KENDALL v. BECKETT. Lincoln's Inn Hall. Feb. 18, 1826.

A Plaintiff, after allowing more than three terms to elapse without taking any proceedings, amended his bill under an order for that purpose, and amended also the Defendant's office copy: an order, dismissing the bill for want of prosecution, obtained as of course on the usual certificate within six or seven days from the amendment of the record, was discharged as irregular.

In this cause the answers of four of the Defendants were filed on or before the 17th of August 1824. The Plaintiff, on the 15th of May 1825, obtained an order that he might be at liberty to amend his bill, upon the terms of amending the office copies of the Defendants, and of requiring no further answers from the Defendants who had already answered. On the 21st of May, that order was served on the agents of the clerks in court of the Defendants. On the 1st of October or the 1st of November, the Plaintiff amended his bill; and, his clerk in court having called for the office copies of the Defendants, the solicitor of the four, who had answered on or before the 17th of August 1824, delivered his office copy for the purpose of being amended. It was accordingly amended on the 3d of November, and was delivered back.

On the 7th of November, those four Defendants, upon a certificate from the clerk in court, that it appeared by his book that no proceedings had been taken in the [153] cause since the 17th of August (1) 1824, obtained, before the ViceChancellor, the usual order of course, dismissing the bill against them for want of prosecution.

Mr. Agar now moved to discharge that order for irregularity.

Mr. Skirrow, contra.

The Lord Chancellor [Eldon]. The order to amend having been served, the Defendants could not dismiss the bill for want of prosecution, without first moving that the amendments should be made within a limited time, or the order be discharged. (2) In this case the Plaintiff had amended; and it appears that he had obtained possession of the Defendant's office copy of the bill for the purpose of amending it. Now, the Defendants, by delivering to him their office copy, must be considered as having waived any right which they might otherwise have had to dismiss the bill.

The order of dismissal was discharged with costs.(3)

(1) Adamson v. Blackstock, 1 Sim. & Stu. 118. An amended bill is not to be considered as on the file for the purpose of issuing an attachment, before an entry is made of the amendments in the six clerks' book.

(2) Mr. Hinde says, "When Plaintiff hath obtained an order to amend after answer, and neglects so to do, Defendant may, after three terms, move to discharge the order, and, at the same time, move to dismiss the bill in the usual manner." Hinde, p. 23.

(3) In Cooke v. Davies [T. & R. 309], no proceedings having been taken since the 4th of February 1822, save only that the Plaintiff had, on the 21st of June, obtained an order to amend, the Defendant, on the 10th of April 1823, moved to discharge that order, and to dismiss the bill for want of prosecution; but the Plaintiff met the motion by undertaking to amend within ten days. Accordingly, he amended his bill within the limited time, and also the Defendant's office copy; but he neither served a subpoena nor filed a replication to the former answer. On the 13th of June, when much more than eight days had elapsed from the time when the amendments were made (Lloyd v. Lloyd, 2 Cox, 431), the Defendant, by an order of course, dismissed the bill for want of prosecution. On the 25th of July the Plaintiff moved to discharge that order for irregularity, on the ground that the mere amending the bill and the Defendant's office copy was such a proceeding in the cause as entitled the party to retain his bill for three terms.

The point was argued at considerable length, by Mr. Heald for the Plaintiff, and by Mr. G. Richards for the Defendant.

The Lord Chancellor was of opinion that the order was regular, but directed the registrar to inquire into the practice.

July 30th. In conformity to the registrar's statement of the practice, the Lord

Chancellor decided, that the amendment of the bill was not such a proceeding as would retain a suit in court, and that unless a subpoena was issued, or a replication filed, the Defendant was entitled to dismiss the bill.

[154] The President and Scholars of the College of SAINT MARY MAGDALEN, in the University of OXFORD, Plaintiffs; CONINGSBY WALDO SIBTHORP, and SUSANNA SIBTHORP, Defendants. Lincoln's Inn Hall. Feb. 22, [1826].

Upon the hearing of a petition of appeal presented by the Defendants, leave was given to the Plaintiffs to amend their bill by making it either a bill and information, or an information.

On the argument of the appeal presented by the Defendants from the decree made by the Vice-Chancellor in this cause (the cause was heard on bill and answer. Ex relatione), the Lord Chancellor was of opinion that the Attorney-General ought to have been a party to the suit, and that the record ought to have been in the form either of an information, or of a bill and information.

