The testator left at his death his widow, two brothers, and three sisters, him surviving.

Under certain orders made in this suit, which was instituted for the administration of the testator's estate, the testator's residuary personal estate was converted into money, and the money was paid into court and invested in the funds, and it was declared that the widow was entitled to the income for her life.

During the lifetime of the widow a brother and sister died, leaving children.

Upon the death of the widow a petition was presented by the executors of the deceased brother and sister for the transfer to them of two-fifths of the fund in court.

Mr. F. Bayley, for one of the petitioners, contended that the expression "entitled," in the will, had reference to the death of the testator, and that the fund had vested in the brother and sister at the testator's death, and that the petitioners, therefore, were entitled to the part of the fund which they claimed. He cited

Fry v. Lord Sherborne, 3 Sim. 243; s. c. 8 Law J. Rep. Chanc. 25. Doe d. Long v. Prigg, 8 B. & C. 231; s. c. 6 Law J. Rep. K.B. 296. The Commissioners of Charitable Donations v. Cotter, 1 Dr. & War. 498. Mr. Bates appeared in support of the other petition.

Mr. Freeling, for the children.

KNIGHT BRUCE, V.C.-I admit that, but for the cases which have been referred to, I should have been of opinion that the word "entitled" ought to be read as "entitled in possession." I could not, however, so decide without contradicting those authorities, and, as they exist, and there seems to be no cases the other way upon the interpretation of the word "entitled," I must hold that the petitioners are entitled to have a transfer made to them as they pray by their petition.

An injunction having been obtained by the plaintiff to restrain a joint action against him by several defendants, all the defendants but two put in their answers, and obtained an order to dissolve the injunction as against themselves; the other two defendants then put in their answers, but refused to move to dissolve:-Held, that those defendants who had obtained the order to dissolve were now at liberty to move to dissolve as against the other two defendants, without serving them with notice of the motion.

The plaintiff filed his bill for discovery in aid of an action brought against him jointly by the several defendants, and obtained the common injunction for default of answers, which was extended to stay trial. Some of the defendants having put in their answers, obtained an order to dissolve the injunction as against themselves. Two of the defendants who had not at this time put in their answer subsequently did so, but refused to move to dissolve the injunction. A motion was now made, on behalf of those defendants who had obtained the order to dissolve, that the injunction might also be dissolved against the other two defendants. Notice of this motion had not been served upon the two last-mentioned defendants. This was opposed, on behalf of the plaintiff, on the ground that an injury might be done to the absent defendants, who were equally important parties to the action as the defendants who now moved, and who might wish that the injunction should be continued.

Mr. Bethell and Mr. Lloyd appeared in support of the motion, and cited

Glasscott v. the Copper Miners' Company,

11 Sim. 314; s. c. 10 Law J. Rep.
(N.S.) Chanc. 30.

Nanney v. Vaughan, 8 Sim. 439; and
Joseph v. Doubleday, 1 Ves. & B. 497.

Mr. Stuart and Mr. Bailey opposed the motion.

The VICE CHANCELLOR.-This seems to me a matter of course, and I am confirmed in my opinion by what was done by Lord Eldon, in Joseph v. Doubleday, where it was. held, that some defendants might move to dissolve as against all. In that case a joint

G

action was brought by two solvent partners and the assignees of a bankrupt partner; a bill was filed for discovery, and an injunction having been obtained the solvent partners put in their answer; and after having obtained a dissolution of the injunction as against themselves, the assignees of the bankrupt partner put in their answer, and then the solvent partners moved to dissolve the injunction as against the assignees as well, and that motion was only refused by Lord Eldon, because there were exceptions pending to the answer of the assignees. That was an admission that if they had put in a full answer, the injunction would have been dissolved as a matter of course. If the plaintiff had shewn that the two defendants, who had not been served with this notice of motion, had expressed a desire that the injunction should not be dissolved, that would have been a reason for the Court to hold its hand; but prima facie, where the action is joint, we must presume that the interest is joint, and that the action is one which can go on unless something is shewn to the contrary. The motion must therefore be allowed.

