Raven v Kerl
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1848 |
| Date | 07 June 1848 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1111
HIGH COURT OF CHANCERY
raven -c. kerl. June 7, 1848. Upon a reference to enquire whether it was for the benefit of infants in whose name a suit had been instituted, that the same should be prosecuted, the Master reported that it was, and exceptions to his report were overruled ; but a petition to confirm the report, and for payment by the Defendant of the costs of the reference, was, by the Court below, ordered to stand over till the hearing of the cause. Held, on appeal, that such an order was contrary to the practice, and it was discharged, and an order made according to the prayer of the petition. In this suit, which was instituted by the father of several infants, on their behalf, against the trustees of an estate in which they had a contingent reversionary interest, Vice-Chancellor Knight Bruce made an [693] order, on the motion of the Defendants referring it to the Master to enquire whether the suit was instituted for the benefit of the infants, and whether it was for their benefit that the same should be prosecuted, with liberty to state special circumstances. The Master having found in the affirmative on both the enquiries, the Defendants filed exceptions to the report, which were overruled on argument, but the costs thereof were reserved; and a petition subsequently presented by the Plaintiffs, praying that the report might be confirmed absolutely, and that the Defendants might pay the costs of the reference, and, consequent thereon, was ordered by the Vice-Chancellor to stand over till the hearing of the cause, with liberty to the Plaintiffs to proceed with the cause as they might be advised. The Plaintiffs having appealed from that order, Mr. Eussell and Mr. Fooks appeared for the Appellants. Sir Francis Simpkinson and Mr. Stinton, for the Respondents. the lord chancellor, after observing that the order of reference was made on motion, asked whether it was regular to apply by petition, to confirm a report on a reference so obtained, to enquire whether a suit ought or not to proceed? Mr. Russell referred to Fox v. Suwarkrop (1 Beav. 583), in which, after a reference similarly obtained, and a report finding [694] that the suit ought not to be further prosecuted, and exceptions to the report overruled, an application to dismiss the bill, with costs, was made by petition. the lord chancellor. That may have been right; it was a further proceeding in the cause. This point, however, and all other questions as to the regularity of the proceedings, in point of form, were waived by mutual consent, as they had been below (see 1 Deg. & Smale, 243), and the only point discussed was the propriety of the order appealed from; it being contended, on the part of the Appellants, that, after exceptions to the report had been overruled, it was, of course, to confirm it at once, without waiting for the hearing of the cause. On that point, the lord chancellor [Cottenham] said: I think the report at least ought to have been disposed of. It seems inconsistent to-let the suit proceed as if it had been properly instituted, and yet to leave it open whether it was so or not. It would have been more consistent to confirm the report, if it required confirmation (as to which I give no opinion), and to reserve the costs of the petition. But I see no reason why the Court should not have also disposed of the costs at once. The Defendants have taken an interlocutory proceeding in which they have failed, I do not see how anything that can happen at the hearing can interfere with the consequence which naturally follows, or why, the intervention of the Defendants at this stage having failed, [695] they should not pay the costs occasioned by it. It may very well be that a suit on behalf of infants may seem at the commencement to be for their benefit, and yet ultimately turn out otherwise: and the Court does not, by 1112 DUNCAN V. VARTY J PH. 89fi. overruling an objection to the propriety of the suit at this stage, preclude itself for dealing with it at the hearing according to the merits as they may then appear. It is possible that the costs of the cause may have to be paid by the next friend hereafter ; but that would be no reason for throwing upon him the costs of an interlocutory proceeding on the part of the Defendants, quite unconnected with the merits, except so far as they can appear in this stage of the cause, and in which both the Master and the Court have decided that the Plaintiff is right and the Defendants wrong; With respect to the mode in which the case has been brought on, if no one objects to it, the point is not before me; but I think it right to mention it, that this case may not be made a precedent for a departure from the established practice of the Court, which is a eourse which I have too often to complain of. There has scarcely been a step in these proceedings from the beginning to the end in which there is not somo irregularity. For the exceptions themselves were irregular, being objections made to a report founded on an interlocutory order. (See Oitei/ v. Pensaw., 1 Hare, 324.) The order of reference, too, is not in the usual form, the enquiry...
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Duncan v Varty
...to a jury, is it to be said that the costs of that enquiry are not to be disposed of until the hearing of the cause 7 (See Raven v. Kerl, 2 Ph. 692.) I think, therefore, the Vice-Chancellor was quite right in disposing of the costs when he did: and the only remaining question is as to the s......