called on by the defendant Penson to execute the same, as to render him a proper party to the suit; but his Lordship could not at all agree in that argument, and therefore, as against the defendant Hunter, the bill must be dismissed with costs. The

decree as to the other parties would require consideration, and a perusal of the pleadings, conditions, and particulars of sale. The description contained in the particulars of sale was enough to induce a purchaser to buy property like the present, on the supposition that he would be surrounded by respectable houses. Looking at the words used in the particulars and conditions of sale, his Lordship could not conceive that anything more was intended than that a road to his own house was all that the plaintiff could fairly require. In a case of this nature a purchaser would naturally be anxious to know the kind of houses he would have around him; but was not the plaintiff induced to purchase lot 17 on the supposition that the neighbourhood would be respectable, and the houses around him properly occupied? The plaintiff was entitled to a decree, so far as it could be performed; but his Lordship would carefully consider the matter before giving his judgment with reference to the other parties on the record.

Nov. 4.-The MASTER OF THE ROLLS.This is a bill filed by the plaintiff against the defendants, Penson and Ward, seeking the specific performance of an agreement, dated the 16th of July 1844, for the purchase by the plaintiff of a plot of freehold land. Conditions and particulars of sale were printed, issued and circulated, and a map of the lands delineating the various lots advertised to be sold, and the roads intended to be made thereon, accompanied the conditions and particulars of sale. It was stated in the particulars (amongst other things) that about twenty-seven acres of the land were adapted for building purposes, and were set out with good roads and would afford frontages eligible for the erection of genteel residences of a superior description, and the vendor was to make and plant with lime trees the roads marked on the plan, and to be paid the expenses thereof by the owners of the several lots.-[Here his Lordship read the 12th of the conditions of sale.]

At the sale by public auction the plaintiff became the purchaser of lot 17, for the sum of 255l., and signed an agreement for purchase thereof. The dispute between the parties has not arisen with reference to any question of title of the vendor; but as to his obligation to make a certain new road. The plaintiff requires the road to be made; but the defendant Penson says, he cannot make the new road without incurring a forfeiture of the leasehold ground, through which such road (if made) must necessarily pass into the high road; and he further says, the plaintiff has no interest in such road. Having regard to the map accompanying the conditions and particulars of sale, it seems to me difficult to say that the plaintiff can have much interest in the intended road. The plaintiff however says, the right to the road may have a material effect on the character of the other houses to be afterwards erected on the land, and he insists on his right; and if the making of the road in question is part of the contract entered into by him, I cannot say the plaintiff is to be treated in this court as having no interest in it.

The question then is, first, whether the intended new road is part of the contract entered into; secondly, whether this part of the contract is to be specifically performed; and thirdly, whether, if the plaintiff cannot insist on the right to the new road, he has a right to have compensation awarded him, in respect of so much of the contract as cannot be executed. I think where a vendor of land sold in lots for building purposes, accompanies the description of it with a map or plan, he holds out to purchasers an expectation that the land will be so divided as appears on the map or plan, and he cannot afterwards alter or vary the same. I have looked through the particulars and conditions of sale; and I think they must, in connexion with the plan, be considered as holding out to the purchasers that the lots would be divided by wide and handsome roads as delineated on the plan; and the plaintiff has a right to require that the plan shall not be departed from, if it can be carried out. But the defendant Penson cannot, it appears, make the intended new road without incurring the risk of forfeiture of the leasehold piece of land across which that new road would have to pass. I think it is not incumbent on the defendant to run

that risk; and that, under the circumstances, he ought not to be required by the plaintiff to make the road. The plaintiff, if he desire it, is entitled to have a specific performance of the contract in all other respects, and to have lot 17 without the road; and if the plaintiff desire it, I will refer it to the Master to ascertain the damages sustained by the plaintiff from the loss of the road. The defendant offered, before the bill was filed, to give the plaintiff compensation for the loss of the road. As against the defendant Ward, the bill must be dismissed with costs; but I give no costs to the defendant Penson up to the hearing. If no decree be taken, and the plaintiff elects to bring his action at law for damages, then the bill must be dismissed as against Penson, without costs.