In this suit, which was instituted by Mrs. Newton and her infant children by their next friend, against the trustees of a settlement, in which they were interested, a decree had been made directing the payment of a sum of money to Mrs. Newton, and that the costs should be paid by the trustees. The costs of Mr. Newton, the husband of the plaintiff, who was a defendant in the cause, were to be paid by the plaintiffs, who were to have them over against the trustees. Previously to passing the decree an appointment was made by the plaintiffs' solicitor, who was also the solicitor for Mr. Newton, to attend at the registrar's office on the 30th of June to settle the minutes of the decree.

Shortly before the hour appointed, Mr. Newton, who was on his way to the registrar's office, was arrested in Lincoln's Inn by a sheriff's officer under an attachment for non-payment of a sum of 191. costs which he had been ordered, in another suit, to pay to the defendants in the present suit.

Mr. Newton, who was brought up by habeas corpus cum causá, now moved in person for his discharge; the notice of motion and the affidavits in support were headed in the cause, which was heard at the Rolls.

The application was made upon two grounds: first, that the privilege from arrest in favour of a party attending the prosecution of the suit extended as well to the registrar's office, as to the Court, or the Master's office, or the Commissioners in Bankruptcy-Sidgier v. Birch (1), Ex parte King (2), List's case (3), Franklyn v. Colquhoun (4), Arding v. Flower (5), 1 Chitty's Archbold's Pr. Q.B. pp. 685, 686: and as to the importance of a party attending the drawing up the decree he cited Davenport v. Stafford (6). And secondly, that since the passing of the 7 & 8 Vict. c. 96. ss. 57, 58. no attachment could issue for payment of costs under 201.; and lastly, that it was no objection to the application that the notice of motion and affidavits had been headed in a cause depending before another Judge; for the application might have been made ex parte before any Judge of the superior courts-Ex parte King.

to me, prevents a Judge in one branch of this Court from discharging a party in a cause who has been attached under an order made in another branch of this Court. I regret to be compelled to decide this question upon a point of form. Mr. Newton has given his notice in a cause in respect of which this branch of the Court has no jurisdiction; the motion therefore is made in a form which precludes me from dealing with it.

Application was then made to the Lord Chancellor, who ordered that Mr. Newton should be brought up the following morning to apply for his discharge, and that such application should be heard before Vice Chancellor Wigram.

Mr. Newton then renewed his motion upon the same grounds as before.

Mr. K. Parker and Mr. Hall, contrà, contended that the suitor was only protected on attending judicial proceedings, whereas the duties of the registrar were merely ministerial; that, if the privilege were extended further than this, a party might be exempted from arrest during the progress of the suit-Crone v. Odell (7), Beames's Orders, p. 38.

WIGRAM, V.C.-I am of opinion that Mr. Newton is entitled to his discharge upon the ground of his privilege whilst attending the registrar's office. It is admitted that the rule extends to parties attending the proceedings of the cause, both before the Court and in the Master's office; and the sole question argued has been whether the same privilege extends to a party attending the registrar's office. It has been argued that the proceeding in the registrar's office is merely ministerial; that duty being merely to draw up the order which the Court has pronounced. This is no doubt true in theory; but in practice, the Court, for the sake of greater caution and accuracy, requires all parties interested in the suit to have notice of, and to be present, if they please, at the drawing up of the decree, so as to insure that it shall be drawn up in accordance with the judgment pronounced in court; and the practice observed in the office is not to draw up the decree until after three notices

(7) 2 Moll. 525.

have been served. In this case the party arrested had a direct interest in the decree, namely, as to the costs of the suit. The consent of counsel or solicitor might seriously affect the rights of the client, and therefore the party is allowed personally to attend and watch the proceedings, and is protected during such attendance. The order therefore must be that Mr. Newton be discharged.

