuart, V.C. It was a case in which a contract was entered into by Mr. Pawley, the builder, to erect certain houses for Mr. Turnbull. Mr. Hay was to be the architect, and Mr. Hay's certificates were to be binding upon Mr. Pawley, as is usual in such cases. There was not any undue influence or improper conduct at the time when the contract was entered into, but it was proved to the satisfaction of the court that in the course of the work Mr. Hay had been guilty of unfair and improper conduct-fraudulent, in fact -that he had acted in a fraudulent manner towards the builder. Here is a case entirely contrary to the rule laid down by Wood, V.C.; here is a case in which there was no fraud at the time when the contract was entered into, but where there was fraud in the course of its execution, and that fraudulent or improper conduct was fatal to it, although the houses, having been erected, of course they must be paid for, and they were paid for; but they were not to be paid for according to Mr. Hay's certificate, but according to a just price, to be ascertained by measure and value, independent of his certificate altogether. In those cases the work done had, of course, to be paid for, but the certificates of the architects were not conclusive as to the amount, as they would have been if there had been no unfair contract. So in this case, if the cable or any part of it had been delivered the plaintiffs must, of course, have paid for it, but the certificate of Sir Charles Bright would not have been received as to the amount. I have carefully considered the evidence of Sir Samuel Canning, Sir William Thompson, Mr. Jenkin, and Mr. Sabin, as to the omission of a specification as to laying the cable in the contract, and I am satisfied from their evidence that such a specification ought to have formed part of the contract. That is, that the contract ought to have specified how the cable was to be delivered, how it was to be dealt with on board ship, how it was to be laid, and so forth, in such manner as Sir Samuel Canning, when he subsequently drew the contract which was to be carried into effect, provided. But I have been unable to come to the conclusion that its omission by Sir Charles Bright arose from the fraudulent motives which were attributed to him by the plaintiffs. He may not so early as the 10th of Jan. 1870 have made up his mind that he would be the contractor, but to say that he acted from the motives which the plaintiffs have imputed to him only because he knew he was himself to lay the cable, omitting to make any provision as to how it was to be laid, in order that he might be unfettered, and thereby have an opportunity of defrauding his employers, the plaintiff company, is to attribute to him such unmitigated baseness that I could not come to such a conclusion against a gentleman who has occupied a respectable position in society; and although I think he has committed a grave error upon the

[V.C. M.

present occasion in entering into a sub-contract of this nature, yet I am far from desiring it to be understood that I attribute to him, or think he was guilty of, any fraudulent conduct. I also think he may have fairly thought it was not expedient to go into the details of the subject, as appears to have been the opinion of many other eminent men, whose evidence was referred to by Mr. Giffard in the cross-examination of the witnesses in the Parliamentary report, some passages of which were read. I must add that the circumstance of Mr. Bannatyne having been a director of both companies will not affect the question between these two companies. In the case of The Marseilles Extension Company, one company, the Marseilles Railway Company, borrowed money of the other company, the Credit Foncier. The latter company was not affected by notice of the illegal purpose for which the money was borrowed, which was to rig the market, although the director who managed the transaction was a director of both companies, and both companies had the same solicitor, who was engaged in the transaction. The circumstance, therefore, of Mr. Bannatyne being a director of both companies does not affect the question. I may well assume that the charges of fraudulent intention which the plaintiffs attribute to the defendants did not exist, and yet, upon general principles, I should come to the conclusion that such transactions cannot stand. I must apply to them the rules which were applied by Lord Eldon in dealings between solicitors and clients, and trustees and cestui que trusts in the case of Ex parte James (8 Ves. 337), and I refer to this passage because it is a remarkable passage, which cannot be too strongly impressed upon all persons having dealings with each other-it cannot be too strongly impressed upon the mind of every practitioner in these courts, and every member of the legal profession. The question in the case was whether a purchase by a trustee, or assignee, or a solicitor of his client, could stand where the evidence showed that the transaction was fair and the utmost price was given. Lord Eldon says (p. 345): "This doctrine as to purchases by trustees, assignees, and persons having a confidential character, stands much more upon general principle than upon the circumstances of any individual case. It rests upon this, that the purchase is not permitted in any case, however honest the circumstances; the general interests of justice requiring it to be destroyed in every instance; as no court is equal to the examination and ascertainment of the truth in much the greater number of cases. The principle has been carried so high, that where a trustee in a renewable lease endeavoured fairly and honestly to treat for a renewal on account of the cestui que trust, and, the lessor positively refusing to grant a renewal for his benefit, the trustee, as he very honestly might under those circumstances, took the lease for himself, it was held that even in such a case it is so difficult to be sure, there was not management, a difficulty, that might exist in a much greater degree in many other cases, having the same aspect, that the lease taken by the trustee from a person, who would not renew for the benefit of the cestui que trust, should be considered taken for his benefit; and should be destroyed rather than that the trustee should hold it himself under those circumstances." Now, I apply that doctrine here, and I

