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WRIGHT V. JONES.

M. R. February, 1822.

costs.

THE bill was to foreclose a mortgage. The defendant stated Answer of mortby his answer, that before the bill was filed he was desirous to gagor cannot be read against redeem, and that he had several times written to the plaintiff mortgagee on the subject of requesting him to appoint a time and place to receive his principal and interest; and that on one occasion he had tendered in bank notes a sum exceeding the amount due. The defendant had gone into no evidence, but it was submitted that the answer might be read, and that, under the circumstances set forth therein, the plaintiff ought not to have the costs of the suit. Sir Thomas Plumer, however, said that the case of mortgagee and mortgagor was an exception to the rule, which permits a defendant to have his answer read upon the question of costs. The policy of the Court was to promote advances of money upon mortgage; and a mortgagee had always his costs, unless he had been guilty of misconduct, or nothing was found due to him. If a mortgagee was to be deprived of his costs for misconduct, there must be proof of such misconduct. If he filed his bill of foreclosure when he had been wholly paid by receipt of the rents or otherwise, and he was for that reason not to have costs, there was the report of the Master showing that he was satisfied before he commenced his suit. In no instance did the Court refuse a mortgagee his costs upon the oath of the mortgagor, unsupported by any testimony. A similar rule was well known to apply, where it is sought to stop the payment of interest upon a mortgage. There must be a strict legal tender, and that must not only be sworn to by the answer, but made out by witnesses in the same manner as any other fact. [See what was said by Lord Hardwicke in Gammon v. Stone, 1 Vesey, sen. 339.]

HANSON V. NICHOLL.

THE plaintiff had been the solicitor of the defendant, and had also received and paid for him monies to a considerable amount. Various accounts were furnished and acquiesced in, and finally all the accounts were settled, and a mortgage was given by the defendant for the balance. A bill of foreclosure being filed by the plaintiff, the defendant filed a cross bill impeaching the settlement of accounts, and praying that, notwithstanding such settlement, an account might be taken of all transactions between the plaintiff and defendant. There was no evidence to sustain the particular allegations in the cross bill, and the defendant rested his opposition to a decree of foreclosure upon general principles applicable to the

M. R. November, 1827.

Mortgage taken by solicitor from

his client.

L. C. November, 1830.

The Master of the Rolls re

fuses to restore a cause to his

to the Lord

Chancellor.

relation between solicitor and client. Sir John Leach.-If there had not been a settlement of accounts between the plaintiff and the defendant before the plaintiff took his security, the Court most undoubtedly could not now permit him to foreclose consistently with the principles that have been alluded to. But here it appears that previously the accounts were fully taken between the parties, all the items of debit and credit having been specified and examined: and there is nothing before the Court to show that the investigation of the accounts was accompanied by any unfairness. The mortgage is for a balance actually due and ascertained. It is not a security for costs to be incurred in some continuing and future litigation; but such a security as is in no respects contrary to the policy of the Court. There was a consideration for it also, independently of the plaintiff's demand in respect of his costs, and what was coming to him by virtue of his other dealings with the defendant: as by taking the mortgage, the plaintiff waived the lien, which the law gave him upon his client's deeds and writings. The usual decree must be made for a foreclosure; and the cross bill must be dismissed.

COLLINS V. PRICE.

Ar the Rolls, several causes having been struck out, this cause came on unexpectedly, and the plaintiff's solicitor being incapacitated from attending to it by severe illness, the bill was dispaper. Appeal missed with costs upon production of an affidavit of service of the subpoena to hear judgment. An application to Sir John Leach, that the cause might be restored to the paper, having been unsuccessful, was renewed before the Lord Chancellor; when it was submitted, that it might be inexpedient for his Lordship to interfere in applications of this nature: especially as the plaintiff was not without remedy, as he might, when the order dismissing the bill should be passed and entered, have that order reheard by the Lord Chancellor. Lord Lyndhurst, nevertheless, directed the cause to be restored to the Master of the Rolls' paper. [See the note, ante, page 474.]

L. C.

December, 1830.

Practice as to

amending a bill, a plaintiff being made a defend

ant, in order

that he may be examined as a witness.

WARDE v. Warde.

LORD BROUGHAM. It is stated that, according to the old prac tice, an order to amend the bill by striking out the name of a plaintiff and making him a defendant, with a view to taking his evidence upon some point, could only be obtained by consent. For many years past, however, it should seem that orders of this

kind have been not unfrequent. But there must be satisfactory

ground for the application: as, for instance, that the evidence of the co-plaintiff is really wanted in the cause,-the Court should see that, and that such circumstance could not well have been known when the bill was prepared: security too for the costs up to the time of the amendment must be given, to be approved of by the Master. The retiring plaintiff is liable to the defendants for those costs, and they are entitled to have some security substituted for such liability. Of course, care must be taken so to manage the matter, that the party will be a competent witness. In many cases there can be no objection that the defendants should consent to a co-plaintiff being examined as a witness and that is a saving of time and expense.

BAILEY V. JACKSON.

V. C. January, 1827.

Reading the answer of a feme

separate estate.

