the last firm; whether, in short, according to the doctrine laid down in In re Forshaw, (a) the lien of a solicitor is affected by his taking a partner, does not arise in this case. On that point we express no opinion. * 28 * TOFT v. STEPHENSON.1 1851. Before the LORDS JUSTICES. November 7, 8, 25. On March 4, 1811, an agreement was entered into for the purchase of freehold land for 63007., to be paid on the 13th of May, 1811, and the purchasers were immediately put into possession.. In 1827, the purchaser, before any conveyance was made to him, and before he had paid any part of the purchase-money, died, having devised the lands to trustees. The trustees disclaimed, and others were appointed by the Court of Chancery. In 1834, the attorney of these trustees wrote to the assignees of the vendor (who had become bankrupt), stating that the purchase-money was ready to be paid on the purchase being completed. On a bill filed by the assignees in 1844, to enforce the lien, to which the Statute of Limitations, 3 & 4 Will. 4, c. 27, was set up as a defence by answer: Held1st. That the trustees were persons by whom the purchase-money was payable within the meaning of the Statute of Limitations, 3 & 4 Will. 4, c. 27, § 40. 2d. That the acknowledgment of their attorney in 1834 was sufficient within the meaning of the exception in the Act to withdraw the case from its operation, and, for this purpose, to bind the cestuis que trustent, although the trustees were appointed not by or under any powers contained in the will, but by the Court of Chancery.2 3d. That the answers claiming the benefit of the statute must be considered as alleging that no acknowledgment of the right to receive the money had been given or signed by the person by whom it was payable, or his agent; and that, therefore, although the bill did not allege any acknowledgment to have been made, the plaintiffs were entitled to put the acknowledgment in evidence on an appeal, although it was not read or proved at the original hearing. 4th. That this only applied to the trustees who had admitted the agency of the attorney, but that, as against other defendants who had not made a similar admission, the assignees were entitled to an inquiry as to any acknowledgment having been given." THE object of this suit was to establish a lien for a sum of 64997. 10s. upon certain lands to which the defendants were en (a) 16 Sim. 121. 'S. C., 5 De G., M. & G. 735; 7 Hare, 1. See Fordham v. Wallis, 10 Hare, 217. 3 See 1 Lead. Cas. in Eq. (3d Am, ed.) 362, [270]. titled, situate at Bawtry, in the county of York. The material facts of the case were the following: — Joseph Marris died about the year 1808, having by his will devised his real estates to Thomas Marris in fee, charged with the payment of his debts. By an agreement in writing, dated the 4th of March, 1811, Thomas Marris agreed to sell to John Stephenson the lands at Bawtry, which were parcel of the lands devised by the will of Joseph Marris, comprising about 151 * acres, in consideration of a sum of 6300l., to be paid 29 on the 13th of May then next. And immediately on the execution of the agreement, John Stephenson was let into possession, though no part of the purchase-money was paid. * In January, 1812, a commission of bankruptcy issued against Thomas Marris and his then partner Richard Nicholson, and the present plaintiffs were their assignees. In October, 1812, John Stephenson agreed to sell to Cornelius Sanders a part of the lands purchased from Thomas Marris, and thereupon Sanders was let into possession, and he and those who derived title under him had ever since remained in possession of this part. John Stephenson, by his will dated the 18th day of December, 1817, devised to two trustees, their heirs and assigns, all and singular his real estates, comprising the above-mentioned lands and hereditaments contracted to be purchased by him, and also all his personal estate and effects, upon trust, if they should think fit, to sell the same, and after payment of his debts to invest the sum of 10007., and pay the interest thereof to his wife Elizabeth Stephenson, one of the defendants, for her life and after payment of a legacy or sum of 51. to his eldest son John Stephenson (who died in the testator's lifetime), to pay and apply the residue of the moneys to arise from such sale, and also the said sum of 1000l. after his wife's death, unto, between, and among his seven children therein named, and any others his child or children who might be living or born in due time after his decease, as tenants *30 in common, with benefit of survivorship. John Stephenson died in 1827, without having revoked or altered his will, and the two trustees named in the will having refused to accept the trusts thereof, the defendants Stephenson and Read were duly appointed trustees in their place, by virtue of a decree of this Court, in * a suit instituted for the purpose by the parties interested under the will. The present bill was filed by the assignees of Marris and Nicholson against Stephenson and Read, and the parties beneficially interested under the will of John Stephenson, and also against the representatives of Sanders, for the purpose of establishing a lien on the property comprised in the original contract of the 4th of March, 1811; and it prayed, that it might be declared that the plaintiffs had a lien upon the hereditaments and premises comprised in the agreement of the 4th day of March, 1811, for the sum of 64997. 