[155] Accordingly His Lordship made the following order:

Upon hearing what was alleged by the counsel on both sides, His Lordship doth order, that the said petition of appeal do stand over, with liberty for the Plaintiffs to amend their bill, by making the same a bill and information, or an information only, as they shall be advised."

HARMER v. HARRIS. Rolls. Feb. 20, [1826].

[Observed upon, Watson v. Row, 1874, L. R. 18 Eq. 680. See Smith v. Dale, 1881, 18 Ch. D. 518; In re Basham, 1883, 23 Ch. D. 199.]

In a suit for the administration of assets, a debtor to the estate, who is entitled to have his costs of suit out of the fund, will not be allowed to receive payment of them, while his debt continues unsatisfied; but the costs due to him will be set off pro tanto against the debt due from him. Where the same solicitor acts for an executor and other co-defendants, the estate will be charged, in respect of the executor's costs, only with that proportion of the sum due to the solicitor from his clients, which the executor, as between himself and the co-defendants, ought to bear.

This was a suit for the administration of a testator's assets, in which, according to the common course, all the parties were entitled to have their costs out of the fund. But the Plaintiffs were reported by the Master to have been indebted to the testator in a sum which they had not yet paid; and as they were not in solvent circumstances, the question arose at the hearing on further directions, whether they should receive their costs out of the estate, or should only retain them out of the debt which they owed to it.

Some of the Defendants were in a similar situation.

Mr. Sugden for the Plaintiffs. The suit was necessary; for without it the fund could not have been ascertained and secured. The costs of the suit, therefore, are the costs of administering the assets, and ought to be the first charge upon them. Those who are interested in the residue have, no doubt, a right to insist on any equities which they may have against others who are also interested in it; and upon [156] that principle the Plaintiffs cannot claim to receive any portion of the residue, till they have satisfied the debt which they owe to the estate. But the equities affecting the residue do not come into operation, till the costs have been paid; for till they are paid, a clear residue does not exist and, therefore, the right of the Plaintiffs to receive their costs in the first instance, cannot be affected by the circumstance, that they are insolvent debtors to the estate. To set off the debt against the costs in such cases would be a great hardship upon solicitors, who, trusting to the fund for ultimate compensation, undertake suits like this and conduct them in a proper

manner.

Mr. West, contra. The observations of the Lord Chancellor in Taylor v. Popham (15 Ves. 75), and in Ex parte Rhodes (15 Ves. 451), show, that the claim of these Plaintiffs is inconsistent with the established doctrine of the Court." Where," says Lord Eldon, " in a cause comprising a great number of questions, costs may

the

ultimately be due to both parties, and sums to be paid as duties to each, the demands of both shall be arranged so as to do justice between them; and the lien of the solicitor is only as to those costs, which, upon the whole, taken together, one party can claim from the other." "The practice of this Court does not interpose the lien farther than upon the clear balance, which is the result of the equity between the parties." Here the Plaintiffs are entitled to costs out of the estate; on the other hand, they are indebted to the estate in a sum of £170. Under these circumstances, clear equity is not that the estate shall pay them their costs, and yet, by reason of their insol-[157]-vency, lose the debt-but that the costs due to them shall be set off pro tanto against the debt due from them. Those who are debtors to the estate may retain their costs in diminution of their debt, but cannot claim to have any payment made to them. Such is the equity between the parties; and that equity cannot be disturbed by the lien of the solicitor.

Mr. Rose, Mr. Cooper, and Mr. Moore, for other parties.

The Master of the Rolls [Lord Gifford]. The Plaintiffs are indebted to this testator's estate in upwards of £170; and they ask, before they have paid in that sum, that they may receive the costs, to which they are entitled, out of the fund in Court. If I were to grant this demand, I should be going far beyond what any decided case authorizes me to do. These parties cannot receive their costs, while they continue debtors to the estate. The lien of the solicitor does not alter the question. Solicitors, when they undertake the prosecution of causes, look, or ought to look, for reimbursement, to the personal responsibility of their clients, as well as to the fund which is to be administered in the suit.

It afterwards appeared, that the same solicitor had acted in the suit for several Defendants, of whom one was an executor, entitled to be paid his costs, and the others were debtors to the estate and a question arose, whether, under the description of "costs of the executor," the solicitor would have a right to receive out of the fund the whole amount of charges which had been incurred for the executor jointly along with some of the [158] co-defendants, in the same manner as if he had appeared for the executor alone.

