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depended upon the fact of the plaintiffs having by payment to the legatees become entitled to receive out of the 10,000 l. what was due in respect of such legacies; but the evidence, if receivable, would have disproved the title so claimed. The consent given on behalf of the parties entitled to the legacies could not remedy this defect. If a proper consent would have answered the purposes, the consent in this case was useless, some of the parties being married women: but no consent could invest the plaintiffs with the title of the parties entitled. If by such consent they could bar themselves, they could not thereby transfer their rights to the plaintiffs.
It appears to me, therefore, that this decretal order of the 24th of November 1838 is essentially wrong, and must be reversed; but as the supplemental suit is for some purposes at least regular, and may properly be made available for its proposed objects without prejudice to any party, I think the better course will be to reverse the decretal order of 24th November 1838, and to substitute an order directing the plaintiffs to pay the costs of the hearing; and that the supplemental suit do stand over, with liberty for any of the parties to apply. This House has not the means of ascertaining whether any legitimate use may or may not be made of that suit, or upon what terms the plaintiffs ought to be permitted to retrace the steps they have erroneously taken. The Court below will have all the facts before it, and will exercise its judgment how far these suits of 1834 and 1836 may be made available to advance the justice of the case between the parties, regard being had to the decision of this House upon the appeal against the earlier decrees and orders.
The following order was afterwards made:
« That all the decrees and orders complained of in the said appeal, down to and including that of the 11th of July 1823, be and the same are hereby affirmed. That the decretal order of the 24th of November 1838, complained of in the said appeal, be and the same is hereby reversed. That an order be substituted for the said decretal order of the 24th of November 1838, directing the plaintiffs in the suit of 1836 to pay the defendant's costs of the hearing at which the said decretal order of the 24th of November 1838 was made; and that the supplemental suits of 1834 and 1836 do stand over, with liberty for any of the parties to apply, regard being had to the decision of this House upon the said appeal against the earlier decrees and orders."--Lords' Journals for 1842, p. 61.
WHERE no Appellant appears to support an appeal, the only order
the House can make will be to dismiss the appeal for want of prosecution, with costs.
WHEN this appeal was called on, no person appeared on behalf of the Appellant.
Mr. Glasse, on behalf of the Respondent, applied to the House to make an order affirming the decree, with costs.
Lord Brougham :-No; the only order that can under these circumstances be made is to dismiss the appeal for want of prosecution, with costs.
Ordered accordingly (a),
“ That the appeal be and is hereby dismissed this House ; and that the Appellant do pay to the Respondent the costs incurred in respect of the said appeal; the amount, thereof to be certified by the Clerk Assistant.”- Lords' Journals for 1842, p. 98.
(a) See Fraser v. Gordon, ante, Vol. III. p. 718, and the cases cited in the note.
1840: June 11. 15, 16. 18. 22, 23.
1842: February 22.
WILLIAM REVELL VIGERS, managing)
of the Company ...· .. - -)
John Tuchet, Lord Audley, de-l
*** Respondents. Tuchet, the present LORD AUDLEY
A. agreed with P., in consideration of 165,000 1., to grant to P. a lease of certain mines, as trustee for a joint-stock company which P. undertook to form ; the consideration to be paid partly in shares in the company, partly in money to be raised by calls on the remaining shares. The lease was afterwards executed ; and the company having been formed, with power to sue and be sued by one of the directors, entered into possession and worked the mines, and paid part of the purchase money. Upon A.'s death, P., his executor, filed a bill against V., then managing director of the company, for an account and payment of what remained due to A. of the purchase money. V. answered, and then filed a cross bill on behalf of the company, setting forth various matters as evidence of misrepresentations, concealment, and other frauds practised by A. and P. on the company; and prayed that the consideration might be declared exorbitant and fraudulent, and that the company was entitled to a valid lease of the mines at their true reduced value: Or that the said agreement might be declared fraudulent and void, and the company discharged therefrom, and entitled to a
lien on A.'s estates, for the payments made to him.HIELD, 1st, That the company were not entitled to any relief from
the agreement, by reason of acts and misrepresentations which proceeded from themselves, or were adopted by them and acquiesced in after full knowledge, while they continued to work and exhaust the mines : 2d, That, as the executed contract was not to be set aside, A.'s executor was entitled, as matter of course, to the account and payment prayed by his bill.
THIS was an appeal from a decree of the Lord Chancellor of Ireland, in a cause and cross cause be. tween the above parties, arising out of a contract respecting the minerals lying under certain estates hereinafter mentioned. The original bill was filed
by the Respondent Pike, on the 23d of March 1837,
The bill, as finally amended, stated, among other