Ostell v Le Page
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 1852 |
| Date | 16 December 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 1121
COURT OF APPEAL IN CHANCERY
S. C. 5 De G. & S. 95; 21 L. J. Ch. 501; 16 Jur. 404. See Wilson v. Ferrand, 1871, L. R. 13 Eq. 367; Mutrie v. Binney, 1887, 35 Ch. D. 620; In re Henderson, 1887, 35 Ch. D. 717.
[892] ostell . le page. Before the Lords Justices. Dec. 16, 1852. [S. C. 5 De G. & S. 95 ; 21 L. J. Ch. 501; 16 Jur. 404. See Wilson v. Ferrand, 1871, L. E. 13 Eq. 367; Mutrie v. Binney, 1887, 35 Ch. D. 620; In re Hendersm, 1887, 35 Ch. D. 717]. Before this Court interposes upon an interlocutory application to stay proceedings, in a suit by reason of a decree or judgment in a foreign country, it must be satisfied that the foreign decree or judgment does justice and covers the whole subject of the suit. This was an appeal from an order of Vice-Chancellor Stuart, in the terms of a motion for the stay of all proceedings in a suit in this Court, on the ground that a decree in the same matter had been made by the Supreme Court of Jurisdiction at Calcutta. The facts of the case will be found stated in a report of the hearing, upon a plea of the pendency of the Calcutta suit before the decree on it had been made. This hearing took place before the late Vice-Chancellor Parker, and is reported 5 De Gex & Smale, 95. The plea was overruled by the Vice-Chancellor on the 5th December 1851, and the Defendant then obtained time until the then next Trinity term to put in a further answer, on the ground that it would be necessary to have this time in order to have the books sent from India, to enable him to put in a further answer. On the 22d of May 1852 he put in a further answer. By the original decree in the Indian suit, of the 7th of February 1851, it was referred to the Master to take an account of the partnership dealings and transactions, between Thomas Ostell and the Defendant Le Page, from the commencement of the partnership up to the 30th of December 1841, and of the outstandings and collections thereof, and also of the partnership dealings and transactions between Mary Ostell (the present Plaintiff), the administratrix of the estate of Thomas Ostell deceased, and the Defendant, from the commencement of such [893] partnership to the 21st of October 1848. By the same order, it was further ordered that the Defendant should be at liberty to lay before the Master any proposal for a compromise on payment of a fixed sum, instead of taking the accounts before directed ; and if the Defendant should lay such proposal before the Master, then the Master was to inquire and state to the Court whether it would be for the benefit of Olivia Mary Margaret Ostell, the infant daughter of Thomas Ostell deceased, that such proposal should be accepted. The Master of the Supreme Court, by his report, dated the 17th of May 1852, C. xxn.-36 H22 OSTELL 1).. LE PAGE 2 DE 0. M. & fl. 8S4. certified that he had been attended by the attornies for the Complainant and for the Defendant respectively, and that the Defendant had laid before him a proposal for a compromise, on payment of a fixed sum (instead of taking the said accounts), that is to say, that the Defendant should purchase all the interest of the infant in the matters in dispute, for the sum of 63,842 rupees, 8 annas and 11 pice. The report then set forth the details of the manner in which this amount was proposed to be secured and paid. The Master certified that he had heard and considered the evidence adduced before him in support of such proposal, and he found that, having regard to the nature of the partnership business, to the great delay and expense which must be incurred if the partnership accounts, from the commencement of the partnership in 1840 up to the termination thereof, were taken, and the numerous items thereof proved and established in the usual way, and to the health and the pecuniary means of the Defendant; considering also from the account submitted to him that it was highly improbable that a larger sum than company's 63,842 rupees, 8 annaa and 11 pice, would or could be realized out of the assets of the partnership on account of the infant's share and proportion therein, [894] besides the great uncertainty as to the time when the amount of the infant's share could actually be reduced into