venient and injurious to poor people, and it was for their benefit, and not for the benefit of the pawnbroker, that the law was relaxed and certain provisions introduced for their protection. The Pawnbrokers' Act, 39 & 40 Geo. 3. c. 99, which is now the existing law, authorizes parties to advance sums under 107., and it then contains various regulations for the protection. of parties lending money, applicable to loans under 10l. The 30th section, however, says (and if it had stood alone it would have left the law as it was before) "that nothing in this act contained shall extend or be construed to extend to any person or persons whomsoever who shall lend money to any person or persons whomsoever upon pawn or pledge at the rate of 5l. per cent. per annum interest without taking any further or greater profit for the loan or forbearance of such money lent on any pretence whatsoever." Here, then, was a law regulating advances of money under. 10l., bona fide under 101. There may be a fraud in advancing money at different times, making in reality only one loan; but such bona fide advances are within the provisions of the act, which gives a certain protection both to the lender and the borrower; but any person lending money above 10l. at 57. per cent. cannot be within the operation of the act: so that the pawnbroker in his shop, with all the insignia of a pawnbroker around him, on any person coming to him for a loan of 500l. at 5l. per cent. might lend it to him. The 30th section sets that point beyond all doubt, and that money might be lent upon pledges of property. Pawnbrokers, then, being under no disabilities except so far as they were obliged to conform to the provisions of the act if they advanced money under 107., are in the matter of larger loans on the same footing with all other subjects of Her Majesty. We have also two decisions in the Court of Common Pleas which establish that pawnbrokers are confined to sums under 107.; and we have also a judicial decision that the act applies only to transactions under 10%. If so, then all transactions above 10l. are to be looked at as if the Pawnbrokers' Act did not exist. If, then, the act did not touch them, the old law applied. Then comes the act now in force with respect to usury, which enacts that the usury law shall not affect "any contract for the loan or forbearance of money above the sum of 107. sterling," and then, for further security, it says, "that nothing herein contained shall extend or be construed to extend to repeal or affect any statute relating to pawnbrokers, but that all laws touching and concerning pawnbrokers shall remain in full force and effect as if this act had not been passed." Then, what are the laws relating to pawnbrokers? Why, they are confined to loans under 10l. The 2 & 3 Vict. c. 37, for greater security, provides that the laws relating to pawnbrokers shall remain as they were before; and those enactments relating to pawnbrokers are clearly confined to transactions under 101. A pawnbroker before that act might advance money upon goods at 51. per cent. and he would be acting as a pawnbroker, but he would not be, within the Pawnbrokers' Act, acting as such, because he was expressly excepted. He might lend money as any other person could, provided it was above 10l. Now, the new act says that any person may advance money above 10l. without being interfered with by the old law, and the pawnbroker is no exception to the rule of law. All persons are exempted from the operation of the usury laws on loans above 10%. Pawnbrokers are not excepted in terms, and there is nothing to make them liable to an incapacity which they were not under at all by the former law, and so they are not now liable in transactions above 10%. And then, in addition, we have the decision of the Court of Exche quer in Turquand v. Mosedon (5), which holds (and which could not otherwise hold in my opinion) that loans on deposits. above 10l. are protected by the 1st section of the 2 & 3 Vict. c. 37; and we have also the decision of the Court of Queen's Bench in Pennell v. Attenborough, which, under the circumstances, is identical with the present case. It applies to a transaction of this sort: A special transaction with a pawnbroker for a loan above 10. is as lawful a transaction as if the lender were not a pawnbroker." That is the whole of the present case; and it (5) 7 Mee. & W. 504; s. c. 10 Law J. Rep. (N.S.) Exch. 196. 