he signed a certain writing, bearing date the 14th of October 1738, whereby he "promised to pay to the said Edward Bates £200 at demand, &c., with lawful interest for the same; and for securing the repayment of the said money and the interest, it was thereby declared, that he had deposited in the hands of the said Edward Bates some mortgage deeds and securities of houses and lands in Greenwich belonging to him, and which he promised forthwith to convey, assign, and make over to the said Edward Bates for the purposes aforesaid "; that Dandy accordingly deposited the mortgage deeds; that, by the death of Alexander Dyer, Sarah Dandy became surviving administratrix to John Dyer, "whereby all the effects of John Dyer not before aliened were vested in the said Sarah Dandy, in trust for her husband, William Dandy"; that Dandy died, without having repaid the money which he had borrowed from Bates, and that Elton and Snee had taken out administration to him. The prayer was, that Elton and Snee might pay to the Plaintiffs all the money due from William Dandy, they offering to deliver up the securities deposited with them; or otherwise that Sarah Dandy might assign to the Plaintiffs the mortgage term, and William Dyer, the mortgage in fee.

Sarah Dandy, by her answer, admitted the material allegations of the bill, and particularly," that, in settling and adjusting the accounts of the personal estate of John Dyer on the 31st of January 1737, in the lifetime of her late husband, it was agreed, that the said mortgages, and the interest thereon, should remain for the benefit of the said William Dandy and her the Defendant, as part of her share of the residuum of John Dyer's personal estate, and that the mortgage deeds were delivered over by Alexander Dyer into the hands of the Defendant's late husband upon the settling the said account, and in pursuance of the agreement before mentioned." In a subsequent passage, she insisted" that she ought not to be obliged to assign the mortgage made by Frew, and that William Dyer should not be obliged to assign the mortgage made by Parker, in regard she, the Defendant, was left wholly destitute of any provision or subsistence from her late husband, and that her right to the mortgages was not derived from him, and she was advised that she was entitled to the sole benefit thereof."

Dandy's administrators alleged that he died insolvent; and they insisted" that the right and interest in the mortgages had been wholly vested in Dandy alone, at least in equity, and was part of his personal estate."

The executrix of Lawrence Dyer admitted that the accounts of John Dyer's estate was settled in the manner alleged by the Plaintiffs; that the mortgages were allotted to William Dandy and his wife; and that the mortgage deeds were delivered up to William Dandy.

William Dyer submitted to act as the Court should direct.

The decree, after directing an account of what was due to the Plaintiffs for their principal, interest, and costs, and for the costs of William Dyer, which were to be paid in the first instance by them, orders,

"That, upon payment by Sarah Dandy of what shall be found due to them, within six months from the date of the report, William Dyer, the heir at law of John Dyer, and executor of Alexander Dyer, do join in an assignment of the said two original mortgages to Sarah Dandy, or to whom she shall direct; and the Plaintiffs are to deliver up to her all the deeds and writings in their custody relating to the said original mortgages; but in default of payment, that she shall stand absolutely debarred and foreclosed of all right, title, and equity of redemption in the premises; and in that case, that Sarah Dandy and William Dyer do join in an assignment of the said original mortgages to the Plaintiffs; but in case she shall redeem the Plaintiffs, it is declared that she shall be entitled to the whole principal and interest due on the said two original mortgages."

The bill was dismissed with costs as against Anne Dyer, and, as against Elton and Snee, without costs. Reg. Lib. 1740, A. 408, 409.

If Lord Hardwicke considered the two mortgages as choses in action of the wife reduced, in the estimation of the law, into possession during coverture, for what reason was the wife preferred to the personal representatives of the husband? If he considered them as choses in action of the wife not so reduced into possession, how came the mere assignment of the husband to prevail over her title by survivorship? In either view, the Plaintiffs called upon the Court, under a title derived from the husband, to give them possession of the wife's fund; and that wife was unprovided

for on what principle did their claim succeed against her equity to have a settlement ?

The right of Dandy and his wife to the two mortgages in specie, arose under the agreement of the parties. Looking at the allegations of the bill, and Sarah Dandy's admission, "that it was agreed that the mortgages should remain for the benefit of William Dandy and her, the Defendant," the arrangement may perhaps have been regarded as having had the effect of making the personal representatives of the testator trustees of the two mortgages, not for Sarah Dandy alone, and for her husband only in her right, but for her husband and her jointly, so as to vest in him an equitable interest in his own right. As to interests given to the husband and wife jointly, see Vin. Abr. Baron and Feme, D, pl. 1, 2; F, pl. 1; B, a, pl. 1-8. 2 P. Wms. 197. 2 Vern. 683.

