perty for 2,5007., which is one of the transactions impeached by this bill.

On the 23rd of July 1830, a decree was made in the creditors' suit, and on the 26th of March 1832, the Master made his report, by which he found, that James Hibbertson had received 1,5511. on account of the personal estate, and that he had made payments to the amount of about 4,114., leaving a balance of 2,5621. due to him.

In July 1832, the decree on further directions was pronounced, which directed a sale of the property, and which was afterwards put up for sale. It appears, that James Hibbertson, instead of stating by his answer what he had done as to the Church Street estate, and receiving the directions of the Court, suppressed the fact in his answer; but it being discovered in the Master's office, that this transaction had taken place, the present bill was filed to have it declared that these charges were fraudulent and void. Now, the general rule is subject to no doubt, that where there is a general charge for the payment of debts, the purchaser, generally speaking, is not bound to see to the application of the purchase-money; he is in no way bound to see to the application of the money, or what use the trustee may make of it: it is sufficient to place it in the hands of the trustee, free from appropriation, and subject to a proper application by the trustee; but if, in the course of the transaction, it appears, that the money is placed in the hands of a trustee, subject to an improper application, as for the private debt of the trustee, the purchaser is then bound to see the money properly applied, because he is aiding and assisting the trustee in committing a breach of trust. This being the rule, the question in all cases is, is the transaction of such a nature as to impose upon the purchaser the necessity of seeing to the application of the purchase-money? It is, therefore, necessary to see to this transaction again.

It appears, that so far from the defendants knowing that there was a breach of trust contemplated, they were informed, that all the money, except what was to be applied in discharge of the mortgage on the Maglow estate, was to be applied in payment of the debts of the testator. 1,000, was clearly applicable to the mortgage, and

a portion was to be applied in satisfaction of interest on the sum of 1,000l.; therefore, I do not think I can consider it clear that the 2,000l. in the whole was to be advanced for the payment of debts; the security offered for that which was to be applied in payment of debts, that is to say, the real security, was the Church Street property, and the equity of redemption of the Maglow estate: in other words, the equity of redemption of the Maglow estate was made applicable to the payment of the debts of the testator. Though these things were imprudently mixed, I do not think they amount to a knowledge of a breach of trust about to be committed by James Hibbertson, who was owner of the Maglow estate, subject to the mortgage, and to the Church Street property, subject to the charge for payment of debts-considering that he was the person charged, and that it did not appear that a breach of trust was in contemplation, or of which the defendants had notice, I think that the defendants were not bound to see to the application of so much of the 3,000l. as was not applied in satisfaction of the mortgage.

His Lordship also held the second charge of 2,500l. invalid, being made pendente lite.

March 15. This case again came before the Court on a point reserved. The first mortgage for 3,000l., which was charged on the Maglow and Church Street estates, was declared valid to the extent of 2,000l. (1), as against the Church Street or testator's estate; and the second mortgage, which being taken pendente lite, was declared invalid as against the testator's estate, comprised not only the Church Street and Maglow estates, but also a third estate belonging to James Hibbertson, called the Scrimes estate. These several estates were sold in round numbers for the sums following:

The plaintiffs now contended, that the second mortgage being taken pendente lite, ought not to be allowed to interfere with their equities, in regard to the first mortgage; and as respected this mortgage, the defendants having a charge on the two estates, while the plaintiffs had a charge on one only, the first mortgage ought to be paid out of the Maglow estate to the full extent of its value, so as to exonerate the Church Street property, for the benefit of the plaintiffs; the result would be, that 2,5007., the produce of the Maglow estate, and 500., part of the produce of the Church Street estate, would be applied in discharge of the said mortgage of 3,000l., leaving a surplus of 1,1007. out of the Church Street estate for the benefit of the plaintiffs; by this mode 2,2001. only, being the produce of the Scrimes estate, would then remain for the payment of the second mortgage of 2,500l., which was not a valid charge on the Church Street property.

