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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, 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

event, have been for their benefit. The demand of the Plaintiffs and their solicitor is, in truth, a demand against the assets which have been administered. If the estate had been solvent, the Plaintiffs would not have been entitled to receive from it more than taxed costs. Are they to throw a heavier burthen upon the fund, because it happens to be insufficient for the payment even of specialty debts ?

Mr. Shadwell in reply. It was impossible for the simple contract creditors to know what the state of the assets was; and it was only by the institution of a suit that they could secure a due administration of them. If persons who file such bills are to be exposed to the hazard of bearing personally a great part of the costs of those proceedings by which the assets are collected and administered, the consequence will be, that simple contract creditors, unless they choose to remain at the mercy of personal representatives, will be compelled to harass executors and administrators by innumerable actions at law.

The Lord Chancellor (Eldon). As the fund brought into court in a creditor's suit is, in part at least, the fund of all the creditors, and as the taxed costs are paid, before it is distributed among those who are entitled to it; the Plaintiffs and their solicitors receive in effect the contribution to which the form of the suit and of the decree gives them a right, without going through a formal process for that purpose. But I do not know of any instance, where Plain-[81]-tiff creditors have been allowed more than taxed costs; and the very circumstance, that applications for more than taxed costs have not been made, shows strongly what the habit of the court is. The present case no doubt presses with some hardship upon the plaintiffs ; but, I confess, I do not see how I can alter the order of the Master of the Rolls, to the prejudice of the bond creditors. These simple contract creditors have, by filing a bils, compelled the specialty creditors to come in under the decree ; and the whole costs of the suit have been thrown on a fund, out of which the specialty creditors could have satisfied their demands without the aid of a court of equity.

July 6. The Lord Chancellor (Eldon) stated, that, after a careful consideration of the petition, he saw no reason to alter the order of the Master of the Rolls.

However, at the request of the counsel for the Plaintiffs, he suspended his final decision, in order to give them an opportunity of inquiring, whether any authority could be found for the claim which they had set up.

July 7. Mr. Koe stated, that he could find no instance, in which Plaintiff creditors had been allowed any costs beyond the costs taxed as between party and party.

Accordingly, the petition of appeal was dismissed.

(1) As Joseph Hodges was a creditor only in his capacity of executor of James Brazier, there was a defect in the title of one of the petitioners, which prevented the Court from making any order in favor of him by name.

(2) In Shortley v. Selby (5 Mad. 447), which was a creditor's suit, the solicitor for the Plaintiff refused to attend at the accountant-general's office with the report, to enable the creditors to receive what was due to them, unless they would pay each his proportion of the expenses of the suit, including the extra costs. But the V.-C. held, that unless the Plaintiff calls for contribution, to be settled by the Master, before a creditor is admitted under the decree, he waives all claim to such contribution, and that it is the duty of the Plaintiff's solicitor to attend the accountant-general with the report, upon the application of every creditor, for the usual fee of 6s. 8d.

[82] FIELD v. Sowle. Rolls. Jan 26, 1826.

Commission Order to speed. It is of course, that a Plaintiff, even after the peremptory

order tospeed his cause, should have an order for a commission to examine witnesses, with liberty to execute the same in term time.

Upon the motion of the Defendant Sarah Sowle to dismiss the bill for want of prosecution, the Vice-Chancellor, on the 17th of March 1825, ordered that the Plaintiff should speed his cause. As no further proceedings had been taken in the suit, the same Defendant moved, on the 13th of June, that the bill might stand dismissed as against her; and, the Plaintiff's counsel having undertaken to speed the

In the 17her procee that the

the pain the 137ther procharch 182

cause peremptorily, the usual order was then made : “ That the Plaintiff do go to commission this vacation, give rule to pass publication in the next term, and set down the course for hearing in Hilary term, or in default thereof that the Plaintiff's bill do stand dismissed out of this Court, with costs, &c., as against the Defendant Sarah Sowle, without further motion."

On the 14th of June, the Plaintiff obtained, as of course, by petition at the Rolls, an order “ that the Plaintiff be at liberty to sue out a subpæna to rejoin, returnable immediately, and that service thereof on the Defendant's clerk in court be deemed good service on the Defendants, and that the Plaintiff have a commission for the examination of his witnesses, returnable without delay; and that the Defendant's clerk in court do, in four days next after notice hereof, join and strike commissioners' names with the Plaintiff's clerk in court, and in default thereof, that the Plaintiff have such commission directed to his own commissioner, with liberty to execute the same in term-time.”

[83] Mr. Wakefield moved, on behalf of Sarah Soule, that the order of the 14th of June might be discharged, with costs, for irregularity.

The Plaintiff, Mr. Wakefield argued, by taking an order for a commission to examine witnesses, with liberty to execute the same in term-time, had failed to comply with the terms imposed on them by the order of the 10th of June. The latter order was not an act emanating from the mere authority of the Court ; it was an order made in pursuance of the Plaintiff's express undertaking to comply with all the conditions specified in it-an undertaking into which the Plaintiff entered, as the sole means left him of preventing his bill from being that moment dismissed with costs. To keep his suit in court, therefore, it was necessary that he should have complied with those conditions most strictly and literally. One of the conditions was, that he should go to commission in the next vacation. Now that commission would necessarily be returned in Michaelmas term ; and by the general and long-established practice of the court, a commission cannot be executed in term-time, unless leave to do so be obtained. Therefore, as the order of the 10th of June did not give any such leave, the Plaintiff was bound to go to commission, and to execute the commission in the vacation ; and, consequently, by obtaining an order, which authorizes him to execute the commission during the following term, he has violated one of the conditions to which the Court, upon his own undertaking, tied him down.