Administration Suit-Class of Legatees -Incumbrances-Assignor and AssigneePayment of Costs-Parties entitled to receive Costs-Answers.

Where one of a class of persons interested in a testator's residuary personal estate files a bill for its administration, the general costs of the suit are to be satisfied out of the fund generally; but where some of the parties beneficially interested have incumbered or absolutely assigned their portions of the fund, the costs of the assignors only will be allowed, the same to be paid to their assignees respectively, and the rest of the costs incurred by the assignees must be satisfied out of the assigned shares respectively.

Defendants to a suit in the same interest ought to join in answering; but there is no rule of the court which compels them to do so, and it is left entirely to the honour of counsel and the solicitors of the court to exercise a discretion as to whether parties defendants shall join in their answers, or put in several answers to a bill.

The bill was filed by Mary Greedy, the wife of W. Greedy, by her next friend, and

sought the administration and distribution of the residuary personal estate of a testator, who by his will bequeathed the same to trustees upon trust to pay the interest and dividends thereof to his wife (since deceased) during her life; and after her decease to sell the same, and stand possessed of the sale monies in trust for the testator's second cousins, being the sons and daughters of his first cousins (being six in number, whom he named in his will), to be equally divided between them as tenants in common, and to be a vested interest on their respectively attaining the age of twenty-one years. The plaintiff and her husband, who was one of the defendants, had joined in assigning the plaintiff's distributive share in the testator's estate to a person of the name of Burnell, for what was alleged to be a very inadequate consideration.

An order of reference was made by the Court to the Master, directing him to make the usual preliminary inquiries as to who were the children of the testator's first cousins, named in the will, and whether all necessary parties were before the Court. By the Master's report, dated in February 1846, it appeared that there were fifteen children of the testator's first cousins, who were entitled to his residuary personal estate. In November 1847 a decree was made in the suit; and, in pursuance thereof, the Master made his report in February 1848, by which the amount of the testator's residuary personal estate was ascertained, and also the shares thereof, to which the various parties were respectively entitled. Some of the parties had absolutely assigned and others had incumbered their respective shares in the testator's residuary estate: separate answers had also been filed by some of the defendants who had incumbered their shares apart from other defendants in the same interest, whilst in other instances, several of the defendants had joined in the

same answer.

Mr. Roupell and Mr. Blunt, for the plaintiff, contended that the individuals forming the class mentioned in the testator's will could only be ascertained through the medium of a decree; and suggested that the ordinary costs of the suit should be paid out of the residuary fund generally; that one set of costs only should be given to each of the interested parties, and that in

those cases where assignments had been executed, the assignors' costs respectively only should be allowed, the same to be paid to their respective assignees.

Mr. Cooper and Mr. Speed, for three of the defendants, who had joined in the same answer, contended that the plaintiff ought not to have her costs out of the residuary fund of so much of the suit as related to her demand of a settlement on herself for her separate use of a portion of her share in the fund.

Mr. Hallett, for the defendants Owen and Gutch, the personal representatives of a deceased executor and trustee, claimed costs as between solicitor and client, and also certain extra costs relating to advertisements and notices of assignments which they had incurred. He referred to the case of Jenkins v. Bryant (1), recently decided by the Vice Chancellor of England, who in that case gave only one set of costs, as between assignor and assignee, of the share of a fund in court, the same to be paid to the assignee.

Mr. Cankrien, for W. King, the purchaser of three of the fifteen shares in the residuary estate of the testator, cited Shuttleworth v. Howarth (2).

Mr. Humphry, Mr. Law, Mr. Hislop Clarke, Mr. Goodeve, and Mr. Sheffield, appeared for other parties.

The MASTER Of the Rolls.-The first question is, whether the plaintiff is entitled generally to the costs of the suit; and she claims to be so entitled on the ground that the suit is an administration suit, instituted for the purpose of ascertaining who are the parties entitled under the testator's will, and the amount of their respective shares in his estate if that be the case, the plaintiff is entitled to the costs of the suit. On the other hand, it is said, the suit had other objects beyond the administration of the testator's estate in view, and had reference to transactions that had taken place between the plaintiff and some of the parties to the suit, whereby expenses were incurred other than and besides administratory expenses. I cannot, however, ascertain how the fact is,

(1) 29th of June 1848. (2) Cr. & Ph. 228.

except by looking through the pleadings in the suit. There may have been costs incurred, to the payment whereof the plaintiff is not entitled; and if it be desired that an investigation be made with reference to such costs, I must direct an inquiry to be made before the Master relative thereto.