For the defendants, it was contended, that upon the frame of this record, no adjudication could now be made on this point; and further, it was insisted that the doctrine of lis pendens could only apply to the matters actually put in issue by the bill; that, as the defendants had the legal estate, and the plaintiff a mere equity, (if any,) the plaintiffs had no right to an exoneration of the Church Street estate at the expense of the defendants, and that the whole or a sufficient part of the produce of the Church Street estate should be first applied in payment of the first mortgage, whereby such a portion of the produce of the Maglow estate would remain, as, together with the purchase-money of the Scrimes estate, would fully liquidate the defendant's second mortgage of 2,500l.

The point was argued by the same counsel.

The MASTER OF THE ROLLS.-The question is, as to the right of the creditors to be exonerated out of the Maglow estate. I never heard the doctrine of lis pendens carried to the extent contended for by the plaintiffs, that it is to be notice, not only of what is charged in the bill, but is to be considered notice of any equity, which by possibility can arise out of the matters in ques

tion in the suit, even if inconsistent with the relief prayed. Besides, the relief here prayed is, that the deeds may be declared fraudulent and void; there is no alternative prayer. After the first mortgage, Dixon and Carlton, without notice, advanced other sums to Hibbertson, on the security of the Maglow,Scrimes, and Church Street estates; as to the latter property, I considered the charge invalid, there being a lis pendens; but I cannot say that lis pendens is notice of any equity which can arise in the course of a cause, and I think there is no such equity as contended for by the plaintiffs; the effect would be this, that there having been certain sums of about 2,000l. advanced for the payment of the testator's debts, and this sum not being duly applied, as it is conjectured,-for it has not been proved, the creditors have, as against an incumbrancer of the private estates of the person who made the mortgage, an equity to be exonerated out of those estates. There being charges, amounting together to 5,500l. made to the defendants Dixon and Carlton, in respect of which 2,500l. and 1,000l. are not duly charged on the Church Street estate, there have arisen from the Maglow and Scrimes estates 4,700l., leaving 800l. of the amount of mortgages unpaid, and which is less than that which was advanced on the security of the Church Street estate for the payment of the debts of the testator. Messrs. Dixon & Carlton have, I think, a right to have this paid out of the 1,670., the produce of the Church Street estate.

tiff's right of set-off for the costs had priority over the lien of the defendant's solicitor.

The plaintiff being entitled to set off costs which were payable to him by the defendant, against a sum found due from him to the defendant, lodged a detainer against the defendant when in prison :-Held, that the plaintiff's right of set-off was not affected thereby.

In the year 1831, the plaintiff filed his bill in this court, to set aside certain conveyances and surrenders of a reversionary copyhold estate, which he had made to the defendant, and for an account of the rents and profits. In this suit, the petitioner, Mr. Cox, was retained for the defendant, and on the 22nd of April 1834, and before the hearing of the cause, the defendant being indebted to his solicitor in a sum of 4501., executed a deed of covenant to surrender the copyhold property, for securing the sum of 4501. Afterwards, on the 25th of April 1834, a decree was made, whereby it was declared, that the sale of the reversionary interest of the plaintiff, and the assignment of the personal property in the pleadings mentioned to the defendant, had been obtained by fraud; and it was declared, that the same should be set aside, and stand as a security for what, if anything, might appear to be due from the plaintiff to the defendant, and an account was directed to be taken of the dealings and transactions between the plaintiff and defendant; and it was declared, that on payment of what should be found due to the defendant, he should reconvey the property. The defendant was ordered to pay the costs of the plaintiff up to the hearing, and the Court reserved subsequent costs.

In August 1834, the Master certified the plaintiff's costs amounted to the sum of 3241. 8s. 2d.; and, pending the other proceedings before the Master, and before the accounts had been completed, the defendant was arrested for debt, and having surrendered to the King's Bench prison, an attachment was lodged with the marshal of the prison by the plaintiff against the defendant, for the amount of the costs. The defendant was afterwards discharged under the Insolvent Debtors Act, and included the costs due to the plaintiff, and the debt due to the petitioner in his schedule.

By his report, dated December 1836, the Master charged the defendant with the sum of 2,5091. 19s., which did not include the costs, amounting to 3247. 8s. 2d., and he charged the plaintiff with a sum of 2,9647. 1s. 94d., leaving a balance due from the plaintiff to the defendant, of 4541. 2s. 91d.

