Bainbrigge v Baddeley
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1851 |
| Date | 29 January 1851 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1115
HIGH COURT OF CHANCERY
S. C. 9 Beav. 538. See Turner v. Tepper, 1877, 46 L. J. Ch. 706.
[705] bainbrioge v. baddeley. Nov. 13, 1847. [S. C. 9 Beav. 538. See Turner v. Tepper, 1877, 46 L. J. Ch. 706.] A bill of review, or a supplemental bill in the nature of a bill of review, is necessary where the title or subject-matter of the claim, has been directly adjudicated upon in a former suit by a decree declaring or assuming a right, or, in the case of a dismissal of a bill, negativing it: but an order of dismissal is a bar only when the Court has thereby determined that the Plaintiff had no title to the relief sought by his bill, and, therefore, the dismissal of so much of a bill as relates to an issue raised by it which is irrelevant to the relief prayed, is no bar to a new bill by the same party for a different object depending upon the same issue. The proper test by which to try whether a bill, which recites a decree and proceedings in a former suit, is, in reference to such decree, to be considered a supplemental bill in the nature of a bill of review, is to see whether, if such decree and proceedings were omitted from the bill, they could be effectually pleaded in bar to it: for which purpose it is not sufficient that the Plaintiff's claim in the second suit depends upon a determination of some issue at variance with the determination of the same issue in the former suit, unless such issue be relevant to the objects of both suits, and be raised between the parties in the same rights and in reference to the same subject-matter of claim. A purchaser, from the trustees under a will of 1818, of part of the devised estates, filed a bill against the trustees and the parties beneficially interested, suggesting that the-will bad been obtained by fraud, and was invalid, but praying no relief on that supposition, but only that the validity of the will might be inquired into, and 1116 BAINBRIQGE V. BADDELEY 2 PH. 706. that, if it should be found to be valid, the contract might be specifically performed. At the hearing, the bill was dismissed as against all the Defendants, except the trustees, and that part of it which went to impeach the will was dismissed as against the trustees also, and the usual reference was directed as to title, and the Master haying reported in favour of the trtle% a decree was ultimately made for specific performance. Some years after, the same Plaintiff filed another bill against the patties in possession of the rest of the estates under the will of 1818, reciting the former decree aad proceedings; but charging that the will of 1818 had been obtained by fraud and when the testator was incompetent, and praying that it might be set aside, and that the Plaintiff might be declared entitled to the estates unaer a limitation in a prior will of 1815, under which, supposing the will of 1818 to be invalid, his title had just accrued. Held (reversing the decision below) that the decree and proceedings in the former suit were no bar to the institution of the second, on the ground : 1st, that the isaue raised by the first suit as to the validity of the will of 1818 was not relevant to the object of that suit; 2dly, that the two suits were not brought by the Plaintiff in the same right; or 3dly, for the same subject-matter of claim. This was an appeal from an order of the Master of the Rolls, allowing a general demurrer to the bill on the ground of its being, in reference to a former decree which was recited in it, a supplemental bill in the nature of a bill of review, and having been filed without leave of the Court. [7063 The material substance of the bill, which was extremely involved and voluminous, is fully stated in the Lord Chancellor's judgment. Mr. Bethell and Mr. Webster appeared for the Appellant. Mr. Rolt and Mr. Prior, for the Respondent. the lord chancellor [Cottenhaml The facts of this case are very concisely and very clearly stated in the judgment of the Master of the Rolls (see 9 Beavan, 538); but, for the purpose of making intelligible the grounds upon which I am about to decide it, they may be stated in very few words:- The testator made a will in 1815, under which the estates were limited to Mary Ann Bainbrigge for life, with remainder to her sons and daughters in tail, remainder to the Plaintiff in tail. In 1818 he made another will, as it is alleged, under which, if valid, Mary Ann Bainbrigge and her children would take the same interest as under that of 1815; but the Plaintiff was altogether excluded. Upon the testator's death in 1818, the will of that date was acted upon, and, there having been two children of Mary Ann Bainbrigge, the survivor of them did not die until 14th July 1845. Under both wills the estates would be in trust; and the question as to which of these wills ought to prevail could only be agitated by the Plaintiff in a Court of Equity : and it is not in dispute that the present