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say with Lord Eldor, whether it be a contract or whether it be a purchase, whether it be, as in the present case, a contract which may bias the judgment, which may influence the conduct, it rests upon this general principle, that "the purchase is not permitted in any case" (he says "the purchase" and I say "the contract"), "however honest the circumstances, the general interests of justice requiring it to be destroyed in every instance, as no court is equal to the examination and ascertainment of the truth in much the greater number of cases." Applying those general principles to the present case, I come to the conclusion that the plaintiffs would have been entitled to treat this contract as void, and to recover the money paid under it if they had discovered the sub-contract with Sir Charles Bright immediately after it had been entered into; and as they have done no act to confirm it since they became aware of it, I am of opinion that they had the same right when they discovered this fact in Dec. 1871. There must therefore be a declaration in conformity with the prayer of the bill, and a decree for the return of the 40,0001. by the defendant company, and of the 6001. by Sir Charles Bright, with interest upon those sums respectively from the 4th Feb. 1870, when they were paid, and the plaintiffs must have the costs of the suit.

Solicitor for plaintiffs, J. H. Mackenzie. Solicitors for defendants, Murray and Hutchins ; Hargrove, Fowler, and Blunt.

V. C. HALL'S. COURT.

Reported by RICHARD MARRACK, S. H. S. LOFTHOUSE, and HENRY C. DHANE, Esq., Barristers-at-Law.

Friday, March 19.

Ex parte RECTor of Bradfield ST. CLAIRE. Glebe land-Purchase money for glebe land applied in building a rectory-Railway companyLands Clauses Act 1845.

The purchase money for glebe lands, taken by a railway company, may, with the consent of the bishop, be paid by the court to the rector for the building of a rectory house.

IN 1864 the Great Eastern Railway Company, under their statutory powers, took for the purposes of their undertaking part of the glebe land belonging to the rectory of the parish of Bradfield St. Clare, in the county of Suffolk, the purchase money being agreed upon between the company and the then rector, at the sum of 3251. On the 16th Dec. 1864 the company paid this sum into court; and subsequently it was ordered that the sum should be invested and placed to the account of the Rector of Bradfield St. Clare, and that the interest should be paid to the rector for the time being.

In Sept. 1873 the present rector, the Rev. Alexander Swiney was inducted into the rectory. He then found there was no parsonage house belonging to the rectory. Thereupon he entered into a contract for the building of a rectory house at the cost of 16971. This was now in the course of erection, but was not yet completed. Towards meeting the costs thereof there were, First, 1117. 148. 6d. recovered from the representatives of the previous rector in respect of dilapidations. Secondly, about 2001. arising from the sale of some cottages on the glebe land, ard, Thirdly, about

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9341. 68., advanced by the governors of Queen Anne's Bounty on mortgage of the living; or in all 12461. Os. 6d., leaving a deficiency of 5601. 178. to be provided by the rector.