The difference made by the introduction into the order of the words with liberty to execute the same in term-time" is not immaterial to a Defendant. Where the Plaintiff is obliged to execute the commission in the [84] vacation, a considerable interval must elapse between the close of the period during which he may examine witnesses and the passing of publication ; for he cannot examine after the last day of vacation, and the rule for passing publication will not expire till the end or near the end of the following term. Thus the Defendant has the benefit of an interval, during which he may enter into such evidence, or adopt such measures, as he may think expedient; while, at the same time, his adversary is precluded from supporting his case by further depositions. But this interval ceases to exist, if the commission may be executed in term-time; and, in that case, the Defendant loses what may be an important advantage.

The common form of the order for a commission does not contain the words * with liberty to execute the same in term-time"; and it is only at the special request of the party drawing up the order, that they are ever introduced. In ordinary cases, no doubt, the insertion of them upon the request of the party is regarded as a matter of course : but though such an indulgence is shown to suitors generally, it does not follow, that it will be extended, as a matter of right, to a plaintiff, who has so availed himself of every art of delay within his power, that the Court has at length interfered to place him under strict conditions. The whole object of the peremptory order is, to bind the plaintiff to do certain things within a certain time, in default of which his suit is dismissed. One of the restrictions imposed on him is, that he shall go to commission in the vacation ; which implies, that he shall not examine witnesses after the end of the vacation. How then can he be said to have complied with the order, if he takes out a commission which he may execute in the following term ?

[85] Mr. Tinney against the motion. Under the order of the 10th of June, it was the duty of the Plaintiff to go to commission in the following vacation, and


to give rule to pass publication before the end of Michaelmas term. All this he has done ; and he has, therefore, complied with every thing which the order prescribes. The insertion of the words “ with liberty to execute the same during term-time” is intended only to prevent an inconvenience which might otherwise arise. By an old rule of the Court, a party cannot go to commission during the term without the special leave of the Court ; and he cannot even prosecute in term-time a commission which he has begun to execute in the preceding vacation. Gilbert gives the reason of the rule : “No commission,” says that author, “ can be executed in term-time, unless by leave of the Court, or consent of the parties; for the commissioners being generally country attornies, it is more than probable they are in town attending the term on their other clients' affairs, and, consequently cannot attend upon the execution of the commission.” (Gilbert's Forum Romanum, pp. 135, 136.) The same principle, though with some modification in its operation, is acknowledged in the Court of Exchequer. “It is," says Fowler (Fowler's Exchequer Practice, vol. ii. p. 61, 2d edit.), “the established practice of the Court that no commission can be executed in term-time without leave of the Court; but where the execution of a commission is begun, before the term commences in which it is returnable, the commissioners may continue to examine witnesses under it till the second return of the term, which is the usual return of a commission to examine. But if the commission which issues in the vacation should, for want of time to exe-[86]-cute it, be made returnable the last day of the following term, or the last return of the term, an order must be obtained for leave to examine in term-time; and this is a motion of course." If the Plaintiff had taken the order for the commission without the words which are the ground of the present objection, and had begun to execute the commission in the vacation, he might, by a motion of course, have obtained leave to continue to execute it during the ensuing term : so that the whole of the alleged irregularity amounts to nothing more than this,--that the Plaintiff has obtained, as of course, an order consisting of various parts, all of which may with perfect regularity be included in one order, and to all of which he was entitled. No delay could possibly be occasioned ; for he remained, bound to give rule to pass publication within the prescribed time : and, if he had so availed himself of the liberty to execute the commission in term-time, as not to have given that rule, the condition of his undertaking would, undoubtedly, have been violated, and his bill must have stood dismissed. Indeed, the form of the order, instead of affording means of or pretexts for delay, enabled him to proceed with more dispatch than he otherwise would : for it put it in his power to have instantly sued out a commission in Trinity term, instead of waiting for the vacation.

The Master of the Rolls (Lord Gifford]. Such is the opinion of one of the most experienced registrars of the Court. He conceives, that the order, drawn up in this form, would have authorized the Plaintiff to have executed the commission in Trinity term.

Mr. Wakefield, in reply. This order would not have authorized the Plaintiff to have sued out a commission in Trinity term. The [87] theory of the practice is, that in general no commission is to be executed in term-time, because the country solicitors, who are the class of persons usually entrusted with the execution of commissions, are supposed to be then occupied in attending the Court upon the affairs of their clients. When, however, the execution of a commission has been begun, but not finished, during the vacation, leave will be given to proceed, during the term, with that which had been properly commenced at the fit season for such business. But the words giving that permission, will not enable a party to sue out a commission in the then current term. He is still required“ to go to commission in the vacation.” The insertion, therefore, of the objectionable words in the Plaintiff's order could not have enabled him to proceed with increased dispatch, even if dispatch, and not delay, had been his object.

The determination of that point, however, is not essential to the decision of the question before the Court. The argument for the Plaintiff assumes, that it was of course for him to prolong the time of executing the commission beyond the period fixed by the peremptory order, provided he did not thereby delay the giving rule to pass publication. Now, it is undoubtedly of course for parties, not bound down by terms, to obtain that indulgence : but is it, therefore, of course, that like favour should be shown to one upon whom special conditions have been imposed ? The

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