66 seems, therefore, to me that the Pawnbrokers' Act has nothing to do with this case. The transaction is just as binding as if the lender were not a pawnbroker; and here the party is acting in conformity with the contract. The question is, was the contract legal or illegal? I am of opinion that it was not illegal, and that the party is not under any disabilities by reason of his being a pawnbroker; and it certainly comes within the decision of the Court of Queen's Bench. The only thing upon which a doubt may be raised is the revenue law. What struck me at first was the privilege which the revenue law gives to pawnbrokers; but that does not affect the case. It would be an unfortunate position for a man to be in to be required to take a licence for doing that which all the rest of the world might do without a licence. That might probably have been an error in the act which does not exist now. The question might arise under the revenue law, whether a person was liable or not for the infringement of that law. However, I am not looking at that, but upon this question alone, how far a man who is a pawnbroker is liable for doing that which all the rest of the world may do? It was not intended to impose a duty upon any except upon those who come within the definition of a pawnbroker and took the benefits of the Pawnbrokers' Act. April 21.-The LORD CHANCELLOR discharged the Vice Chancellor's order, and dissolved the injunction, and gave the defendant his costs of the motion below. v.c.} WHITE V. PEARCE. the whole the sum paid by the defendant to the plaintiff on the compromise. This was a petition by the plaintiff's solicitors in respect of their lien for costs upon such parts of the defendant's estates as were directed by the decree in the cause to be sold. The suit was instituted by the plaintiff for the recovery of certain judgment debts due to him by the defendant; and by the decree at the hearing on the 23rd of December 1847, it was, amongst other things, ordered that the defendant should pay within six months of the report of the Master what the latter should find to be owing, and also the taxed costs; but in default of payment it was, by consent, ordered that certain estates of the defendant should be sold, with the approbation of the Master. By his report of the 26th of July, the Master found that the sum of 2437. 10s. 4d. would be due to the plaintiff for principal and interest on the 10th of January 1849, and that the costs had been taxed at the sum of 1177. 15s. 11d., making together the sum of 361l. 6s. 3d. The defendant not having paid any part of the amount on the day appointed, the petitioners, as solicitors of the plaintiff, carried in proposals for the sale of the property; the particulars and conditions were approved by the Master, and the sale advertised for the 2nd of June 1849. The petitioners gave notice to the defendant's solicitor of their lien for costs on the amount directed to be paid by the defendant, and having heard that negotiations for a compromise were in treaty between the plaintiff and the defendant, the petitioners wrote to the solicitor of the latter and objected to the payment of any money to the plaintiff until their lien for costs had been discharged. On the 1st of June 1849 the plaintiff wrote to the petitioners informing them WIGRAM, V.C. A suit was compromised between the plaintiff and the defendant by payment by the latter to the former of a certain sum. The defendant had notice of the lien of the plaintiff's solicitors for the costs of the suit. Ordered, on the petition of the solicitors, that the plaintiff and the defendant, or one of them, should pay the solicitors their taxed costs of the suit and of the petition, not exceeding in dant and given directions to postpone the sale, requesting the petitioners to send him their bill up to that time, and promising a remittance. The petitioners accordingly sent their bill of costs, then amounting, inclusive of the taxed costs, to the sum of 1857. 15s. 1d., but their costs had not been paid. The terms of the compromise of the suit were the payment of 300l. to the plaintiff by the defendant. The petition prayed a declaration that the petitioners had a lien or charge for their costs upon the estate and premises directed to be sold, or upon the interest of the plaintiff therein under the decree or otherwise, or upon the purchase-money of the premises when sold, or upon any monies or other consideration which should be given by or on behalf of the defendant to the plaintiff for the assignment, transfer or release of the plaintiff's right or interest therein, or that the plaintiff and defendant, or one of them, might be ordered to pay the petitioners the amount of their costs out of any monies to be paid to the plaintiff in respect of the debts mentioned in the bill, or of the debts and costs, or that the plaintiff might be ordered not to assign, transfer or release his right or interest in the premises without payment to the petitioners of the amount of their costs, or that the lien and charge or other right or claim of the petitioners for their costs might be provided for in such manner as the Court should direct; and if it should appear that the defendant's solicitor had received from or on behalf of the defendant the amount of the debts and costs, or any money in respect thereof, for the purpose of settling the plaintiff's claim, then that the defendant's solicitor might be ordered to pay thereout to the petitioners the amount of their costs so far as the same should extend. That the petitioners' costs might be taxed as between solicitor and client so far as the same had not been already ascertained, so that the premises might be sold under the decree, and that it might be referred to the Master to appoint another day for such sale or for such further order as the circumstances might require; and that the plaintiff and the defendant and the defendant's said solicitor, or one of them, might be ordered to pay the petitioners the costs of the present petition. The Solicitor General and Mr. Hare, for the petitioners, cited Read v. Dupper, 6 Term Rep. 361. Taylor v. Popham, 13 Ves. 59, and 15 Ex parte Rhodes, 15 Ves. 539. Stedman v. Webb, 4 Myl. & Cr. 346; s. c. 8 Law J. Rep. (N.s.) Chanc. 