1841 Chancery. ENRIGHT v. FITZGERALD. Nov. 13. a decree opened on the ground of surprise. (In Chancery.) Enrolment of THIS was an application to open the enrolment of the decree, which was pronounced on the 12th of November 1839, and made up on the 13th of October 1841. One of the plaintiffs having died after the decree was There is no made up, a bill of revivor was filed on the 21st of October 1841, and ground for giving greater subpoenas to revive were served on the 27th of October. On the 28th facility to the the plaintiff's Solicitor wrote to the defendant's Solicitor, asking whether opening of enrolments here he would appear to the subpoenas to revive, and at the same time than in Eng- informing him of his intention to re-hear the cause. The defendant's land. Solicitor returned no answer to the letter, but enrolled the decree on the 1st of November, without giving any notice of his intention to do so to the plaintiff's Solicitor, who swore that he first heard of the enrolment on the 3rd of November. Sergeant Warren, with whom was Mr. Boyle Keller, now moved to open the enrolment, and contended that it was a surprise on the plaintiff's Solicitor, and also that it was irregular, as being obtained contrary to the terms of the general order of 31st March 1817, which requires the leave of the Court to be obtained for enrolling a decree when more than two Terms are allowed to elapse since it was pronounced. They cited Muskerry v. Chinnery (a) and Robinson v. Newark (b), as to the question of regularity, and relied upon Kemp v. Squire (c), and Stevens v. Guppy (d), upon the question of surprise. They also contended that there ought to be greater facilities afforded for re-hearing a cause in this country than in England, in consequence of the greater expense of prosecuting an appeal; and relied, for this purpose, upon the observations of Lord Plunket, C., in Jackson v. Welsh (e). The Attorney-General, contra. The LORD CHancellor. The enrolment was I must make the order sought for in this case. clearly irregular; and even if it were not, a clear case of surprise has been made out. I should be very sorry, however, to accede to the doctrine that there should be one rule here and another in England respecting the (a) 4 Law Rec. N. S. 15. (c) 1 Ves. sen. 204. (b) 3 Mer. 14. (d) Tur. & Russ. 178. (e) 1 Dru. & Walsh, 258. opening of enrolments. In the present case, on the 28th, the plaintiff's Solicitor having occasion to revive the suit, writes to the defendant's Solicitor, asking him whether he would appear, and at the same time informs him of his intention to re-hear the cause. No answer is returned to that, as there ought to have been in the regular course of business; but on the 1st of November the defendant's Solicitor snaps an enrolment behind the back of his opponent, whose vigilance he had lulled to sleep by his conduct. Upon the ground, therefore, of surprise, without reference to the irregularity, I think the enrolment, in this case, must be opened. 1841. Chancery. ENRIGHT V. FITZ GERALD. HERON v. STOKES. Dec. 8. a decree obtained con THIS was an application to open the enrolment of the decree, for the Enrolment of purpose of re-hearing the cause. The decree had been pronounced upon the 2nd of February 1841, and enrolled on the 9th of November trary to the 1841, without obtaining any special order for the purpose. The Attorney-General and Mr. Collins, Q. C., now moved to open the enrolment, on the ground that it had been obtained irregularly, and relied upon the rule of the 31st of March 1817. Mr. Keatinge, Q. C., and Mr. R. R. Warren, contended that the rule had not been acted on; and cited Tisdall v. Lady Charleville (a), where Lord Redesdale upheld the established practice of the Court, although in direct opposition to a General Order (b). Besides, they contended that the notice was insufficient, as the parties did not specify the irregularity in their notice of motion. [THE LORD CHANCELLOR.—It is sufficient for a party to say, generally, that the proceedings are irregular.] Mr. Collins, Q. C., in reply. The LORD CHANCELLOR. The case of Tisdall v. Lady Charleville amounts only to this, that the rule which was there relied on had ceased to operate because it was obsolete, and, therefore, the Court ceased to pay any attention to it. The regularity of the enrolment in the present case depends upon the Rule of 1817, which there is no pretence for saying is obsolete, and (b) 26th Dec. 1728. (a) 2 Sch. & Lef. 392. terms of the order of 31st of March 1817, opened on that ground. party moving to set aside proceedings on the ground of irre A gularity, is not bound to specify in his notice the particular irregu larity of which he complains. 1841. Chancery. HERON V. STOKES. which is clear and distinct in its terms-" That every decree or dismiss "pronounced in Hilary or Easter Terms, or the Sittings after, which the "party may be desirous to enrol, shall be drawn up and signed before "the beginning of next Michaelmas Term; and every decree or dismiss "pronounced in Trinity or Michaelmas Terms, before the beginning of "the next Easter Term, and not afterwards without order of the Court." This enrolment has been obtained directly contrary to the terms of that order, and must therefore be opened. 1842. Jan. 15. HENN v. BRADSHAW. The General THIS was a motion to open the enrolment of a decree, on the ground Order of Octo- that the enrolment was irregular, and also on the ground of surprise. ber 1835, re of specting the enrolment decrees, is not a repeal of the order of March 1817, upon the same subject. An enrol The decree was pronounced on the 7th of May 1840, and was enrolled 28th of August 1841, without notice to the Solicitor of the party who now sought to open the enrolment, and without obtaining any order for the purpose, as required by the General Order of the 31st of March 1817. The Solicitor of the party who now made the application, ment obtained made an affidavit, stating that he had been advised by his Counsel to after the period specified in the present a petition of re-hearing, which was accordingly prepared and latter order, signed by Counsel; and, just as he was about to present it, he discovered, on