The Master of the Rolls [Lord Gifford]. Much of the costs may have been incurred for these Defendants jointly; the expence, for instance, of office copies taken for their common use. The costs of the executor are only that proportion of the costs due to the solicitor, with which the latter, as between the co-defendants for whom he acted, could have charged the executor.

GAIT . OSBALDESTON. Lincoln's Inn Hall. March 1, [1826].

A Plaintiff, claiming as heir at law of her mother, files a bill for discovery, and for an injunction to restrain the Defendant from setting up outstanding terms: a plea of a fine levied by the mother and her husband, of a deed declaring the uses of the fine to the husband in fee, and of a conveyance for valuable consideration by the husband to the person under whom the Defendants are stated in the bill to derive their alleged title, is a good defence both to the discovery and to the relief.

The bill, filed by David Gait and Mary his wife, stated, that William Hayes, being seised of certain freehold lands, died in 1745, intestate; that Mary Hayes, his only child and heiress at law, who intermarried with Joseph White, since deceased, also died intestate, and seised of or entitled to the lands in fee simple; that thereupon the lands descended to her only child, the Plaintiff Mary, who was the heiress at law both of Mary White and of William Hayes; that William Penney disseised her, and got possession of the title deeds; and that, after his death, the Defendants entered into possession of the property under an alleged title derived from him. It charged that Mary White never disposed of her estate and interest in the premises, and that the Defendants threatened to avail themselves of an outstanding term, as a defence to an action which the Plaintiffs had instituted. The prayer was for a discovery in aid of the proceedings at law, and an injunction to [159] restrain the Defendants from setting up any outstanding terms in the action.

A plea (the plea had been amended by an order dated the 2d of August 1820) was put in to the whole of the discovery and relief prayed by the bill. The plea

stated, in effect, that, in Trinity term 1764, Joseph White and Mary his wife duly levied a fine of certain hereditaments, of which the lands in question were parcel; that it was declared by a deed executed by them both, that the fine should enure to the use of such persons and for such estates as Joseph White should by deed or will appoint, and, for want of such appointment, to the use of Joseph White in fee; that, in 1765, Joseph White did, for valuable consideration, appoint and convey the premises to William Penney, his heirs and assigns; and that William Penney thenceforth, down to the time of his death, and the several persons entitled under him down to the filing of the bill, had been in quiet possession of the lands which the Plaintiffs claimed.

The Vice-Chancellor overruled the plea, on the ground, it was stated, that a plea of no legal title was not a defence to a bill which prayed discovery in aid of an alleged legal title

The Defendants appealed. (5 Mad. 428.)

Mr. Horne and Mr. Sidebottom, for the appeal.

Mr. Rose, contra.

The Lord Chancellor [Eldon] allowed the plea.

[160] OSBALDESTON . ASKEW. Lincoln's Inn Hall. March 1, 1826.

[See Minton v. Kerwood, 1866, L. R. 1 Eq. 455.]

2 Jac. & Walk. 539.-On a reference of title in a suit by a vendor for the specific performance of a contract for the purchase of lands, the mere fact that a suit has been subsequently instituted and is pending, in which part of the lands are claimed adversely to the vendor, is not a sufficient ground for reporting that a good title cannot be made.

The persons, who were Defendants in the last-mentioned cause of Gait v. Osbaldeston, instituted this suit against Askew, for the specific performance of a contract, by which he had agreed to purchase a certain estate, consisting of about seventy-six acres; nine acres of which were parcel of the lands claimed by Mr. and Mrs. Gait in the other cause.

The bill was filed in 1813. In 1818 a decree was pronounced, referring it to the Master to inquire, whether a good title could be made to the premises; and if it could, when it first appeared that a good title could be made. In November 1819, Mr. and Mrs. Gait filed their bill in November 1820, the Vice-Chancellor overruled the plea; and, in the following January, the petition of appeal against that decision. was presented.

By a report bearing date on the 29th of June 1824, the Master stated, that, "upon perusal of an abstract of title to the premises, which had been laid before him on behalf of the Plaintiffs, and it being alleged by the solicitor for the Defendant, and admitted by the solicitor for the Plaintiffs, that a suit had been instituted against them by the heir at law of Mary White, late wife of Joseph White, respectively named in the abstract of title, and was then pending in this court, for the recovery of the lands purchased of Joseph White, as in the abstract mentioned; and the same being part of the premises in [161] question in the cause, he was of opinion that a good title could not be made to those premises."

