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easily transmissible from hand to hand. The special verdict also finds, that all the bonds came to the possession of the executors, as part of the testatrix's personal estate, and were sold and delivered by them, without doing any act out of the jurisdiction of the Prerogative Court, for 7,000l. and upwards, which they had received.

By the 55 Geo. III. c. 184, a certain duty is granted on probates, "in proportion to the value of the estate and effects for and in respect of which such probate shall be granted;" and the law has been settled by the two cases of The Attorney-General v. Dimond (1) and The Attorney-General v. Hope (2), that the duty is to be regulated, not by the value of all the assets which an executor or administrator may ultimately administer by virtue of the will or letters of administration, but by the value of such part as are at the death of the deceased within the jurisdiction of the spiritual Judge by whom the probate or letters of administration are granted. The question is, therefore, whether these securities are to be considered as assets locally situate within the province of Canterbury at the time of the testatrix's death.

The two cases above cited, decided that the French rentes and American stock, which are part of the national debt of France and America respectively, and are transferable there only, and debts due from persons in America, were not assets locally situated here. But it is contended, and we think rightly, that the property which is the subject of this inquiry is distinguishable, and had a locality in England.

Whatever may have been the origin of the jurisdiction of the ordinary to grant probate, it is clear that it is a limited jurisdiction, and can be exercised in respect of those effects only, which he would have had himself to administer in case of intestacy, and which must therefore have been so situated as that he could have disposed of them in pios usus. As to the locality of many descriptions of effects, household and moveable goods, for instance, there never could be any dispute; but to prevent conflicting jurisdictions between different ordinaries, with respect to choses in action and titles to property, it was established as law, that judgment debts were assets, for the purposes of jurisdiction, where the judgment is recorded; leases, where the land lies; specialty debts, where the instrument happens to be; and simple contract debts, where the debtor resides at the time of the testator's death: and it was also decided, that as

(1) 35 R. R. 732 (1 Cr. & J. 356).
(2) 37 R. R. 29 (2 Cl. & F. 84; 8

Bligh (N. S.) 44; affirming 1 Cr. M. &
R. 530).

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bills of exchange and promissory notes do not alter the nature of the Simple contract debts, but are merely evidences of title, the debts due on these instruments were assets where the debtor lived, and not where the instrument was found. In truth, with respect to simple contract debts, the only act of administration that could be performed by the ordinary would be to recover or to receive payment of the debt, and that would be done by him within whose jurisdiction the debtor happened to be.

These distinctions being well established, it seems to follow that no ordinary in England could perform any act of administration within his diocese, with respect to debts due from persons resident abroad, or with respect to shares or interests in foreign funds payable abroad, and incapable of being transferred here; and therefore no duty would be payable on the probate or letters of administration in respect of such effects. But, on the other hand, it is clear that the ordinary could administer all chattels within his jurisdiction; and if an instrument is created of a chattel nature, capable of being transferred by acts done here, and sold for money here, there is no reason why the ordinary or his appointee should not administer that species of property. Such an instrument is in effect a saleable chattel, and follows the nature of other chattels as to the jurisdiction to grant probate.

In this case, assuming that the foreign Governments are liable to be sued by the legal holder, there is no conflict of authorities, for their Governments are not locally within the jurisdiction, nor can be sued here; and no act of administration can be performed in this country, except in the diocese where the instruments are, which may be dealt with and the money received by their sale in this country. Let us suppose the case of a person dying abroad, all whose property in England consists of foreign bills of exchange, payable to order, which bills of exchange are well known to be the subject of commerce, and to be usually sold on the Royal Exchange. The only act of administration which his administrator could perform here would be to sell the bills and apply the money to the payment of his debts. In order to make titles to the bills to the vendee, he must have letters of administration; in order to sue in trover for them, if they are improperly withheld from him, he must have letters of administration, (for even if there were a foreign administration, it is an established rule that an administration is necessary in the country where the suit is instituted) (1): and that (1) Story on the Conflict of Laws, 421.

these letters of administration must be stamped with a duty according to the saleable value of the bills, the case of Hunt v. Stevens (1) is an express authority.

If this be the law in the supposed case, it is impossible to distinguish it from that under consideration. Here are valuable instruments in England, the subjects of ordinary sale; the debtors by virtue of such instruments, if there are any, resident abroad, out of the jurisdiction of any ordinary, and consequently, there being no fear of conflicting rights between the jurisdictions who are to grant probate. If these were the only effects in England of the deceased, (a supposition which would simplify the case), there would be no question as to the necessity of probate, not only to make title to them by sale to any one who knew that they were the property of the deceased, or chose to inquire into the title, but, certainly, in order to sue for them against a wrong doer; against a banker, for instance, who had received them from the deceased and refused to deliver them to the executor or administrator; and the probate must surely be stamped according to the value of the only effects which could be sold, disposed of, or recovered under it. And if this be true, if they were the only effects, it must be true that the duty must be paid on their value if they form part of the effects of the deceased.