18s., with interest thereon at 4l. per cent per annum from the 13th day of May, 1811, and that the defendants Elizabeth Stephenson, Joseph Stephenson, and William Read and Francis Sanders, and William Brocklehurst Stonehouse and Elizabeth his wife, or some or one of them, might be ordered to pay the same to the plaintiffs, as the Court should think fit, at an early day, to be named for that purpose; and in case the said defendants should not pay the same to the plaintiffs, then that the same might be raised by sale or mortgage of the said hereditaments and premises, and for a receiver. The trustees, by their answer, said they did not know, of their own knowledge, but believed it to be true, that, at *31 the time in the bill in that behalf mentioned, Thomas Marris did agree to sell to John Stephenson some portions (to wit), such portions as in the contract in the bill stated appeared, of the real estate to which he had become entitled under the will of Joseph Marris; but they said they had never seen the contract in the bill in that behalf stated, and they expressly claimed the benefit of the production thereof by the plaintiffs: however, they believed, though, for the reasons aforesaid, they could not admit it to be true, that such an agreement as in the bill in that behalf mentioned was entered into between the said Thomas Marris and John Stephenson, and that the same was of such date and in such words and figures, and of or to such purport and effect as in the said bill in that behalf mentioned and set forth, so far as the same was therein set forth; but for their greater certainty they craved leave to refer to such contract. In answer to the interrogatory as to documents, they said that divers deeds and documents relating to the estate of their testator had been and were deposited in Court in a suit of Feary and Others v. Stephenson and Others, and amongst the documents scheduled was the draft of the schedule of the documents so deposited. They admitted correspondence had also been had and passed by and between Mr. Cartwright, their solicitor, and Mr. Holgate, the solicitor of the plaintiffs, in reference to some of the matters in question, and which they submitted it was unimportant in the suit more particularly to specify, and in fact they said that the same was as they submitted immaterial; and that they abstained therefrom, inasmuch as the same extended over a period of many years, and as the specification thereof would occasion considerable trouble and labour, and as the plaintiffs had by their solicitors the particulars thereof. They submitted to the judgment of the Court whether the right and title of the plaintiffs to the relief * 32 sought by the bill in respect of such lien or otherwise as therein mentioned, was not barred by the great laches of the plaintiffs apparent in the cause, and by the great delay and lapse of time which had occurred in putting their claim in suit, and whether the same was not barred by the statute for the limitation of actions and suits. * The cestuis que trustent under the will put in their answers, also claiming the benefit of the Statute of Limitations, but not containing any statement or admission as to Mr. Cartwright being the solicitor of the trustees. The sub-purchaser did not by his answer claim the benefit of the Statute of Limitations. The case came on to be heard before Vice-Chancellor WIGRAM, in March, 1848, and is reported in the 7th vol. of Mr. Hare's Reports, p. 1. A decree was then made (but was not drawn up till February, 1850), ordering the bill to be retained for twelve months, with liberty for the surviving plaintiff to proceed at law, and, in default of the plaintiff's proceeding at law, for the dismissal of the bill with costs. After judgment had been given, but before the decree had been drawn up, the plaintiff discovered among the papers of the bankrupts several letters which he was advised amounted to acknowledgments, so as to exclude the operation of the Statute of Limitations. One of these letters was written from Mr. Cartwright, * the *33 solicitor of the trustees of Mr. Stephenson's will, to the solicitor of the assignees, and was as follows: "To Messrs. Joseph Toft and John Chapman, assignees of the estate and effects of Thomas Marris, a bankrupt, and to Mr. Patteson Holgate, their attorney. "As attorney for and on behalf of William Read, of Epworth, in the county of Lincoln, draper, and Joseph Stephenson, of Everton, in the county of Nottingham, farmer, the person appointed by the High Court of Chancery to carry into execution the trusts of the last will and testament of John Stephenson, late of Craiselound, in the parish of Haxey, and said county of Lincoln, landsurveyor, deceased, I do hereby give you notice that the amount of the purchase-money for all those several pieces or parcels of freehold and copyhold land situate in the parish of Owston, in the said county of Lincoln, mentioned in a certain agreement in writing bearing date the 4th day of March, 1811, and made between the said Thomas Marris of the one part, and the said John Stephenson of the other part, and all interest due in respect of the said purchasemoney, or rent in respect of the said land, are ready to be paid, and that the amount of such purchase-money and interest or rent is lying at banker's, interest; and as attorney as aforesaid, I further give you notice that the said William Read and Joseph Stephenson are willing to invest, at your expense, the amount of the said purchase-money and interest or rent in any security or securities to be approved of by them and you, for the express purpose of completing the purchase under the said agreement; and as attorney I further give you notice, that unless the said purchase be immediately completed, or the said investment be made, the said William Read and Joseph Stephenson will only allow bank*34 er's interest on the amount of the purchase-money from the date hereof to the time of completion of the said purchase. Witness my hand this 13th day of March, 1834. Frederick Henry Cartwright." * A petition was thereupon presented for leave to file a supplemental bill for the purpose of bringing before the Court the new evidence. The petition came on to be heard before Vice-Chancellor WIGRAM on the 21st of July, 1849, and was dismissed with costs. |