To this report four exceptions were taken. The first exception insisted, that the Master ought to have certified that a good title could be made; the third, that he ought to have certified that the suit of Mr. and Mrs. Gait was continued and prosecuted at the instance of, and in collusion with the Defendant Askew; and the second and fourth, that he ought to have certified that the suit of David Gait and Mary his wife related only to about nine acres of land, which were not necessary to the convenient occupation of the residue of the premises, and that he ought to have taken notice of an affidavit produced before him to establish that fact. Mr. Horne and Mr. Sidebottom, for the exceptions.

Mr. Sugden and Mr. Roupell, contra.

The Lord Chancellor [Eldon]. What the Master has here stated, as his ground for objecting to the whole title, is not of such a kind, that the Court can proceed upon it without further inquiry. If, in a suit for the specific performance of a

contract for the purchase of lands, the mere fact of the pendency of another suit, instituted during the progress of the original suit, and relating to some part of the property contracted to be sold, is to be a sufficient reason for stating that a good title cannot be made, I know not how a vendor can hope ever to get to a final decree. In the present case the objection to the title is, that a suit is pending, in which a Mr. and Mrs. Gait set up a claim to about nine acres, part of the seventy-six acres which are the subject of the contract in question: and [162] the Master has said. "inasmuch as that suit is depending, be it worth much or be it worth little, be it complicated or be it simple, be the claim advanced in it well founded or not,—I am authorized in stating, that a title to the premises cannot be made."

From the accidental circumstance of my having heard the appeal upon the validity of the plea which was put in to the bill of Mr. and Mrs. Gait, it happens that I am acquainted with the circumstances and nature of their claim. The present vendor derives his title to the nine acres, on which the difficulty arises, from Joseph White; and the objection made by the bill of Mr. and Mrs. Gait is, that these nine acres were the estate, not of Joseph White, but of his wife; that her right was never barred by fine; and that it descended from her to Mrs. Gait, her heir at law. And, undoubtedly, if the conveyance from Mrs. White were made merely by lease and release, or by any other instrument, not being an assurance of record, or if a fine were levied, but the uses of it were not declared so as to take the property out of her, the title would still be in her and her heirs. But the abstract of title, which has been carried in before the Master, must state a purchase of some kind or other by that Joseph White; and if it appears that the purchase, by which he acquired the estate, was a purchase made by a fine which the wife levied, and of which the uses were properly declared, is there not a complete answer to the objection? Now, in what a situation would the suitor be, if it were to turn out that there is, in the proceedings on the inquiry into title in the Master's office, a direct answer (and an answer, too, which cannot be affected by any mistake) to the demand set up in that suit, the pendency of which is supposed by this report to be a decisive objection, rendering all further inquiry superfluous. Because a demand [163] is made in one proceeding in the court, shall the mere fact of the existence of such a demand, though in another proceeding of the same court there is or may be a satisfactory answer to it, deprive a vendor of his equitable right to enforce the performance of a contract of sale?

In this case, the Court runs no risk. The objection is, that a suit is pending. in which part of the property is claimed by the heir at law of a married woman, whose estate it formerly was the answer is, that the married woman conveyed, by fine duly levied, to the persons under whom the vendor derives his title. On such a point the Court and the Master cannot come to a different conclusion.

The right course for the Master to have pursued, would have been, to have stated, "that it had been alleged and admitted before him that there was a suit depending relative to part of the premises, which proceeded upon this ground, that the vendors could not make a title to themselves under Joseph White, because the lands had been the inheritance of Joseph White's wife, whose estate had never been taken out of her by a fine duly levied; that, nevertheless, it appeared before him, upon an accurate examination of what was stated in the abstract and of the record of the fine mentioned in it, that there was, by the duly levying of that fine, a complete answer to the demand raised in the pending suit; but that he submitted the matters to the Court."

With respect to the first exception, the Master must review his report.

The other exceptions must be overruled; for they relate to matters, of which the decree did not authorize the Master to take cognizance. It was not referred to [164] the Master to certify, whether the nine acres were material to the convenient occupation of the rest of the estate; neither had he any jurisdiction to consider, what equities, independently of the question of title, might arise out of the conduct of the parties. Suppose it were clear that Askew had procured Mr. and Mrs. Gait to prosecute their suit, for the purpose of baffling the vendors who were seeking to enforce against him his contract of purchase, what could the Master, on a reference of title, have to do with such circumstance? His business was to consider, whether the objections to the title were good-not, at whose instance, or from what motives, they were set up. What opinion the Court might entertain,