The rector now petitioned that the proceeds of the sum in court might be paid to him to be applied in part payment for the building of the rectory house. The petition stated that the Bishop of Ely, in whose diocese the living is, and also the patrons of the living, had approved of the building of the house, and of the application of the money towards meeting the expenditure incurred therein. G. Borrett, for the petitioner, referred to

Ex parte Rector of Hartington, Weekly Notes (1875),
40;

Williams v. Aylesbury and Buckingham Railway,
28 L. T. Rǝp. N. S. 12; L. Rep. 9 Ch. 684;
Ex parte Rector of Claypole, L. Rep. 16 Eq. 574; 29
L. T. Rep. N. S. 51.

Jason Smith, for the company, suggested that it would be right to pay the money to a nominee of the bishop. He also referred to

Re Incumbent of Whitfield, 1 J. & H. 610.

The VICE-CHANCELLOR said no general rule could be laid down in these cases. Under the circumstances of the present case he should order the money to be paid to the rector upon the production of an approval in writing, signed by the bishop of the diocese, of payment to the rector, the rector undertaking to apply the money in pay. ment for building the rectory house.

Co.

Solicitors for the petitioner, White, Borrett and

Solicitor for the railway company, Shaw.

March 17, 18, 19 and 20.

LADY STANLEY OF ALDERLEY v. EARL OF SHREWSBURY.

Right to light and air-Mandatory injunction— Damages.

The Court of Chancery will not, in general, grant a mandatory injunction to pull down buildings alleged to obstruct ancient lights, if the defendant has completed such buildings before the bill is filed. But if the plaintiff's premises appear to have been rendered substantially less enjoyable or comfortable, the court will grant an inquiry as to damages, though such relief was not asked for by the bill.

THE plaintiff in this case is tenant, during widowhood, of a freehold house, No. 40, Dover-street, Piccadilly. The defendant is the owner in fee of the adjoining house, No. 39, Dover-street. Each of these houses has a small court, or garden, at the back, the defendant's garden having formerly at the rear of it a low building used as a stable.

In Jan. 1874 the defendant instructed Mr. Pollen, an architect, to prepare a model and plans of various new buildings and alterations, which the defendant proposed to make on his premises. Notice of his intention to make these alterations was given in the same month to the plaintiff. On the 4th Feb. 1874 an interview took place at the defendant's house, between the plaintiff and her house agent, and the Earl and Countess of Shrewsbury and Mr. Pollen. The evidence as to what took place at this interview was very conflicting. According to the evidence of the plaintiff, no model of the proposed new buildings was produced, but merely some plans which did not convey any accurate idea of what the defendant proposed to

V.C. H.]

LADY STANLEY OF ALDERLEY v. EARL OF SHREWSBURY.

do. The plaintiff moreover asserted that she, at this interview, distinctly objected to the proposed buildings, and informed the defendant of her intention to prevent their erection, as far as possible. The defendant's evidence, on the other hand, was to the effect that a model was produced, that the nature of the new buildings was fully explained to the plaintiff, and that she offered no objection to their erection, beyond asking that they should not be carried so near to her garden wall as to destroy a certain tree in the defendant's garden, a request to which the defendant at once acceded.

The plaintiff consulted her solicitors, early in Feb. 1874, with reference to the defendants' proposed alterations, and each side appointed an architect to confer on the subject; but the correspondence and interviews between these gentlemen appeared to have had no definite result.

In the beginning of Sept. 1874, the defendant commenced his new buildings. These were erected, in part, on the site of the former stable, and consisted, mainly, of a large banqueting hall with bed and dressing rooms over it, the whole being connected with the original mansion by a corridor. The plaintiff complained that these buildings materially affected the access of light and air to the rooms at the back of her house, particularly to the dining room, morning room, library, and kitchen, all the windows of these rooms being ancient lights. And in Nov. 1874, the plaintiff, after having given formal notice to the defendant, requiring him to discontinue his buildings, and restore them to their original state, filed a bill praying for a mandatory injunction to restrain the defendant from allowing to remain in his garden any building which might interfere with the access of light and air to the plaintiff's premises. A motion for injunction was accordingly made before the Vice-Chancellor on the 25th Nov. 1874, but ordered to stand to the hearing, the costs to be costs in the cause. The case now came on as a motion for decree.