(9) In an anonymous case, 2 Vern. 707, a person indebted to the wife by bond, having become bankrupt, the husband claimed the debt, and paid the contribution money, but died before any dividend was made; it was held that the debt survived to the wife. See also Bowman v. Corie, 2 Vern. 180.

(10) In Burnett v. Kinaston, as reported in Freeman, 241, the Lord Keeper says, "If the husband assigns over a bond due to the wife, this will not bind her if she survives." In the report of the same case in Precedents in Chancery, 121, the language of the Lord Keeper is still more explicit: "If a husband assigns a bond of his wife for a valuable consideration, this assignment will not bind the wife if she survives." See also Precedents in Chancery, 419.

(11) 2 Vern. 402. The same case is reported at greater length in Freeman, Ca. Cha. 240, and Prec. Ch. 118. The instrument executed by the husband appears to have been merely articles of agreement, that the money should be laid out in lands to be settled to certain uses. The husband survived, and took out administration to his wife; and yet the administrator de bonis non of the wife was preferred to those claiming under the husband's will. In Humphrey v. Bullen, 1 Atk. 458, the administrator de bonis non of the wife was held to be a trustee of her chose in action for the personal representatives of a husband, who survived her, but died before he reduced it into possession.

(12) There are two recent decisions of the Vice-Chancellor on questions arising out of assignments by the husband of the wife's personal chattel. In Elliott v. Cordell (5 Mad. 149), the husband and wife assigned for valuable consideration to a purchaser, the dividends of a sum of stock bequeathed to her during her life; and some time afterwards the husband became bankrupt. The Vice-Chancellor was of opinion, that the wife, though without any means of support for herself or her children, was not entitled in equity to a provision out of the dividends of the stock, in opposition to the rights of the particular assignee for valuable consideration.

As the husband was not dead, it was unnecessary in this case to consider what would be the effect, if the wife survived him, of his assignment in passing a right to the dividends which should accrue due after his death.

In Stamper v. Barker (5 Mad. 157), the wife had a contingent reversionary interest in a sum of long annuities, and a vested reversionary interest in a sum of 3 per cent. stock. The husband and wife agreed to separate; and, on the occasion of their separation, they executed a deed, by which they assigned both species of property to trustees, upon trust, as to one moiety of each fund, for the husband absolutely, and, as to the other moiety, for the separate use of the wife absolutely. The husband, by his will, disposed of that moiety of the long annuities and 3 per cent. stock, of which the trust had been declared for him, and died, leaving his wife surviving. The reversionary interests having afterwards fallen into possession, the ViceChancellor held, that the wife's title by survivorship to the whole fund was not affected by the deed.

[72] LECHMERE v. BRAZIER. Rolls. Jan. 20, 1826.

Practice of the offices of the accountant-general and registrar with respect to the payment of money. In a creditor's suit instituted by simple contract creditors, in which the assets, after the payment of the costs, being insufficient for the discharge of the specialty debts, are apportioned among the specialty creditors; these specialty creditors are entitled, without contributing to the extra costs of the Plaintiffs, to the use of the order for the payment of the money, and of the report founded upon it, so as to enable them to get the fund out of court.

The bill was filed by simple contract creditors of Samuel Brazier, deceased, on behalf of themselves and all other his creditors who should contribute to the expences of the suit, against his personal representative, his infant heir at law, and a mortgagee of his real estate. It charged that Samuel Brazier was a trader at the time of his death, and prayed an administration of his assets, and a sale of his real estate for the payment of his debts.

pur

A decree was made, under which a sale of the real estate took place; but, in consequence of a defect in the proof of Brazier being at the time of his death a trader subject to the bankrupt laws, it became necessary to rehear the cause, and the chaser was discharged from his contract. (2 Jac. & Walk. 287.) Finally, there was a decree for the administration of the assets and for the sale of the estate, under which a sale was effected, and the money brought into court. A report was then obtained, from which it appeared, that the deceased was indebted upon bond to Richard Amphlett in a sum of £1082, 14s., and to Joseph Hodges, as surviving executor of James Brazier, in the sum of £783, and that they were his only specialty creditors; and it was also found, that, after the payment of the costs, the assets would be insufficient to discharge these two specialty debts. The consequence was, that, by an order dated the 17th February 1825, providing for the taxation and payment of the costs of all the parties (those of the Defendants being to be taxed as between solicitor and client), it was directed, that the Master [73] should apportion the residue of the fund in court among the creditors named in the schedule to his former report in a due course of administration, and that what the Master should so apportion should be paid to such creditors respectively, or to the legal personal representatives of such of them as should be dead.