We think, therefore, that in this case these instruments are of the nature of valuable chattels, saleable here, and which can be administered here, and therefore that their amount should be included in the value of the testator's effects. The Crown therefore is entitled to judgment.

Judgment for the Crown.

HAYWARD v. GIFFARD AND GROVE (2).

(4 Meeson & Welsby, 194-197; S. C. 7 L. J. (N. S.) Ex. 256; 6 Dowl.

P. C. 699.)

This Court will not interfere to make a person who is not a party to the record pay the costs of the action, though he is the real party interested in the event of it.

JERVIS had obtained a rule calling upon one George Spencer to show cause why he should not pay forthwith to the defendant,

(1) 3 Taunt. 113.

(2) Followed in Evans v. Rees (1841) 2 Q. B. 334; cited in judgment of Judicial Committee, Ram Coomar Coondoo v.

R.R.-VOL. LI.

Chunder Canto Mookerjee (1876) 2 App.
Cas. 186, 212; and referred to in the
judgment of a Scottish case, Fraser v.
Mallock [1896] 23 Rettie, 619.-R. C.

34

A.-G.

v.

BOUWENS.

[194]

1838.

Exch, of
Pleas.

[194]

V.

GIFFARD.

HAYWARD Francis Giffard, the sum of 1127. 14s. 3d., the amount of the taxed costs on the judgment as in the case of a nonsuit in the above cause, and also the costs of the application. The action was brought against the defendant Giffard, as clerk to the Trustees of Tothill Fields, acting under an Act of Parliament for paving, lighting, and improving the district called Tothill Fields; and the other defendant, Edward Grove, was and acted as a constable or broker for the trustees in making a distress upon a house in the district, occupied by the plaintiff as tenant to the said George Spencer. The affidavits upon which the rule was obtained stated a variety of facts, for the purpose of showing that Spencer was the real plaintiff, and not Hayward; and they set forth an admission by the plaintiff's attorney, whereby he agreed to admit on the trial of the cause" that the action was brought by and at the expense of the said George Spencer, and that the said John Hayward was the nominal plaintiff only." The cause, however, did not proceed to trial, but judgment as in case of a nonsuit was signed, and the defendants' costs were taxed at the above mentioned sum of 112l. 148. 3d.

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This application, calling upon a person who is not a party to the record to pay the costs of an action after judgment has been signed, is altogether without precedent, and no case of a similar application can be found. Many cases may be found where, in the early stages of a cause, a plaintiff has been compelled to give security for costs: but even in those cases the Courts require the application to be made in the first instance, so as not to allow the party to incur costs. And the reason for such practice is, that thereby the party is prevented from going on and increasing the amount of costs until he has given security for them, which may induce him to consider whether he has any good grounds for proceeding in the action. Here the party ought to have come to the Court immediately after the admission was made, and not have waited until after judgment was signed. He cited Adams v. Brown (1), and Berkeley v. Dimery (2).

Jervis and Turner, contrà :

In this case, Spencer, the real plaintiff, is seeking, in the name of Hayward, to try a right respecting his property, and ought

(1) 9 Bing. 81; 2 Moore & Scott, 154.

(2) 10 B. & C. 113.

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GIFFARD.

therefore to be compelled to pay the costs of the action. In cases HAYWARD of ejectment it is frequently done; and in Doe d. Martin v. Gray (1), the Court, in an action of ejectment, compelled the real defendant, although he was not the party on the record, to pay the costs.

(PARKE, B.: Those cases proceed on a different ground: that as landlord was the real defendant, he ought to have entered into the landlord's rule. The defendant should have come to the Court for security for costs.)

This is in truth the same as an ejectment, for it is an action to try a right affecting the property of the landlord. There can be no doubt here *that Spencer is the real plaintiff; the attorney in the cause has admitted that he is, and he himself has not ventured to deny it.

(LORD ABINGER, C. B.: What jurisdiction have we over persons who are not parties to the record? We have over attornies and officers of the Court: but in a case where persons are not parties to the record, and have committed no contempt, how could we enforce our order?)

It may be enforced by attachment for disobedience to a rule of Court. In Doe d. Martin v. Gray, the party against whom the order was made was not a party to the record. In Hewitt v. Tregonning (2), an application similar to the present was made in an action for trespass, and although LITTLEDALE, J., refused the application, it was because he did not think the affidavit was sufficient to warrant his interference; but he did not appear to have any doubt as to the jurisdiction of the Court.

LORD ABINGER, C. B.:

If we were at liberty to consult equity and justice, we should probably make this rule absolute. But the authority of the Courts at Westminster is derived from the Queen's writ, directing them to take cognisance of the suits mentioned in the writs respectively, and thus bringing the parties before them. This being so, they have no power to order any particular individual to come before them at their pleasure. In the present case, if it could have been shown that Spencer had committed any contempt of Court, or been guilty, in respect of this suit, of any thing in the nature of barratry or maintenance, it would have been another matter; but we cannot (1) 10 B. & C. 615. (2) 5 Dowl. P. C. 404.

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