[Here Mr. Cooper, on behalf of his clients, stated that he would waive any such inquiry.]

The objection being then withdrawn, the plaintiff is entitled to her costs; and the trustees are also entitled to their costs. The other necessary parties to the suit are persons who claim as legatees to be entitled to participate in a sum of money given to a particular class of individuals. Testators, when making their wills, are little aware of the difficulty that arises in ascertaining the individuals who form the classes mentioned in their wills, and if they were informed of the expense to which they were thereby putting their estates, and the delay that would necessarily arise from such bequests, they would be more careful. The expense and trouble is occasioned in such cases, not by the forms and proceedings of the Court of Chancery, which gets the blame of it, but by the bequest made by the testators themselves. The parties necessary to be ascertained under the present bequest were the second cousins of the testator, who were fifteen in number. If this had been a mere suit in which all the parties interested had appeared, they would all have been entitled to their costs; but the case becomes a different one, when there has been a dealing in the funds, and some of the parties have, whilst others have not, incumbered their shares. Additional costs having been incurred by the former, it would be unjust to place the former on the same footing with the latter. If I have rightly understood the case of Jenkins v. Bryant, decided by the Vice Chancellor of England, and referred to by Mr. Hallett during the argument, it lays down a very reasonable rule, and is a sufficient authority to act upon for giving costs to the assignor only, and none to the assignee, and I must adopt it in those cases where there has been an assignment executed, and give the costs of the assignor. It appears that the parties in the same interests put in their answers some jointly and

others separately; and it is the duty of parties in the same interest, where they can, to join in their answers, but there is no rule of practice that compels parties to do so. A discretion is to be exercised in such cases, and the protection of suitors in this respect must very much depend on the honour of the counsel and the solicitors of the parties. Cases occasionally occur where it is impossible to determine whether it is proper or not for parties to join; and in the course of my experience I never met with an instance in which I could undertake to decide that the parties ought to be punished for not joining. In the cases of assignment the costs to be given to the assignor will be such costs as he is entitled to as one of the parties beneficially interested under the bequest, and those costs must be paid over to his assignee. As to the incumbrancer, the case is different; and the incumbrancer in each case will have such part of his costs as the costs of the assignor do not cover out of the particular share of the fund the subject of the incumbrances.

The MASTER OF THE ROLLS afterwards, on the fact being stated, that in some instances a party who had incumbered his share had joined in answering with a party who had not incumbered his share, said that the costs in such cases must be apportioned between the parties who so joined, the party who had not incumbered taking his aliquot share, and the residue going to the incumbrancer, as in the case of the other assignors.

On the 22nd of December this case was again mentioned to the Court, when it appeared that some of the parties who had assigned their interests in the fund were desirous of not taking any further steps, their costs having been ordered to be paid to the assignees, in which case the fund could not be distributed, and would remain incumbered; but

The MASTER OF THE ROLLS said, that if necessary the assignors would be ordered by the Court to bring in their bills of costs.

KENNY V. BEAVAN.

WIGRAM, V.C.
Nov. 9, 10.
Costs-Practice-Motion by Defendant
to dismiss upon Payment of Debt and Costs.

Upon a motion by a defendant in a creditors' suit to dismiss upon payment of the plaintiff's debt and costs, the costs being in dispute, the Court made the order to dismiss, with special directions to the taxing Master as to the allowance or disallowance of certain classes of costs.