193. Bozon v. Bolland, 4 Myl. & Cr. 354; s. c. 9 Law J. Rep. (N.s.) Chanc. 123. Potter v. Hyatt, 2 You. & C. Ex. 113; s. c. 6 Law J. Rep. (N.s.) Ex. Eq. 37. Lann v. Church, 4 Madd. 391. Farewell v. Coker, 2 P. Wms. 461. Wilkins v. Carmichael, Dougl. 97. Cole v. Bennett, 6 Price, 15. Nelson v. Wilson, 6 Bing. 568; s. c. 8 Law J. Rep. C.P. 226. Mr. J. H. Palmer, contrà, urged that there was no collusion between the plaintiff and the defendant or the solicitor of the latter to deprive the petitioners of their costs. Lord Hardwicke had laid down the true principle in an Anonymous case (1), that if the transaction was bona fide, it would be supported. The Solicitor General replied. WIGRAM, V.C.-There is no doubt that the petitioners have a lien upon whatever has been received for compromising the suit. In this case the petitioners have, as against their own client, a lien at law. This Court will not allow the existence of a lien to prevent the parties from coming to an amicable arrangement. If it was a bona fide compromise, the parties would be justified in carrying it out, although it might deprive the petitioners of their lien. If the solicitor pressed the defendant, or the latter was compelled by any great pressure to effect a compromise, and the solicitor founded his claim, not in law, but in equity, there might be a reason why the defendant should not be ordered to pay over the money again. But if the defendant, not being under any pressure, does pay with notice of the solicitors' lien, the question then is, whether the payment is or not made by the defendant in his own wrong. In Welsh v. Hole Lord Mansfield puts the case of the assignment of a chose in action, which in legal strictness is not a good transaction; still as against the right of the assignee, the debtor, after notice, could not in equity avail himself (1) 2 Ves. sen. 25. of a payment to the principal. The present is certainly not a weaker case. The defendant was asked to pay the money to the petitioners, and notice given of their lien for the costs of the suit. The estate would have been sold, and the money would have come into court, whereby the costs would have been secured to the petitioners, if it had not been for this agreement between the plaintiff and the defendant. The agreement come to appears to be a very proper one, and I have no doubt that it was made bona fide. Mr. Palmer has argued that the original order at the hearing is now sought by the petitioners to be revived; but I think that the defendant has paid the money in his own wrong, and that if the petitioners want to recover it they have a right to proceed either against the plaintiff or the defendant. The order made was to the effect following:-Refer it to the Vacation Master to tax the costs of the plaintiff in this suit not already taxed and the costs of the petitioners of this application; the firstmentioned costs to be taxed as between solicitor and client. And direct the plaintiff and the defendant, or one of them, to pay to the petitioners the amount of such costs and also the sum of 117l. 15s. 11d., the costs of the plaintiff of this suit already taxed (not exceeding in the whole the sum of 300%., paid or agreed to be paid to the plaintiff by the defendant or his solicitor in respect of the matters in this suit), within fourteen days from the service of the order as to the costs already taxed, and within fourteen days from the service of the certificate of taxation of the costs now directed to be taxed. 1843, an application was made, upon the authority of Mores v. Mores (1), to have the cause set down for hearing notwithstanding the husband had not appeared. Upon an objection raised by the Registrar to the jurisdiction of the Vice Chancellor, the Court refused to make the order. This was a suit against the executor and trustee of a will for the distribution of a trust fund. The plaintiffs were the parties beneficially interested, one of them being the wife of J. Brettell, who was made a defendant. It was stated by the bill, that on the marriage of J. Brettell and his wife, the share of the wife was settled upon certain trusts for her and her husband, and the survivor of them for life, and after the decease of the survivor for the children of the marriage, and in default of children, for the executors and administrators of the husband. It was further stated that the husband had left his home in the year 1843, and had not since been heard of, and that the plaintiffs did not know whether he was out of or within the jurisdiction of the Court. Upon these circumstances, supported by affidavit, Mr. Bevir moved that the plaintiffs might be at liberty to set down the cause to be heard on bill and answer, notwithstanding that the defendant J. Brettell had not appeared; and he referred to the case of Mores v. Mores (1), in which the Vice Chancellor Wigram had made an order in a similar case. The VICE CHANCELLOR, on reading the report of Mores v. Mores, made the order. June 20.