THE bill was filed by the creditor of a married woman to enforce payment of a debt out of property settled to her separate coverte against use and at the hearing it appeared that the plaintiff had no her in matters evidence of the existence of any such property, except some touching her passages in her answer. It was contended on her behalf, that these passages could not be read as her admission, and that the plaintiff ought to have proved that there was something upon which his demand could attach. Sir John Leach said, that as a feme coverte could by contract bind property held to her separate use as she could dispose of it as she thought fit-it would be very singular if she was not competent to admit that there was property over which she possessed this power; that the admission, however, would have no other effect than to render proof on the plaintiff's part prior to the hearing unnecessary, as the Court must necessarily inquire into the particulars of the property and the trusts upon which it was held, in order to see how far it was liable to the plaintiff's demand. His Honor added, that whether the answer of a feme coverte could be read against her to any further extent in matters touching her separate estate, it was not requisite then to consider.

ATTORNEY-GENERAL V. LECHMERE.

a

a

V. C. January, 1825.

Where an inspected a cha

formation re

rity in which a parish was interested, some of

THE information was filed for regulating a charity, in which parish was mainly interested, and there had been different proceedings in the Master's office. Some of the inhabitants of the parish, being dissatisfied with these proceedings, now presented petition praying various directions, which they conceived would render the charity more effective, when an objection was taken, not being parties, presented a that the petitioners were not parties to the information. Sir petition in the John Leach said he could not entertain such a petition; that the cause.

the inhabitants,

V.C.

November, 1824. Attachment pending an abatement.

V.C.

February, 1825.

Costs of bank

ant to a suit

interests of the charity and the parish were represented by the Attorney-General, to whom the petitioners might make any representations they deemed worthy of attention: that were such a petition by strangers to the record to be allowed, it would open a door to interference of all kinds: still there were cases where the Court would permit strangers to come in and watch the proceedings, and even assist in them: but then there must be previous permission obtained for that purpose; and that permission would only be given upon a special case being made, and proper precaution being taken to prevent unnecessary expense.

GIBBS v. CHURTON.

ONE of the plaintiffs died, and it being doubtful what interest his executors had in the matters in litigation, and they showing no disposition to become co-plaintiffs in any bill of revivor, none was filed; and there were no proceedings in the suit until the surviving plaintiffs issued an attachment against one of the defendants for some default. Upon a motion calling in question the regularity of that attachment, Sir John Leach said that the surviving plaintiffs ought to be prepared to show that the representatives of the deceased plaintiff had no interest in the suit; that if they had any interest, however small, they must be brought before the Court, either as co-plaintiffs or as defendants, for the purpose of asserting or disclaiming such interest; that if they released, there should be a supplemental bill bringing forward that fact; that it mattered not whether they were to be associated as co-plaintiffs, or whether they were to be made defendants, in any bill of revivor that might be filed; that in either case, the issuing of an attachment in the absence of persons whose rights that process of contempt was in part meant to enforce, was at variance with the practice of the Court; and that he could not imagine any case in which the issuing of an attachment pending an abatement could be justified, unless, perhaps, when the rights of parties had been declared and it was a proceeding between those parties only, and strictly limited to the enforcement of their rights, and in which no one else but themselves had any concern. [See Jones v. Williams, ante, p. 488.]

GREEN V. OTTE.

THE bill was filed by the assignees of a bankrupt, and sought rupt, a defend to recover a legacy left to the bankrupt's wife. The wife insisted that the legacy ought to be settled upon her, and she succeeded signees and his in establishing her right to a settlement of a considerable part of it. The bankrupt was, of course, a defendant, and the question

between his as

wife.

was as to his costs. Sir John Leach said, a bankrupt ought not to be put to expense by litigation between his assignees and his wife; and although the present defendant appeared to have illtreated his wife in a gross manner, the Court must nevertheless give him his costs.

STRANGE v. DASHWOOD.

V. C. June, 1825.

ONE of the plaintiffs being the attesting witness to a deed, A plaintiff atwhich it was requisite for the defendant to prove, the latter testing witness to a deed, which moved for an order that he might be at liberty to examine such defendant must plaintiff as a witness. Sir John Leach.-You may take your prove. order if you please, the plaintiff consenting to be examined; but that is not your right course; it will be sufficient evidence of the execution of the deed if you prove the handwriting of the plaintiff; that is the mode at common law.

WRIGHT V. MASTERTON.

poor

V. C.

November, 1826.

Contribution

between churchwardens, overseers and trustees of poorrate, employing attornies upon an illegal reso. lution of the

majority of a

THE majority of the vestry of a parish came to a resolution to prosecute certain persons, and that the churchwardens, overseers and trustees of the poor-rate should take the necessary steps to that end. There was an Act of Parliament giving certain powers to the vestry, but none enabling it to pass such a resolution as this. The churchwardens, overseers and trustees of the rate nevertheless signed a memorandum authorizing an agent to employ attornies in the above prosecution. The bill of costs of vestry. the attornies not being paid, they brought an action against the plaintiff, who was one of the persons signing the memorandum, and recovered the amount. The present bill was filed against the other persons, who signed the memorandum, for a contribution; and the principal objection urged against it was, that the majority of the vestry were the persons, who occasioned the expense, and who were alone properly liable: the churchwardens, overseers and trustees of the poor-rate having manifestly put their names to the memorandum in their official capacities. But Sir John Leach said, that the resolution of the majority of the vestry was plainly illegal, and could confer no authority on the churchwardens, overseers and trustees of the poor-rate to take the proceedings they did, and they must therefore be considered as signing the memorandum, for the employment of the attornies, as private individuals only; that it was their business to ascertain whether what they were doing was so within the scope of their several duties, that they would be entitled to have recourse to the parish at large for their indemnity; that having committed

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