This was a common creditors' suit, and the defendants were Mary Beavan and her husband, and Gardiner, Mary Beavan and Gardiner being the executrix and executor of the testator in the cause. Gardiner put in a disclaimer, and stated that he had renounced probate, &c. In July following, on the motion of the defendant Gardiner, the common order was made to dismiss for want of prosecution, the plaintiff appearing and opposing the motion. In August the plaintiff served the subpoena to appear and answer upon the defendant Mary Beavan. Negotiations were then entered into between the parties for a compromise of the suit, the defendants Beavan and wife offering to pay the plaintiff's debt with interest, and the costs of the suit; but these negotiations failed in consequence of the plaintiff claiming to be entitled to be paid also the costs of the defendant Gardiner's motion to dismiss, and also the costs of an action at law commenced before the institution of the suit in respect of the same debt, but afterwards abandoned. On the 11th of October, after an attachment issued for want of answer, the defendants offered to pay the plaintiff's debt with interest and costs, except the costs of the motion to dismiss and of the action at law. These terms were refused, and the defendants, having put in their answer, now moved to dismiss upon payment of the debt and costs as against the defendants Beavan and wife up to the time of filing their answer.

Mr. Drewry, in support of the motion, contended that the costs of the motion to dismiss were caused by the laches of the plaintiff in not prosecuting the cause; or, at all events, that motion ought not to have been opposed by the plaintiff; and that the

costs of the action at law were not costs in the cause; and that the defendants having, before putting in their answer, offered to pay all they were bound to pay, ought not to be saddled with the subsequent costs.

Mr. W. W. Cooper, for the plaintiff, contended, that on a motion like the present, the defendants must offer to pay all that the plaintiff claimed; and stated that it was admitted that the delay in prosecuting the suit arose from the request of the defendants themselves.

Mr. Drewry, in reply, urged that the Court might properly decide on this motion upon the propriety of the plaintiff's claim to the disputed costs, as the same question must eventually come before the Court upon application to review the report of the taxing Master, and that this course would not infringe the rule as to not deciding upon motion a substantial question in the cause.

Nov. 10.-WIGRAM, V.C.-The general rule is, that a defendant, coming to stay a suit before the hearing, must give the plaintiff all he claims; but that rule applies to the plaintiff's claim in the suit. The point here in dispute is collateral. If the Court should refuse to entertain the question now, namely, what costs were properly incurred, the same question after much expense must eventually come before the Court with no better materials for decision. Although, therefore, I doubted at the hearing of the motion, whether I ought now to decide it, I think it a case in which it would be proper to do so. Then, as to the merits; the plaintiff ought on the coming in of Gardiner's disclaimer to have himself dismissed the bill, instead of which he occasioned increase of costs by opposing Gardiner's motion to dismiss. The proper order will be that the bill be dismissed on payment of the plaintiff's debt and interest and the costs of the suit, including the costs of the motion to dismiss the bill for want of prosecution, with a special direction to the Master that in taxing the costs he is not to allow any costs caused by the plaintiff opposing Gardiner's motion to dismiss. The offer of the defendant Beavan on the 20th of October, after attachment issued, to pay costs, even if he had offered to pay all that he ought to pay (of which I am by no means satisfied), could not deprive the plaintiff of the subseNEW SERIES, XVIII.-CHANC.

Trading Company-Bill by Shareholders -Demurrer.

A shareholder in a trading company filed a bill on behalf of himself and all the other shareholders, except the defendants, complaining of acts done by the directors and the other defendants, injurious to the interests of the company. The suit had not been authorized by any general meeting of the shareholders; but the acts complained of had been done in pursuance of a resolution passed at a general meeting, and were held to be within the general powers of the company. A demurrer on the part of the company for want of equity was allowed, upon the ground that an individual shareholder was not entitled to be plaintiff in a suit for such an object.

This bill was filed, in March 1848, by William Hind Lord, on behalf of himself and all other the shareholders or corporators in a certain copartnership or corporation, called the Governor and Company of Copper Miners in England, except such of them as were defendants, against the governor and company of the mining company, the Governor and Company of the Bank of England, and sixteen other defendants, twelve of whom were the governor, deputy governor, and assistants of the mining company, (who were called the Court of Assistants,) and the remaining four were holders of loan notes.

The first-named defendants were incorporated by letters patent in 1691, and the corporation was under the management of the governor, deputy governor, and ten assistants. Its powers are mentioned more particularly by the Lord Chancellor in his judgment.

In 1841, a prospectus was issued by the then governors, in which it was proposed that the value of each existing share should be taken at 131., and that the capital of the company should be increased so as to consist of 1,000,000l., divided into 10,000

K