Thomas Foster, George Cleeve, and James Baikie, - Appellants; Sir Charles Cockerell, Bart., - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | High Court of Chancery |
English Reports Citation: 5 E.R. 1315
COURT OF CHANCERY.
Mews' Dig. i. 331; ix. 1562. S.C. 3 Cl. & F. 456; and, in Ch., 1 My. & K. 297; 2 L. J. Ch. 84. Explained in Ward v. Duncombe, [1893] A. C. 390, where the principal authorities are collected and examined; and see In re Wasdale, [1899] 1 Ch. 163.
FOSTER V. COCKERELL [1 8 5] ix MIMI N. Sò sustained. A demurrer has been put in to the whole bill now, whatever the ancient practice might be, it is quite clear that a supplemental bill for a discovery merely may be filed either where new facts have occurred since the commencement of the original suit, or where facts which have existed before, have been discovered at such a period of the original suit, that the party would not have a right to avail himself of them in that original suit. This is permitted for the purpose of preventing a failure of justice. It has, however, been decided, that where the fact did exist before the filing of the original bill, and was known at such a period that the party might have availed himself of it in the original suit, he would not be entitled to file a supplemental bill for a discovery, because he would not have a right to file such a bill for the purpose of supplying an omission arising solely from his [331] own negligence ; the principle, therefore, of the Court seems to be this, that where it is necessary to file a bill for the purpose of obtaining a discovery which could not have been obtained in the original suit, then a supplemental bill for a discovery may be sustained. I think that is the principle to be extracted from this decision, and it is analogous to the rule upon which bills of discovery are allowed to be filed in aid of actions at law, you cannot obtain a discovery in a court of law, and, therefore, for the purpose of preventing a failure of justice, a court of equity allows a bill to be filed for the purpose of obtaining a dis- covery which is to aid the party in his suit at law. Now, what are the facts of this case 1 The original bill was filed, and the answer put in, but no discoveryùthat is, no effectual discoveryùwas or could be obtained under such circumstances. Following the principle upon which bills for discovery are founded for the purpose of preventing a failure of justice, and of providing a remedy for the defects of the original proceeding, the party should have a right to file a bill for a discovery, where that discovery has been imperfect in the original suit, in consequence of the infant not having made a full answer, by his guardian ; as far, therefore, as relates to those interrogatories which form part of the original bill, and which were not answered by the Defendant in the original bill, the supplemental bill for discovery must be sustained. But then there are certain other facts inserted in this supplemental bill, which form no part of the original bill ; and it is not averred that these facts did not exist, or that they were not known by the Plaintiff when the original suit was instituted for any thing that appears to the contrary, therefore they might have formed a part of the original bill, and if they had formed a part of the original bill, they might have been answered, and fully answered, by the Defendant, the infant. But then this is a demurrer to the whole bill ; and though, if these interrogatories had been the only part of the supplemental bill for a discovery, the demurrer might, possibly, have been sustained on the ground that the party had no right, in consequence of his own negligence, to file a bill of this description, yet as it is a demurrer to the whole bill, and I am of opinion that a part of it ought to be answered, it follows that the demurrer must be overruled. (332] ENGLAND. COURT OF CHANCERY. THOMAS FOSTER, GEORGE CLEEVE, and JAMES BAIKTE,ùAppellan ; Sir CHARLES COCKERELL, Bart. ,ùBespanclent [18 3 51. [Mews' Dig. 331 ; ix. 1562, S.C. 3 Cl. & F. 456; and, in Ch., 1 My. & K. 297 ; 2 L. J. Ch. 84. Explained in Ward v, Duncombe, [1893] A. C. 390, where the principal authorities are collected and examined ; and see In re Wasdale, [1899] 1 Ch. 163.] M., by deeds executed in 1812, conveyed lands to trustees in fee, upon trust, to raise money by sale or mortgage to pay off the debts of B., and to pay the surplus of monies raised in M.'s lifetime to him, and of monies raised 1315 ix BUG FOSTER V. COCKERELL [18 his death to B., and to stand seised of the estates unsold in trust for M., during his life, and after his decease in trust for B, in fee. By deeds executed in 1813, B. granted annuities to the Appellants, and by deeds of the same date, and to secure the annuities, gave powers of distress and entry upon the lands comprised in the deeds of 1812, and demised the lands to trustees for a term. The annuities were also further secured by warrants of attorney, and judgments thereon, and memorials of them were