-Mr. Bevir again applied to the Court in consequence of the Registrar having declined to draw up the order, upon the ground that the Vice Chancellor had no jurisdiction to make such an order, which had reference to the Lord Chancellor's cause paper, and this was stated to be the opinion of all the Registrars. He submitted that the 24th section of 53 Geo. 3. c. 24 (the act creating the office of Vice Chancellor), gave his Honour power to direct a cause to be set down, and that such an order would be strictly "incident to a ministerial office (1) 6 Hare, 125, 127, n.; s. c. 17 Law J. Rep. (N.S.) Chanc. 311. A testator bequeathed 1,000l. to trustees, upon trust for his son A. for life, with remainder to the children of A. He then gave the residue of his estate and effects to his trustees, upon trust, for all his children in equal shares, and the heirs of their respective bodies. The following words were then added in a parenthesis: “except as to my son A. and his children, whose share, in consequence of the 1,000l. set apart for him and them as aforesaid, shall be rated at 1,000l.less than that of any other child." The will then declared that in case of a failure of issue of any child, the share of him or her whose issue should fail should be held on the trusts therein mentioned. The testator left freehold estates and personalty applicable to the trusts declared of the residue :—Held, first, that the words in the parenthesis did not cut down A.'s interest in the residue to a life estate; and, secondly, that the words "failure of issue" were not made by the 29th section of the Wills Act to mean failure of issue at the death of A. J. S. Green, by his will, dated the 18th of October 1838, after certain devises and bequests, gave all the residue of his real and personal estate to Joseph Rock and William Fowler, their heirs, executors, administrators and assigns, upon trust, to convert his personal estate into money, and pay his debts and legacies, and to pay his wife an annuity of 100%., and then to invest the principal sum of 2,000., and stand possessed thereof, upon trust, to pay the interest of 1,000l., part thereof, unto his daughter Mary Green for life, and, after her decease, NEW SERIES, XVIII.-CHANC. to pay the same interest unto any husband of his said daughter for his life, or until his insolvency; and after his decease, insolvency, or bankruptcy, upon trust, to divide the principal between the children of Mary Green, their executors, administrators and assigns, as tenants in common, to be vested interests in them at twenty-one, or death under that age, leaving issue at their deaths, with such provisions as therein contained in the event of her dying unmarried or without children; and upon further trust to pay the interest of 1,000l., other part of the said sum of 2,000l., unto his son J. F. Green, for his life or until his insolvency, and after his decease, insolvency, or bankruptcy, then, upon trust, to pay the same interest unto any wife of his said son for her life, and, after her decease, upon trust, to divide the principal between his children and issue, in the same manner and under the same restrictions and powers as the 1,000l. in favour of his said daughter and her children and their issue, with such provisions as therein contained, in default of issue who might take a vested interest, in favour of Mary Green and her children. The will then proceeded as follows:-" And subject to such annuity to my said wife, and the said sum of 1,000l. in favour of my said daughter, her husband and children as aforesaid, and the 1,000l. set apart for my said son J. F. Green and his issue as aforesaid, upon trust, that they my said trustees J. Rock and W. Fowler, and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor, shall and do stand possessed of the residue and remainder of my said estate and effects according to the nature of the same estates respectively, in trust, for all and every my child and children, in equal shares and proportions, and the several heirs of their respective bodies (except as to my said son J. F. Green and his children, and their issue, whose share in consequence of the 1,0007. set apart for him and them as aforesaid, shall be rated at 1,000l. less than the share of any other of my children); and, in case there shall be a failure of issue of any of such children, then as to the share or shares of him, her, or them whose issue shall so fail, to the use of the other or others of them as tenants in common, and the several heirs of their respective bodies; and in case there shall be a failure of issue of all such 30 |