There was the usual conflicting evidence, professional and otherwise, upon the question whether the defendant's buildings had, in fact, inflicted any injury upon the plaintiff's premises. The plaintiff's case was that the rooms previously mentioned had hitherto been light, airy, and cheerful, but by reason of the defendant's new building were rendered dark and dismal. Whilst according to the defendant, the damage done was scarcely appreciable, and as to the kitchen, with respect to which great complaint was made, could be easily remedied by the erection of a skylight. The defendant also insisted by his answer that the plaintiff had-if not expressly, at least impliedly-acquiesced in the new buildings, and thus debarred herself from any right to complain of them; an allegation which the plaintiff strenuously denied.

Lindley, Q.C. and B. B. Rogers for the plaintiff. -The plaintiff has shown that her property is substantially injured by the defendant's proceedings, and, consequently, that she is entitled to relief in this court. As to the form of relief, we submit that she is entitled to a mandatory injunction. The rule in these cases, as laid down by the Master of the Rolls in Aynsley v. Glover (31 L. T. Rep. N. S. 219; L. Rep. 18 Eq. 544) is, that wherever an action could be maintained at law, and considerable damages could be recovered at law, there the in

[V.C. H.

junction ought, generally, to follow in equity. And in the same case the learned judge, speaking of the power which the court now has under Lord Cairns' Act to substitute damages for an injunc tion, says: "Now the first remark upon that is this; it only arises when the Court of Chancery has jurisdiction to grant an injunction. It can only apply to those cases in which the court could have granted an injunction, at all events at the time of the filing of the bill; and if the court could have granted an injunction it ought to have granted the injunction.' And then he goes on to point out that the only cases in which the court is justified in substituting damages for an injunction are those where the plaintiff endeavours to use his legal right to an injunction as a means of obtaining a large sum of money from the defendant, or where it is clear that the plaintiff has sustained but slight damage. It is not pretended that this case is one of the first of the classes mentioned by the Master of the Rolls, and we have proved that it is not one of the second. It is well settled, also, that the court can grant a mandatory injunction, although the injury sought to be restrained has been completed before the filing of the bill:

Durell v. Pritchard, 13 L. T. Rep. N. S. 545; L. Rep.
1 Ch. 244;

Martyr v. Lawrence, 10 L. T. Rep. N. S. 677; 2 De
G. J. & S. 261;

Phillips v. Treeby, 6 L. T. Rep. N. S. 213 and 796;
3 Giff. 632;

Great Northern, &c., Junction Railway Company ▼.
Clarence Railway Company, 4 L. T. Rep. 229; 1
Coll. 507.

The other side will, no doubt, rely on this point,
upon such cases as Curriers' Company v. Corbett
(12 L. T. Rep. N. S. 169; 2 Dr. & S. 355), and
Isenberg v. East India House Estate Company (3
De G. J. & S. 263), in which damages were given
instead of an injunction, but those were peculiar
cases. In the first, the plaintiffs were not occupants
of the premises in question, but reversioners com-
plaining that the value of their reversion was
deteriorated. In the second, the court considered
it very doubtful whether any damage had been
sustained; and, moreover, the buildings which
the defendants had erected were of much greater
value than the plaintiffs' premises. Here, the
plaintiff is in actual occupation of her house, which
is a large family town mansion, whereas the defen-
dants' building is a mere excrescence on a house
already sufficiently commodious for every reasonable
purpose. As to acquiescence, or laches, our evidence
shows conclusively that there was none on the plain-
tiff's part. Neither she, nor her solicitors, nor her
surveyor, gave any consent to the erection of the
defendant's buildings. On the contrary, they one
and all protested against it. The bill would have
been filed before, had not the defendant put us off
our guard by undertaking that his new buildings
should not come forward beyond the line of the
old stables, and then commencing his operations
after the close of the London season. They cited
also-

Kelk v. Pearson, 24 L. T. Rep. N. S. 890; L. Rep. 6
Ch. 809;

City of London Brewery Company v. Tennant, 26 L.
T. Rep. 755; L. Rep. 9 Ch. 212;

Martin v. Headon, 11 L. T. Rep. N. S. 590; L. Rep. 2
Eq. 425.