The Master, by his report dated the 1st of August 1825, after certifying that he had taxed the costs of the Plaintiffs at £503, 3s. and those of the Defendants at nearly £800, found, that the residue of the fund in court amounted only to £934, 5s. 6d., which, being apportioned between Amphlett and Hodges in proportion to the amount of their respective debts, gave to the former £542, 3s. 6d. as the dividend which he was to receive, and to the latter, £392, 2s. The costs having been paid, application was made on behalf of Amphlett and Hodges to the solicitor of the plaintiffs, that the order and the office copy of the report might be produced to the accountant-general and the registrar, so that the cheques for the sums allotted to these creditors might be delivered out and passed through the requisite forms. The answer made to this request was, that the costs of the plaintiffs, as between solicitor and client, amounted to £756, 7s.; that the costs, which had been paid under the order of the Court, being taxed as between party and party, amounted only to £503, 3s. ; that the difference of £253, 4s. were extra costs, which Amphlett and Hodges, before they could have the fund paid over to them, must discharge in proportion to the sum each was to receive; and that till these extra costs were paid, he, the solicitor would not produce the order or office copy of the report.

The creditors then applied to the accountant-general to grant them cheques in the usual form, upon their leaving with him an office copy of the order, and a fresh [74] office copy of the report. He, however, declined to do so: and, as a reason for his refusal, stated, that, in signing the cheques, he had already, according to the practice of his office, signed his initials on the margin of the plaintiffs' office copy of the report opposite to the sums reported due, and to sign his initials on a fresh office copy would be contrary to the established course of proceeding, and would expose him to the error of delivering out second cheques for the same sums, if ever the plaintiffs' office copy should be produced; that the only case, in which the established practice of the office was ever deviated from, was, where it was clearly

shown that the office copy, which had been marked with his initials, had been actually lost; and that he had received notice from the Plaintiffs' solicitor of his having a claim on the fund in court for extra costs beyond those which had been paid.

Upon this, Amphlett and the administrator of Hodges presented a petition, setting forth these circumstances, and praying that the solicitor of the Plaintiffs might be directed to produce the order and office copy of the report in the office of the accountant-general, and that the petitioners might have the use of such order and office copy to enable them to pass the cheques for the sums due to them through the different offices.

Mr. Knight, in support of the petition,(1) argued, that the petitioners, having a right to the fund, had a right to the use of those documents, without the production of which it could not be gotten out of court; that the solicitor of the Plaintiffs ought to seek his extra costs [75] from his own clients; that he could have no lien on a fund belonging to other persons for any costs beyond those which he had already been allowed; and that the suit had been most mischievous to the specialty creditors, who, by reason of the insufficiency of the assets for the payment of their debts, had not only contributed to, but had in truth borne the whole expence of the proceedings, and had been the sole sufferers by all the blunders which the Plaintiffs had committed.

Mr. Shadwell and Mr. Koe, on the other hand, contended, that, as the petitioners took away the whole fruit of the suit, it was unreasonable that they should throw the extra costs, beyond those which were allowed as between party and party, upon the Plaintiffs, who were to receive nothing; that the solicitor had, for the balance due to him, a lien upon all the papers, and among the rest, upon this order and office copy of the report, which would prevent his own clients from calling on him to produce them without providing for the payment of the extra costs due to him ; that creditors who had proved under the decree could not, in this respect, be in a better situation than the creditors who had conducted the suit; and that no creditor was entitled to payment of his debt, till he had contributed to the expences of the suit, that is, to the expences properly incurred in the conduct of it, and not merely to such costs as are allowed between party and party.

June 8, [1826]. The Master of the Rolls (Lord Gifford). The solicitors for the plaintiffs took an office copy of the order for the payment of the creditors, and of the report founded on that order. The course of practice, with respect to the mode in which creditors obtain payment of the sums reported due to them. I find to be the [76] following:-The order and the office copy of the report are presented to the accountant-general; he examines the report to see who are the creditors to whom the Master has found debts to be due, and what sums he has reported to be owing to each. He then draws cheques for the several sums, and writes his initials on the margin of the report, opposite to the sums, to indicate that such cheques have been drawn. Afterwards, the cheque, together with the order and the office copy of the report, are carried to the registrar, who, seeing by the initials of the accountant-general that cheques have been drawn for such and such sums, compares the cheque which is presented to him with the order and report, in order to ascertain whether it is drawn for the correct amount: he then countersigns the cheque, and puts his initials on the margin of the report. Unless the cheque is thus countersigned, payment of it cannot be obtained.