Mr. K. Parker then asked that it might be made a term of the order, that Mr. Newton should bring no action against the parties at whose instance the attachment had been executed-Frost v. Daniell (8), Lorimer v. Dale (9), Magnay v. Burt (10). Mr. Newton in person, opposed the application.

WIGRAM, V.C.-In this case it is admitted, that the ground for arrest was lawful, and the only objection is on the question of privilege. In the cases at law which have been cited, the error arose from some irregularity in the proceedings merely, and in which the circumstances excluded altogether the presumption of malice. I am by no means of opinion that any malice has been shewn in this case. The point upon which the arrest has been discharged in this case has never been before decided, a circumstance which would probably have great weight with any jury before whom the case might come. I do not think that in the present case I ought to impose any terms upon the party.

A mortgagee devised the mortgaged estates to three trustees upon trust to reconvey the same to the parties entitled to the equity of redemption, upon payment of the mortgage-money. The mortgagee having died, a suit was instituted for the administration of his estate, and a receiver was appointed. The devisee and personal representative of the deceased mortgagor, having paid the mortgage debt and costs to the receiver, sought a reconveyance of the mortgaged estates. One of the devisees in trust of the mortgaged estates could not be found; whereupon the other two devisees in trust presented a petition under the 1 Will. 4. c. 60. praying the usual reference to the Master, whether the absent devisee in trust was a trustee within the meaning of the act, and if so, to approve of a proper person to convey in his stead. The Master found that it was uncertain whether the absent devisee in trust was living or dead, and whether or not he was out of the jurisdiction; and he found, that, if living, he was a trustee within the meaning of the act for the party entitled to the equity of redemption; and he approved of a proper person to convey in his stead. The present petition was filed by the two other devisees in trust, praying a confirmation of the report, and for a reference to the Master to approve and settle a proper reconveyance to the representative of the mortgagor; and that, upon payment of the costs of the mortgagee and his representatives, the conveyance might be executed by the petitioners and by the person appointed by the Master to reconvey in the place of the absent devisee.

The only question upon the hearing of the petition was, whether the costs of the petition under the act and consequent thereupon, were to be borne by the estate of the mortgagor or the mortgagee.

The Solicitor General, for the petition, contended that there was nothing in the present case to take the costs in question out of the general principle applicable to costs of redemption, namely, that the mortgagor must bear all the costs incident to the reconveyance of the mortgaged estates, except such as may have been occasioned by the misconduct of the mortgagee; and he cited

Wetherell v. Collins, 3 Madd. 255.
In re Marrow, Cr. & Ph. 143; s. c.
10 Law J. Rep. (N.S.) Chanc. 340.

Mr. Walpole, for the representative of the mortgagor, contended that as the costs of the petition under the act had been occasioned by the unnecessary act of the mortgagee, his estate ought to bear those costsCapper v. Terrington (1); and he distinguished the present case from the cases of Burden v. OÖldaker (2), Ex parte Ommaney (3), Ex parte Richards (4), In re Townsend (5), where the application became necessary from circumstances over which the mortgagee had no controul.

WIGRAM, V.C.-Primá facie the rule is, that the expense of a reconveyance of mortgaged property must be borne by the mortgagor. The principle by which Sir John Leach was guided was, that where a party mortgages his estate, it is incident to the right of the mortgagee to deal with the property for his own benefit, and therefore to deal with it in the ordinary way as other property. The question came before the Lord Chancellor in lunacy, In re Marrow, and the question there was, whether, the mortgagee having become lunatic, the estate of the lunatic or that of the mortgagor was to pay the costs incident to the reconveyance of the estate, and the Lord Chancellor thought that the mortgagor ought to pay the costs, disapproving of the case of Ex parte Richards. In Townsend's case the same question came before him, and still disapproving of Ex parte Richards, he thought that as that case had been twice followed, the practice was therefore settled, and should not be disturbed. If the case rested there, much might be said as to the distinction between that case and the case now before the Court. In Ex parte Richards it was admitted that where a mortgagee dies, leaving an infant heir, and an application to the Court is made, the costs of the conveyance are borne by the mortgagor. That class of cases, therefore, clearly shews that the principle, that wherever costs are occasioned by the necessity of applying for

(1) 1 Coll. 103; s. c. 13 Law J. Rep. (N.s.) Chanc. 239.