inquiring at the Rolls' Office, that the decree had been enrolled, of which he was altogether ignorant until then. without a spe cial order for the purpose, is irregular, and the practice to the contrary is wrong. The motion had been moved on a preceding day (January 11), whenit having been contended that the enrolment was obtained in conformity Course to be with the practice that had prevailed in the office ever since the General adopted by the Court in acting Order of the 28th of October 1835, which was considered as a repeal of the order of 1817-the Lord Chancellor directed inquiries to be made in the office respecting the practice, and that the motion should stand over. on the Order of 1817 for the future. The result of the inquiries was, that the Officers considered the Order of 1817 to be repealed by the Orders of October 1835, and had acted upon that understanding. Sergeant Warren and Mr. W. Brooke, Q. C., for the motion, now contended that the practice that had prevailed was erroneous, as the order of 1817 was quite consistent with those of 1835. Mr. Pigot, Q. C., and Mr. De Moleyns, contra. The LORD CHancellor. I cannot say that I see any difficulty in the construction of those two orders. It appears that at the time the order of 1817 was made, it was considered that for a certain time after a decree was pronounced, while the attention of the parties was directed to the subject, and they were vigilant in watching it, the enrolment of the decree might properly be obtained without any special order for the purpose. But the Court thought that when that time had elapsed, and the attention of the parties. had ceased to be directed to the subject, the same reason did not exist, and it was thought right that a special order should then be obtained for enrolling the decree. Now supposing that under the order of 1817 the Lord Chancellor did his duty, and inquired unto the circumstances (and I mean no disrespect to any of my predecessors by putting it in that way), then if he did not direct notice of the application to be given to the opposite party, he ought to see that every thing was correct: because the order of 1817 was evidently intended as a check to some extent upon enrolments, and directs that after a certain time they shall not be had without special order. The rule does not prescribe that notice shall be given, nor does it say that it shall not; and if the Lord Chancellor thought it necessary that the opposite party should have notice of the application he might direct notice to be given, and he ought either satisfy himself that the enrolment was proper, or direct notice to be given. The first question is, what was the reason of the Rule of 1817, and what was its operation. Then the question is, whether it has been repealed by the order of 1835, and if it has, it would be right to consider whether a new order upon the subject would not be necessary. Now, I confess, I do not think that any new order is necessary. The order of 1835 does not refer to the order of 1817 at all; it recites an order of a later date, viz., the 138th order of 1834, and the mischiefs that had arisen from it, and it proceeds to remedy those mischiefs. It is ordered by it, that a suitor "entitled to enrol a decree" shall do such and such things. It points out what were the defects under the order of 1834, and directs that, instead, certain other things shall be done. The order of 1817 is not touched at all by those directions; it says, that instead of an engrossment, the suitor entitled to enrol a decree shall pursue a certain course; and I find that when six months have elapsed from the pronouncing of the decree, that the suitor is not entitled to enrol a decree without a special order. It strikes me that whatever the practice has been since the order of 1835, that the latter does not touch the order of 1817, and that the two are perfectly consistent. The one regulates the contents of the enrolment, the other the mode in which the enrolment is to be effected after a certain time, and it appears to me that they both stand perfectly well together. The course which I shall adopt with respect to the enrolments is this, when the time specified in the order of 1817 has elapsed 1841. Chancery. HENN v. BRADSHAW 1842. Chancery. HENN บ. BRADSHAW. the pronouncing of the decree, I shall make an order for the enrolment, course. In the present case the enrolment must, of course, be opened. THE COMMISSIONERS OF CHARITABLE DONATIONS 1841. Dec. 16. A testatrix gave such sum of stock as she should be pos sessed of at her death to A. and B., to be by them ap plied to chari table purposes according to her instructions deposited with A." The instructions given to A. were verbal, leaving it to his discretion to select the charitable pur poses to which it was to be applied; Held, that this was a good gift of the stock to charity, and that the Court would direct a scheme for its application. V. SULLIVAN. gave and MARGARET SULLIVAN, by her will bearing date the 29th of November The testatrix, by a codicil bearing date the 26th of January 1837, gave another charitable legacy, but in no other respect altered her will; and she died shortly after the date of the codicil, without having revoked her will. The executors renounced, and administration with the will annexed was granted to the defendant, who was one of the residuary legatees. At the time of the death of the testatrix she was possessed of a sum of £350 new three-and-a-half per cent. stock standing in her name, and the present bill was filed to carry the trusts of the will, relating to this sum of stock, into execution, for a discovery of the instructions deposited with the Rev. Andrew O'Connell, and, if necessary, for a reference to the Master to settle a scheme. It appeared by the answer of the Rev. Andrew O'Connell, which it was consented should be read as if it were a deposition made by him in the cause, that no written instructions had been deposited by the testatrix with him, but that she had given verbal instructions as to the disposition of the £350 stock, leaving the application of it, in a great measure, to his judgment, provided the purposes, to which it was applied, were charitable. |