Dickinson, Q.C. and Cookson for the defendant. -This bill was not filed until the 20th Nov. 1874, when the defendant's building was complete, except the roofing in, although the plaintiff knew, as

V.C. H.]

HARDINGE v. SOUTHBOROUGH LOCAL BOARD.

early as the previous Feb., of the defendant's intention to build. The plaintiff lays stress on no model of the proposed building having been shown to her. We say that it was shown, but assuming that it was not, how is it that, having, as she says, gone with her surveyor to see the model, no complaint was ever made of its non-production? If the model was not produced, surely some demand ought to have been made for its production, and, in the absence of this, the plaintiff has, by her laches, concluded herself from asking for a mandatory injunction, even if she can prove that she has sustained any damage. But of this there is no sufficient proof. Our evidence shows that the height of the new buildings is not greater than the distance between them and the rooms which are said to be darkened, and consequently that the plaintiff would not, in any case, be entitled to an injunction, even were the buildings directly opposite to her windows: (Beadel v. Perry 15 L. T. Rep. N. S. 345; L. Rep. 3 Eq. 465.) And here the light obstructed is a side light which, as pointed out by Lord Selborne in City of London Brewery Company v. Tennant (29 L. T. Rep. N. S. 755; L. Rep. 9 Ch. 212), is of much less consequence. Moreover, Durell v. Pritchard (13 L. T. Rep. N. S. 677; L. Rep. 1 Ch. 244), shows that the mere fact of some light being obstructed does not give any claim to relief in this court, unless it can be shown that the obstruction is material. [The VICE-CHANCELLOR.-I do not intend to grant a mandatory injunction.] Then, the plaintiff's case wholly fails, for the very passages from Aynsley v. Glover (29 L. T. Rep. N. S. 755; L. Rep. 9 Ch. 212), read by Mr. Lindley, shows that the plaintiff, if not entitled to an injunction, is not entitled to relief of any kind.

The VICE-CHANCELOR.-I think that this case is governed by that of Isenberg v. East India House Estate Company (3 De G. J. & S. 263). There, the Lord Chancellor says (p. 272): "The exercise of that power (of granting a mandatory injunction) is one that must be attended with the greatest possible caution. I think, without intending to lay down any rule, that it is confined to cases where the injury done to the plaintiff cannot be estimated and sufficiently compensated by a pecuniary sum. Where it admits of being so estimated, and where the evil sustained by the plaintiff may be abundantly compensated in money, there appears to me to be no necessity to superadd the exercise of that extraordinary power by this Court." That statement, in my opinion, applies here. All the cases which have been cited lead to this, that the question whether the court will exercise its power of granting an injunction must be decided according to the circumstances of each particular case. In Curriers' Company v. Corbett (12 L. T. Rep. N.S. 169; 2 Dr. & S. 355) an injunction was refused because the defendant's buildings had been completed before the bill was filed, and it has been therefore urged that the plaintiff here cannot be entitled to an injunction. But as to that, I find that Lord Selborne in City of London Brewery Company v. Tennant (29 L. T. Rep. 755; L. Rep. 9 Ch. 212) was not prepared to assent to the opinion that in every case in which a building has been completed, even entirely completed before the filing of a bill, this court is powerless. At the same time he admitted that, in such cases, the court is not in the habit of granting a mandatory injunction except under

[V.C. H.