enrolled. By deeds executed in 1814, B. conveyed to the Respondent all the monies and premises to which he was entitled under the deeds of 1812, to secure the replacing of £20,000 navy 5 per cents. lent to B. by the Respondents. M. died in 1817. Part of the lands were sold in the lifetime of M. ; the residue were sold after his death, and a surplus remained after execution of the trusts. In 1819 the Respondent gave notice of his incumbrance to the surviving trustee. Upon a suit in equity it was decreed that by the effect of the notice the Respondent had gained a priority of charge upon the fund. This was an appeal from an order of the Master of the Rolls, dated the 5th of March 1833. By indentures of the 21st and 22d of February, [333) 1812, George Duke of Marlborough, conveyed lands, etc. in Berks, Bucks, Wilts, and. Harts, to James Blackstone and Thomas Coutts, in fee, upon trust to raise money, to pay off annuities granted by the Marquis of Blandford, and also, if the trustees thought proper, to pay the debts of the marquis. For which purposes the trustees had power to sell the lands, etc., or in the mean time to mortgage them, and, by means of the proceeds, to re-purchase the annuities, and if the trustees should think proper, but not otherwise, to pay the debts of the marquis, and to pay the ultimate surplus of the money, raised in the lifetime of the duke, to *him, and the surplus of the money raised after the duke's death, to the marquis ; and the trustees were to stand seised of the estates unsold, in trust for the duke for life, and, after his decease, in trust for the marquis in fee. The trustees, under the powers of this deed, raised £15,000 upon xnortgage of estates in Hertford. By indenture of the 13th of August, 1812, the trusts were enlarged. The trustees were thereby empowered to raise money to pay interest of debts, and premiums of insurance : they were also authorised to raise money upon annuities, and subject to such trusts, they were to pay the surplus of monies, raised in the lifetime of the duke, to him, and the surplus of monies raised after his decease, to the marquis, and to stand seised of estates unsold, for the duke for life ; and after his decease, in trust for the marquis in fee. And the deed contained a declaration, that the trustees might exercise, partially or wholly, the trusts for paying the debts of the marquis. A third deed was executed on the 20th October, 1813. E3343 Under the powers given to them by the three several indentures above stated, the trustees James Blackstone and Thomas Coutts, from time to time raised various sums of money by way of mortgage, and by granting annuities, and executed various deeds for securing the sums so raised, to the persons who advanced them, and amongst others, they, in the month of February, 1814, made and executed certain indentures of lease and release, dated respectively the 12th and 14th days of that month, whereby they conveyed and assured to Sir William Paxton and Archibald Paxton, both since deceased, and to the Respondent and Henry Trail Esq., such of the manors and other hereditaments, comprised in the said indenture of release of the 22d of February, 1812, as were situate in the counties of Berks and Hertfordshire, by way of mortgage, for securing to them, and the survivors of them., the sum of £45,000 and interest, In further performance of the trusts reposed in them by the several indentures of the 22d of February, 1812, the 13th of August, 1812, and the 20th of October, 1813, the trustees, Thomas Coutts and James Blackstone, sold, or contracted and agreed to sell, all such of the estates comprised in the indenture of release of the 22d of February, 1812, as were situate in the several counties of Buckingham, Hertford, and Wilts, and divers parts of the purchase monies of those estates were received, and were paid 1316 FOSTER COOKERELL [183 5 IX BLIGR N. and applied by them in the lifetime of George Duke of Marlborough in pursuance of the trusts of the three several indentures, of the 22d of February, 1812, the 13th of August, 1812, and the 20th of October, 1813: other parts of such purchase monies, were re-[335]-ceived in the lifetime of George Duke of Marlborough, by the same trustees, and remained in their hands at his death, and other parts of the purchase monies were, at the time of the death of George Duke of Marlborough outstanding, and remaining due from some of the purchasers. George Duke of Marlborough died on the 30th of January, 1817. Thomas Coutts died in the month of February, 1822. in Michaelmas term, 1824, the Appellants, Thomas Foster and George Cleeve, together with William Walter, who is since dead, filed their bill of complaint in the High Court of Chancery, which was afterwards amended in pursuance of an order obtained for that purpose ; and the bill so amended was against James Blackstone, Harriett Coats widow, now Harriett Duchess of St. Alban's, Sir Coutts Trotter, baronet, Edward Majoribanks, Sir...
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