(2) 1 Coll. 105; s. c. 13 Law J. Rep. (N.s.) Chanc. 240.

(3) 10 Sim. 298; s. c. 10 Law J. Rep. (N.s.) Chanc. 315.

(4) 1 J. & W. 264.

(5) 2 Ph. 348; s. c. 16 Law J. Rep. (N.S.) Chanc.

4.56.

a reconveyance under the act the mortgagee pays the costs, is not of universal application. Therefore, there are two classes of cases opposed to each other, in one of which (the case in Lunacy) a certain practice has been established, and in the other a different principle is observed, in accordance with what the Lord Chancellor thinks right, and with the rule of the Court as to the costs of the mortgagor in getting back his mortgaged estate. I come now to a third class of cases, where the mortgagor has devised his estate to trustees instead of allowing it to descend to his infant heir. The first observation is, that the mortgagee has a right to do the best he can to protect the property in case of death. Is he to be at the peril of allowing the estate to descend to his heir-at-law, who may possibly be a person not to be trusted? Or is he not to be allowed for the protection of his own estate to place the mortgage, as well as his other property, in the hands of trustees? Can it be said, that if he did such an act he would be deprived of the effect of the general rule which entitles the mortgagee, on having his debt paid off, to be paid also his costs? I think he ought not; and being clear as to the general principle, the representatives of the mortgagee must, in the present case, have the costs of these proceedings before they execute the reconveyance.

In 1834 A, by deed, assigned certain leasehold farms, with the live and dead stock thereon, and certain debts and personal chattels, scheduled to the deed, to B. and C, in trust, for the plaintiffs. A. retained possession of the deed and the trust property till his death in 1838. In a suit for an account of the trust premises, the trustees by their answer stated, that they had taken the whole of the farming stock, &c. upon the premises at A's death, but that they were now advised that it was very doubtful whether, under the provisions of the deed, they were entitled to the whole, and they submitted that the executor of the settlor was a necessary party:-Held, that, as the bill claimed

no more than the property comprised in the trust deed, and the answer did not charge that the settlor had mixed up the settled property with his own, his executor was not a necessary party.

By a deed of assignment, dated the 12th of December 1834, and made between J. R. Gaunt of the one part, and the defendant Johnson and another, therein named trustees, of the other part, Gaunt assigned to the trustees certain leasehold farms and premises (part of which were in his own occupation), and certain mortgage and other debts then owing to him, and turnpike tolls, household goods and furniture, and all and every the live and dead farming stock, and other his personal estate, described in a schedule thereunto annexed, and all the growing crops of corn, grass, hay, seeds, and other articles then standing and growing or being upon the said several farms, lands, and premises in his own occupation, to hold the said chattels and premises upon trust to sell the same as they should think fit, and stand possessed of the proceeds, upon certain trusts, for the benefit of Jane Gaunt, otherwise Jane Jacobs, for life, with remainder to her five infant children, by name. In May 1838 the settlor died, and in 1845 the bill was filed by Jane Jacobs, otherwise Gaunt, and her five children against the surviving trustee of the deed of assignment, and the representative of the deceased trustee, for an account of the trust property, and of the dealings and transactions of the trustees therewith.

The answer of the surviving trustee stated, that the trustees were not aware of the execution of the deed by the settlor until August 1835, when they were informed thereof by the solicitor of the settlor, and that they then executed it at his request; that the trustees did not thereupon take possession of the indenture, or of the premises and property comprised therein, but that the same were allowed to remain in the possession and under the controul of the settlor till his death, when the trust deed was handed over to the trustees, who thereupon entered into the possession of the trust premises; that at the death of the settlor the trustees took possession of the crops and live and dead stock on the farm, in the occupation of the settlor, and sold