special circumstances. Having regard, therefore, to the law on the point, I cannot, in this case-the buildings having been substantially completed before the bill was filed-grant a mandatory injunction. Ought I, then, to grant an inquiry as to damages? As to that, I must be satisfied with the law as laid down in Kelk v. Pearson (24 L. T. Rep. N. S. 890; L. Rep. 6 Ch. 809), namely: that the plaintiff is entitled to prevent the defendant from building upon his land, so as to obstruct the access of sufficient light and air to her house to such an extent as to render it substantially less comfortable and enjoyable. On the evidence, I have no doubt that the plaintiff's house has been rendered substantially less comfortable, and has not merely suffered that small amount of damage which would prevent this court from interfering, leaving her to her remedy at law. It is true that the plaintiff does not ask for damages in her bill, but this court may, nevertheless, direct an inquiry on that point. If the defendant had made out a case of acquiescence, no doubt, the court would not interfere, but he has not done that; and I am of opinion that, in this case, the plaintiff was not bound, on leaving London at the end of the season, to have a constant watch set on the defendant's building operations. I must confess that I was at first somewhat doubtful on this point, in consequence of the remark of the Master of the Rolls in Aynsley v. Glover (31 L. T. Rep. N. S. 319; L. Rep. 18 Eq. 544), that the court could only give an inquiry as to damages when it could have granted an injunction, and that if the court could have granted an injunction, it ought to have granted the injunction. But I think that this remark must be understood and construed with reference to the peculiar circumstances of each case, and, like many other general observations, does not admit of universal application. It would be a very unfortunate state of things if the court could not grant an inquiry except in cases where it might have granted an injunction-if, in fact, it had in every such case to say to a plaintiff: "If you want damages, you must apply to a court of law." I shall, therefore, direct an inquiry in the same form as in Isenberg v. East India House Estate Company (3 De G. J. & S. 355) and the question of costs will be reserved to await the result of the inquiry.

Solicitors for the plaintiff: Tatham and Co. Solicitors for the defendant: Parkin and Pagden.

Monday, March 22.

HARDINGE v. SOUTHBOROUGH LOCAL BOARD. Practice-Bill filed-Defendants not appearingInjunction.

A bill having been filed against a local board of health alleging that they were committing a nuisance and praying far an injunction to restrain them, all the members of the board resigned. There being no defence to the suit, the injunction was granted in the terms of the first paragraph of the prayer of the bill.

THIS was a suit to restrain the Southborough Local Board of Health from committing an alleged nuisance. The bill was filed by Sir Edmund Stracey Hardinge, Bart., the tenant for life of Bentham Farm, and the first paragraph of the prayer was as follows:

That the defendants, their officers, agents, and servants.

V.C. H.] BRITISH Mutual Investment SocieTY v.

may be restrained by injunction from causing or suffering any foul water sewage matter, or other impurity of any kind to flow, or pass from their aforesaid sewage tanks, or other works, into the said stream which intersects the said Bentham Farm, either above or within the limits of the said farm.

Lindley, Q.C. and W. Barber, for the plaintiff.We are in this position, that no one appears against us. There has been a letter from Messrs. Collyer, Withers, and Bristowe, agents for Messrs. Stone and Simpson, the solicitors of the Southborough Local Board of Health, to our solicitors Messrs. Currie and Williams, saying, that all the members of the board have resigned their posts since the institution of this suit. We contend that this is a mere suggestion; that the members of the board have no right to resign in this way, that they must show that they have power to resign under some Act of Parliament, and that they must show that there is some one authorised to accept their resignation. It would indeed be startling to be told that the duties attached to a post like this could be got rid of at any moment simply by a declaration of resignation.

The VICE-CHANCELLOR.-There is a letter you say from the defendants' solicitors to the plaintiff's solicitors saying that all the defendants have resigned, and no one now appears for the defendants. Under these circumstances you may take a decree in the terms of the first paragraph of the prayer of the bill if you are willing to take all risks. No doubt the board may apply to dismiss this decree.

Lindley, Q.C.-We are quite willing to take the injunction, and run all risks.

Solicitors for the plaintiff, Currie and Williams.

Monday, March 22.

THE BRITISH MUTUAL INVESTMENT SOCIETY v. (a Solicitor).

Negligence of solicitor—Jurisdiction—Demurrer. The plaintiff society by their bill charged negligence on the part of their solicitor, who had advised their accepting a security which turned out insufficient, and prayed that he might be ordered to refund the money lost, and take over the security. No fraud was alleged. The defendant demurred. Held, that the demurrer must be allowed on the ground that there was no jurisdiction in a case of negligence only.