possession by her or the Complainant, or any other person or persons on her behalf, it would, in hia opinion, be for the benefit of the infant that such proposal of the Defendant for compromise should be accepted. By an order, on further directions, of the 2cl of July 1852, on which the present motion was founded, the Supreme Court of Calcutta declared that the proposal for compromise, mentioned in the report of the Master, was for the benefit of Olivia Mary Margaret Ostell, the infant, and ought to be accepted; and ordered and decreed the same accordingly. And it was ordered that the Defendant Richard Chaffm Le Page should be at liberty, according to the terms of the compromise, to purchase all the interest of the infant and of the Complainant, as such administrator and such attorney of Margaret Ostell, as in the pleadings mentioned in the matters in dispute, for the sum mentioned in the report. And the decree then directed the payment by instalments according to the terms of the compromise, and payment of the costs by the Defendant Le Page. It was disputed, on the part of the Plaintiff, that Mr. Molloy, the Plaintiff's attorney before the Supreme Court, had authority to accept the above compromise, or had in fact accepted it. Mr. Eussell and Mr. Bagshawe, for the Appellants. Mr. W. M. James and Mr. Cotton, for the Respondents. the lord justice knight bruce. Before interference by this Court upon an interlocutory [895] motion for the purpose of staying a suit, of which it is seised (if I may use the expression), by reason of a decree or judgment obtained in a foreign country, it ought to be well satisfied that the decree or judgment in the foreign country does justice, and covers the whole subject. There may be a stage of a cause at which the point may be a matter of indifference ; for there are instances in which a sentence, decree, or judgment is conclusive and not examinable by any other Court, however unjust it may be shewn to be; and there may be a period of this cause when it may be in vain to say that this Indian proceeding was unjust (if it waa in fact unjust). But that time is not come. At present, for the purpose of an interlocutory motion, not only is my mind not satisfied that this decree was just; not only is my mind not satisfied that it ought to bind; but my mind is not satisfied also that it covers the whole matter in dispute between the litigant parties. Reserving, therefore, to the Defendant the fullest power of availing himself in the regular and ordinary way of this defence, it is not one of a nature to which, in my judgment, this Court can with safety listen for any effectual purpose on this occasion. The order which I should propose to make would be this-to refuse the motion that was made before the Vice-Chancellor, without prejudice to any question, and to let the costs of the motion there and the motion here be costs in the cause. the lord justice lord cranworth. I concur in the result at which my learned brother has arrived. I do not at all differ from the argument on the part of the Defendant, that if there has been in a foreign Court of competent jurisdiction a final adjudication upon [896] the aame matter between the same parties; and that matter, so adjudicated upon, is 2 DEO. M.&G.M7. PIDCOCK V. BOULTBEE 11'23 attempted to be renewed here between the same parties, it would be...
To continue reading
Request your trial
-
Wigmans v AMP Ltd
...95 ER 701 at 701]; Harley v Greenwood (1821) 5 B & Ald 95 at 101 102 [ 106 ER 1128 at 1131]; Ostell v Lepage (1851) 5 De G & Sm 95 at 105 [ 64 ER 1034 at 1038]. See Bullen and Leake, Precedents of Pleadings in Personal Actions in The Superior Courts of Common Law, 3rd ed (1868) at 473 108 (......
-
Venning v Loyd
...Company v. Madaren (5 H. Lords Cas. 416); The London and North-Western Railway Company v. Lindsay ('2 Macq. 184); Ostell v. Lepage (5 De G. & Sm. 95); Penndl v. Hay (3 De G. M. & G. 126); fiushby v. Munday (5 Madd. 297); Bunhwy v. Bunhury (1 Beav. 318). Judgment reserved. Dec. 19. the lord ......
-
Maunder v Lloyd
...overruled: there is no decree: and, if there were, the representative of Edward Lloyd is not a party to that suit: Ostell v. Le Page (5 De G. & Sm. 95 ; S. C. 2 De G. M. & G. 892), De la Fiesca v. Lubbock (10 Sim. 629), Chambers v. Bicknell 2 Hare, 536). Mr. L. Mackeson, for Leonie Gaetjens......