66 Court would be right in calling upon the plaintiff to establish the character in which he is suing, how much more so must it be in the exercise of the discretion of the Court, when all but one have concurred in the mode of investigating the questions between the parties? Now, what would have been the result if a different course had been followed? Supposing the Court had attended to the application of the Appellant, and had said, Quoad the present Appellant, we will look at the will and see whether the plaintiff is entitled to a decision upon that will, assuming that he is what he represents himself to be:" if the Court had come to a decision against the plaintiff, the present bill would have been dismissed quoad the present Appellant; but the bill would not have been dismissed as against the other defendants. The trial must have gone on if the parties had chosen, and the plaintiff might have got a verdict establishing his title as eldest legitimate son of Richard, his father; and having obtained that, he would have had a right to ask the Court to decide upon the construction of the will. The equity of that Court might or might not have been administered by the same individual; but whether that was so or not, a contrary conclusion might have been come to; and if it had been against the plaintiff, he might have come to your Lordships' bar to have that question decided, whether that construction of the will was right or not: and if your Lordships' House had been of opinion that the Court below had come to an erroneous conclusion in dismissing the plaintiff's bill, the plaintiff would have succeeded; but succeeded against whom? Against all but the most important party represented at your Lordships' bar; because, if the bill had been dismissed as against all but the Appellant, the Appellant 1841. MALONE v. MALONE. 1841. MALONE 12. MALONE. would be no longer a party to the proceeding. That is a position which your Lordships would have had great reason to regret, if the cause had come to your Lordships' bar for adjudication. If the Court was entitled to consider the expediency of the one course or the other, it does not appear to me that under the circumstances there could have been a doubt as to the proper exercise of the discretion of the Court in proceeding in the course in which it had proceeded for several years; namely, ascertaining first the accuracy of the representation of the plaintiff as to the character which he assumed. Therefore, as to the substance of the order of 1839, I have no hesitation in stating to your Lordships that in my opinion that order was correct. Some objections have been made as to the form of the order; which, however, I apprehend to be equally untenable with those to which I have adverted. One objection is, that the form in which the question of right was directed to be tried was not the form in which a matter of that sort could be investigated. The plaintiff claims as heir male; the issue is, whether he be or be not heir male. He endeavours to make out that fact by showing that he is the eldest son after the marriage. No doubt that, if established, would constitute his title. But then it is said that this may let in a title which has accrued subsequently to the institution of the suit. The issue was directed to try the real point, the real point being the character of the heir male the issue, therefore, being directed to try that question, the rest are merely the means by which the character so stated may be established. Then it is said that the issue is not to try whether he is heir male, but to try whether he is heir; and it is said that that is wrong, because it ought to have The been to try whether he is heir male, that is to say, the Another ground of more importance no doubt, but which is equally untenable, regard being had to the practice of Courts of Equity upon this subject, is, that the issue which has been tried is an issue which binds the Appellant, but to which he is not, strictly speaking, a party. My Lords, that is the ordinary course in which issues are directed by a Court of Equity to be tried; and of necessity it is so, because questions arise which affect the rights of a great variety of parties, who may be all interested in the question of the construction of the will: but because an issue is directed, all the parties cannot be defendants. Who is to conduct the defence? Cases have occurred, and some in which I have myself directed issues, where persons were interested in the same estate and interested in the same question, and where there appeared no means of selecting between the one and the other, which should be the party to conduct the defence; and I remember one case particularly of very great importance, in which it was so equally balanced between the two, that I thought it right to give them an equal chance; and therefore I made them both parties to the issue, and put it to them to choose among themselves who should be entrusted with the defence: and I think that suc ceeded: they did select those who should be entrusted 1841. MALONE 0. MALONE. 1811. MALONE V. MALONE. with the defence, without being bound by it. But it frequently happens in a case of that sort, that great numbers of persons are interested; there may be 20 or 30 persons interested in the result of the proceedings are they all to be defendants, and all to have an equal title to conduct the defence? That would be so inconvenient, and would be so impracticable, that it is not the course of the Court. The Court selects those persons whom it thinks the most proper to be selected for that purpose; and if the case requires it, permits the other parties to attend to see that the case is properly conducted and that justice is done. Here the Court very properly selected those individuals who represented all the interests of those claiming under the will of Lord Sunderlin; it selected the trustees, whom the devisees, the owners of the estates, had selected, to conduct the defence; and the order of 1839 gave to the present Appellant, together with others, a right to attend the trial to see whether his trustees properly conducted his defence. My Lords, that being the course of the proceedings, and that being the form of this issue, that disposes of several other minor points which were urged. The parties to the action at law are of course claiming against all the trustees, and representing all under an adverse title: if so, the evidence is to be regulated in the same way. Then there is no objection to the evidence of the persons who have been examined, and who may have died since the former issue and prior to the trial of the issue now directed, being laid before the jury by the best means the Court has of knowing what is said, namely, by the notes of the Judge being read to the jury. Courts of Equity are in the habit, for the purpose of saving expense, of giving directions as to the mode of trial, which might not be correct unless such directions were given: for instance, in directing proceedings to be laid before a jury, they dispense with the formal proof of facts established before the Court of Equity; they save the party the expense of going through that formal proof, and direct certain evidence to be received before the jury. Then there are other objections also founded upon this; namely, that the present Appellant, the defendant, is affected by evidence which might or might not have been false: but when your Lordships consider that the point which has been tried is the same point, and between the same parties, in which the Court came to this conclusion on the original hearing, I have no hesitation in saying I think the Court came to a right conclusion; and that, if the hearing of 1839 had been the first hearing, and no order had been made in 1837, and no order in 1838, and no intermediate trial, it would have equally been so. So much difficulty has arisen in ascertaining the truth, that in my opinion it was the right course for the Court to pursue, to proceed by means of an issue to establish the fact in the first instance, so as to enable the Court then to act upon the fact when found. All these objections having failed, I submit to your Lordships the proper course for this House will be to dismiss the appeal with costs. The orders were accordingly affirmed, and the appeal dismissed, with costs. 1841. MALONE V. MALONE. |