On further directions, in July 1837, it was declared, that the sum of 3241., the amount of the plaintiff's taxed costs, should be added to the sum of 2,5097. 19s., due from the defendant to the plaintiff, and an account was directed to be taken of the rents and profits received by the defendant of the estate in question, which the Master afterwards found amounted to 299l., and this sum and the amount of the costs being deducted from the amount found due from the plaintiff to the defendant, left a balance of 1691. 5s. 43d. due from the defendant to the plaintiff. The Master's report was confirmed, and the subsequent costs of the defendant were ordered to be added to the amount found due to the plaintiff, and the provisional assignee of the defendant was ordered to convey the estate, and his costs were to be paid by the plaintiff, and added to his debt.

In the progress of the suit, the defendant, for securing the 4207., had also delivered to the petitioner, his solicitor, various deeds and documents relating to the copyhold estate in question. The petitioner, by his petition, prayed, that he might be declared to have a lien on the copyhold estate, by virtue of the deed of April 1834, and the deposit of the other deeds, and that, if necessary, an account might be taken of what was due to the petitioner, and that the provisional assignee and the defendant might be restrained from surrendering the estate to the plaintiff, until the petitioner had been paid.

Mr. Pemberton and Mr. W. C. L. Keene, in support of the petition.

Mr. Hayter, contrà.

Mr. Reynolds, for the assignee of Watson. For the petitioner it was contended, that he had a lien for his costs upon the balance of 4541., originally found due to the defendant by the Master's report, or at least upon the balance ultimately found due to the defendant, before deducting from such balance the plaintiff's costs. It was also

contended, that if the plaintiff's right of setting off the costs had originally a priority over the lien of the defendant's solicitor, yet that by lodging the detainer against the defendant, the plaintiff had elected to take satisfaction against the person of his debtor, and had thereby waived his right of set-off. The petitioner also relied on his deed of covenant.

On the other hand it was contended, that the solicitor's lien extended only to the balance ultimately found due to the defendant, and could not interfere with the plaintiff's right of equitable set-off, for the costs due to him from the defendant;that the account of December 1836 was incomplete; and that, therefore, no such balance as 4541. really existed at that time. As to the deed of covenant, it could not affect the question, being executed pendente lite.

The following cases were cited:

Doe dem. Swinton v. Sinclair, 5 Dowl.
P.C. 26.

Jones v. Turnbull, ibid. 591.
Howell v. Harding, 8 Taunt. 362.
Harmer v. Harris, 1 Russ. 155.

Mar. 2.-The MASTER OF THE ROLLS.The principal question is, whether the lien of the solicitor is to enter into conflict with

the equities between the parties, or whether, in a case where costs have been awarded to the plaintiff, and a debt found due from him, he could on further directions be allowed to set off the costs, without regard to the lien of the solicitor. Another point was, whether the deed of covenant of April 1834, could affect the rights of the parties; and I am of opinion, that the deed cannot affect the rights of the plaintiff in this cause. There was also this question arising out of the attachment, whether the party having thought fit to follow a personal remedy, is entitled to resort to his lien. His Lordship said, he would give the points his further consideration.

April 6. The MASTER OF THE ROLLS (after stating the circumstances of the case and the points argued,) said that on looking at the cases, it did not appear that the Court allowed the solicitor's lien to interfere with the equities between the parties, and that the plaintiff was, therefore, entitled to the set-off, if his right had not been prejudiced by lodging the attachment; and it appeared to him, that this circumstance did not deprive a party of any lien or right of set-off; and he was, therefore, of opinion, that this petition must be dismissed, with costs,

Petition dismissed.

}

BALLARD v. CATLING.

M.R. May 10. Pauper-Costs.

A plaintiff, who had obtained an order to sue in formâ pauperis, held to be liable to pay dives costs, he not having served the order on the defendant.

Mr. W. C. L. Keene, on a former day, moved to dismiss the bill for want of prosecution.

Mr. Chilly, for the defendant, undertook to speed, and, as a defence against the costs, he stated, that the plaintiff had obtained an order to sue in formá pauperis. It was then a question, whether this order had been served or not; the case stood over for inquiry, and it was afterwards found that it had not.

Mr. W. C. L. Keene, on this day, applied for the costs of the motion, on the ground that an order obtained ex parte was a nullity until served.

The MASTER OF THE ROLLS, on that ground, held that he was entitled.