THE plaintiffs by their bill charged that the defendant, who was their solicitor, had acted negligently in advising them to accept the title to a freehold house shown by certain mortgagors as security for an advance of 5000l. The society acting on this advice advanced the 5000l., and it afterwards appeared that the mortgagor's title only extended to one moiety of the lease, and was subject to other charges. By this negligence loss was incurred, the exact amount of which would be ascertained when certain proceedings which were pending for realising the security had been concluded. In the meantime the mortgagors had become bankrupt.

Lindley, Q.C. and Davey, for the demurrer, referred to

Chapman v. Chapman, L. Rep. 9 Eq. 276; 22 L. T.
Rep. N. S. 145;

Smith v. Pococke, 2 Drewry 197;

Jolland's case, 8 Ves. 72;

Craig v. Watson, 8 Beav. 427;

Floyd v. Nangle, 3 Atk. 560;

(a Solicitor).-ALLEN v. JACKSON. [V.C. H.

Dixon v. Wilkinson, 4 De G. & J. 508; 33 L. T. Rep.
39 and 321;

Mare v.
Lewis, V.C. (Ir.) I. Rep. 4 Eq. 219.
Low v. Turner before present Master of the Rolls un-
reported.

Dickinson, Q.C. and Phear, for the bill.-Your Honour is asked to overrule Chapman v. Chapman for the decision at the Rolls in Low v. Turner proceeds upon the footing that Vice-Chancellor Stuart's remarks in Chapman v. Chapman were extra judicial, which we submit is not the case, and therefore Chapman v. Chapman shows that the court has the jurisdiction which we ask it now to exercise. Nothing is clearer than that there is jurisdiction in cases of malfeasance, and there is no distinction in principle between malfeasance and non-feasance or neglect; they cited

Courtney v. Stock, 2 Dr. & Warren 251.

The VICE-CHANCELLOR.-I am of opinion that this demurrer must be allowed. This is a bill for compensation for negligence in the management of the plaintiff's business by his solicitor. His Honour then read the prayer of the bill and continued. The substance of that is to make the solicitor take the security of his client off his hands, this is a novelty and it would be an alarming thing, as Mr. Davey urged, if that was allowed. The case of Smith v. Pococke was wholly difficult in its facts, there the solicitor throughout acted fraudulently. It seems to me that the remarks of Stuart, V.C. in Chapman v. Chapman and the other cases cited for the plaintiffs in this case, are really against them. Treating that as the substance I should, on that ground alone allow the demurrer, but besides there are proceedings pending to realise the security, the amount of the loss will, therefore, be ascertained, and then an action can be brought or other proper measures taken to recover it. Then it is said that in a case of negligence in the investigation of a title there is jurisdiction, but there is no authority for that. In Craig v. Watson there were special circumstances;; it was a case of mixed agency, and trust, and shows no jurisdiction such as is asked. The same may be said of Dixon v. Wilkinson and Jolland v. Jolland. In Chapman v. Chapman which I have already referred to what Stuart, V.C. did say a mere dictum supported by no authority, and the present Master of the Roll's judgment in Low v. Turner carries at least equal weight. As to Mare v. Lewis there were other circumstances in that case. Even if there is the jurisdiction contended for I think the weight of authority is in favour of not exercising it. There is a common law remedy and the plaintiffs can take that, and there is also other litigation pending. If there is the jurisdiction to interfere it is only to be exercised at the discretion of the court, and, considering the nature of the case made by the bill, I do not think it ought to be exercised in this case. The demurrer must be allowed.

Solicitors: Barnard and Co.; Cobbold and Woolley.

Monday, March 22.

ALLEN V. JACKSON.

Construction of will-Restraint on marriage. Gift to married man, with gift over on his marrying again.

A lady by her will gave a life interest to her nephew a married man, but if he should survive his wife, and marry again then his life interest was to

cease.

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