bill is sufficient for that purpose, were it not that it contains a narrative of certain transactions which, it is alleged, renders it open to a general demurrer; which narrative is, in substance, [707] that the heir of law of the testator, who was the Plaintiffs father, having disputed the validity of the will of 1818, an arrangement took place between him and the trustees of that will, under which he, by deed, confirmed that will; and the trustees agreed to sell to him for a valuable consideration a dwelling-house and certain premises, part of the estate, which he afterwards agreed, for a valuable consideration, to sell to the Plaintiff, and to assign to him the benefit of the contract with the trustees of the will of 1818, who, nevertheless, brought an ejectment for the purpose of recovering the possession of these premises; whereupon the Plaintiff filed a bill against them for a specific performance of the contract, which was decreed, and, upon the usual reference, the title was found to be good, no objection, as the present bill alleges, having been made to the title of the trustees, the vendors; and the report was confirmed, all which took place before the Plaintiff's title accrued by the death of the survivor of the tenants in tail in 184S. If that suit had been confined to what I have now stated, it would not have been contended that the proceedings which have taken place raised any impediment to the relief sought by the Plaintiff in the present suit. But that bill was framed iu a very extraordinary manner; for it alleged that the will of 1818 had been obtained by fraud, and that the alleged testator was at the time incompetent, and that the deeds of a PH. 708. BAINBRIGGE V. BADDELEY 1117 confirmation:by the heir at law had also been- obtained by fraud ; and, making parties the persons who claimed under the will of 1818, it prayed an injunction against the ejectment, and that proper directions might be given for ascertaining the validity of the will of 1818 ; and, in case it should be found valid, then for a specific performance of the agreement. All this part of the bill was at the hearing properly dismissed; and that dismissal, it is contended [708] in support of the demurrer, precludes the Plaintiff from ptoceeding with his present bill. That bill alleges that the sole object of introducing ttat matter into the bill for a specific performance was to try the title of the vendors; and such, appears to me to be the fact: for although the bill put in issue the validity of the will of 1818, it prayed no relief contingent upon the event of the will being found invalid, but only upon the contingency of its being found valid; and, indeed, the bill stated no title in the Plaintiff except under the contract -no other connection with the property, if the will were invalid. No mention was made of the will of 1815, and even if the question had been between the devisees of the will of 1818 and the heir at law, the issue tendered would have been immaterial and irrelevant, the Plaintiff having a contract binding upon both the heir and the devisees. The Master of the Rolls, in giving judgment, says that the finding a good title in the former suit would be inconsistent with a decree in conformity with the prayer of the present bill: that he was far from thinking that the proceedings in the former suit were inconsistent with the Plaintiff's title to relief upon another proper bill, but he thought that, after the former proceedings, his bill for sueh relief as he now asks ought not to be filed without the leave of the Court; by which I understand his Lordship to mean that the former proceedings, so long as they stood, and until they were set aside by a supplemental bill in the nature of a bill of review, constituted a bar to the relief prayed by the present bill, because for that purpose only would the leave of the Court be required for filing a new bill. A bill of review, or a supplemental bill in the nature of a bill of review, is indeed necessary when the title or subject-matter of the claim has been directly adjudicated upon in a former suit by a decree declaring [709] or assuming a right, or negativing it in the case of a dismissal of a bill; and the question to be considered is whether, if the bill had been silent as to those former proceedings, they could have been pleaded in bar to the present bill. For this purpose the plea must have averred that the former suit was for the same matter: Davies v. Lord Bvownlow (Dick. 611). So the reference to the Master, in such cases, is to inquire whether the suits were for the same matter. That the same matter was in issue in both suits for different purposes will not support the averment, for, if it could, the dismissal of a bill for one year's tithes upon the supposed want of title in the rector might be pleaded to a bill for the tithes of another year, as in both the title of the rector would be in issue : but that could not be : Minor Canons of St. Paul's v. Crickett (Wightw. 30). It is...
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