The suit was instituted by simple contract creditors on behalf of themselves and all other creditors of Samuel Brazier, who should contribute to the expences of the suit. The language of decrees in suits of this kind is: "That such creditors, not parties, as shall come in before the master to prove their debts, are, before they shall be admitted creditors, to contribute to the Plaintiffs their proportion of the expences of the suit, to be settled by the master." But I do not believe that there is any instance of such contribution being actually required: each creditor pays the expences incident to the proof of his own debt, and he usually pays nothing

more.

In this case, the costs of the Plaintiffs and Defendants have been taxed and paid out of the fund destined for these two specialty creditors, who, as events have turned [77] out, have, in point of fact, borne the whole taxed costs of the suit; for those costs have been taken out of the money in court, which now proves insufficient to pay the specialty debts due to the petitioners, and has been directed to be appor

tioned between them. They wish to have it paid over to them, and for that purpose they have applied to the solicitor of the Plaintiffs for the production of the order and the office copy of the report, which have been taken by him, and formed part of the costs for which he has been paid. The petition is inaccurate in supposing that it is necessary again to produce the order and report before the accountantgeneral; but that they should be produced to the registrar is essential; for it is only by the production of the order and the office copy of the report, that the registrar can ascertain, whether any cheque has been already issued for the amount of the debt. If he finds his own initials on the margin of the report, as well as those of the accountant-general, he knows that he has already countersigned a cheque for the sums; if his initials are not there, he knows that no cheque for the particular sum has been issued as yet. For that reason the production of the office copy of the report is never dispensed with, except upon clear evidence that it has been destroyed or lost.

The solicitor of the Plaintiffs refuses to produce the order and the office copy of the report, because, although he has received out of the fund the costs allowed by the course of the Court, he has a further demand for extra costs, in respect of which he has a lien on the papers in his hands; and he insists that he has a right to demand from the petitioners the whole of those extra costs, before they can call upon him to allow them the use of the order and office copy in question, or of any other of the documents to which his lien extends.

[78] The solicitor has been allowed for this order and this office copy in the costs which he has received; and these costs have been discharged, in fact, by the two specialty creditors. My opinion is, that, whatever lien he may have against his own clients the plaintiffs, he is bound to produce these papers for the benefit of the petitioners; and that they are entitled to an order that he shall produce them to the registrar, upon being paid his fees of attendance, so that they may be enabled to obtain payment of the fund.(2)

The order made on the petition was as follows

"His Lordship doth order that Mr. Coningsby Norbury, the solicitor for the Plaintiffs, or Messrs. Fladgate, Young, and Jackson, his agents, do produce the order bearing date the 17th day of February 1825, and the office copy of the Master's report bearing date the 1st day of August 1825, and leave the same with the accountantgeneral of this court; and do also produce the same before one of the deputy registers of this court, in order that a draft from the accountant-general of this court, for payment of the sum of £542, 3s. 6d., reported due to the said petitioner, Richard Amphlett, and also a draft for payment of the sum of £392, 2s. to the legal [79] personal representatives of James Brazier, deceased, may be made out, and signed by the said accountant-general, and countersigned by the said deputy register. And it is ordered, that the petitioners do pay to the said Mr. Coningsby Norbury, or to the said Messrs. Fladgate, Young, and Jackson, the fees that are usually paid for producing orders and reports upon such occasions."

July 4. From this order the Plaintiffs and their solicitor appealed; and, a motion being made before the Lord Chancellor to stay proceedings under the order of the Master of the Rolls, it was agreed that the argument of the motion should be considered as the hearing of the appeal.

Mr. Shadwell and Mr. Koe, for the appellants, insisted, that it was contrary to every principle, that creditors, who took the benefit of the decree, and by means of it possessed themselves of the whole fund, should not bear the costs properly incurred in the conduct of the suit. There might no doubt be some extra costs, with which it would be unreasonable to charge a third party, though the Plaintiffs might be justly answerable for them to their solicitor; but the question was, not whether the bond creditors were to bear the whole of the extra costs with which the solicitor would have a right to charge the Plaintiffs, but whether they ought not to bear such extra costs. as were properly incurred.

Mr. Knight contra. The suit and the decree were no favor to bond creditors, who could have satisfied their demands at law, without needing to apply to a court of equity; nor was it from choice that these bond creditors came in under the [80] decree; but the Court having taken possession of the assets, they had no other course open to them. They have suffered sufficiently by having borne all the taxed costs of a suit which has been most pernicious to them, and could scarcely, in any