This case, however, does not appear to me to involve that question. There are two points in it-one as to the balance due to Mr. Ellice down to 1841, and the other as to the balance due to Mr. Forsyth. The objections to the allowance of these balances rest on different grounds. The objection urged against the claim of Mr. Ellice is, that the sums allowed consist in part of sums which were ordered to be paid and have been paid to the tenants for life of the property, and that as to these sums there could be no lien on the corpus. The first answer to this objection is, that the accounts of Mr. Ellice were passed in the Master's office till 1830, when Mr. Ellice was discharged from the receivership, with liberty to apply as to the balance due to him, and that the attempt now made to dispute that balance, is, in fact, an attempt to open all those accounts which were passed and settled in 1830. It is objected, however, that the persons interested in the corpus were not allowed to attend when those accounts were passed. It may have been so, but I do not think that they can on this ground apply to the Court at any distance of time to open the accounts. If it was wrong to direct the accounts to be taken without their attendance they ought at that time to have had the matter set right. Independently, however, of the length of time which has elapsed, the payments have been allowed by the COURT itself, and, therefore, if there has been a breach of duty, it has arisen from the act of the Court and not from that of its officer. The officer cannot be left without indemnity in respect of his acts, unless they have not been warranted by the orders of the Court. I think that here the consignees were well warranted in making the payments, and therefore, without reference to any rights peculiar to a consignee, and independently of the general question as to such rights, Mr. Ellice's balance must be paid out of the compensation money. The objection taken to Mr. Forsyth's claim is, that in 1837, four years before he became consignee, the compensation monies were severed from the rest of the estate and paid into Court, and that he, therefore, could have no lien upon them. That is one view of the case, but it is a partial view. The Court has represented the whole estate, and has stood in the position of a trustee of it, and the consignee was the paid agent of the Court to manage the estate which was in the Court's hands. The monies due to the consignee are monies due to the Court itself, and as the Court has in its hands monies belonging to the estate, on account of which it has made the payments, it must have a right to repay itself its advances out of these monies. This right has priority over the costs of suit, for as to a fund in the hands of a trustee his expenses must be the first charge on the fund. These grounds seem to me to free the case entirely from the general question of the lien of a consignee of a West India estate. The appeal must be dismissed, but without costs. YEATES . ROBERTS. (7 D. M. & G. 227-229.) [A note of the report of this case in the Court below will be found in 106 R. R. 307 (3 Drew. 170). This appeal was dismissed with costs.] HUGHES v. PARAMORE. (7 D. M. & G. 229-238; S. C. 24 L. J. Ch. 681; 1 Jur. N. S. 1101; 3 W. R. 388.) The suit was an ordinary one for the administration of the estate of Dr. Hughes, the testator in the cause, [who died in 1847,] and by the decree the usual inquiry had been directed as to the testator's debts. Under this decree the respondent, [Robinson,] who was a solicitor, went in before the Master and claimed to be a creditor of the testator upon a general account, which [commenced in 1834 and contained a number of items on either side, terminating in June, 1845]. It appeared by the evidence, that prior to 1834, the respondent and the testator had been engaged in some building adventures, and that in 1834 the testator furnished some bricks to the trustees of a chapel in his neighbourhood, on the respondent agreeing to pay for them. In 1845, the testator signed the following memorandum relating to this transaction: "It is agreed that Mr. Robinson, in his general account, shall give credit to Dr. Hughes for 174l., being for bricks delivered to the trustees of Park Place Chapel, Toxteth Park, in 1834. Dated the 5th of September, 1845. "JOHN HUGHES." A duplicate of this memorandum was signed by the respondent. No account had been delivered or made out between the respondent and the testator, but the above memorandum was relied upon by the respondent, as an acknowledgment in writing taking out of the Statute of Limitations all the intermediate debts. The Master did not take this view of the case, and [in his report he] only allowed the debts which had accrued within six years prior to the testator's decease. * * The respondent, by leave of the COURT, filed four exceptions to this report, all of which the VICE-CHANCELLOR allowed. The plaintiffs and defendants appealed. Mr. Amphlett and Mr. Rose, for the appellants: * * The memorandum was merely *intended to acknowledge that the bricks would be properly charged against Mr. Robin son. * * Mr. Wigram and Mr. Charles Hall, for the respondent: The memorandum is an acknowledgment that the bricks were delivered as a part payment, and is sufficient to take the case out of the statute. Mr. Amphlett, in reply. [A number of cases were cited on either side, but none of these cases were referred to in the judgment.] THE LORD JUSTICE KNIGHT BRUCE: With regard to the whole period of six years next before the testator's death, the counsel agreed that no question should be made, and the only point therefore for decision is as to the effect of the paper of the 5th of September, 1845. It appears that when that paper was written, the position of Dr. Hughes and Mr. Robinson was this: They had been engaged in a joint undertaking or adventure connected with building, which had terminated in the year 1834, as I understand; that is to say, considerably more than six years before the date of the document. There had not therefore, within six years before it was signed, been any joint adventure or undertaking, or any connection in the nature of a partnership between the two gentlemen. One was a solicitor, and the other a medical gentleman. Upon the dealings between them, it may safely be assumed, I think, that each was a debtor and each was a creditor. The great probability is also that the sums of debit and credit on each side were not so exactly even as not to leave, upon the ultimate balance, a sum due from one of them to the other as the result of the accounts. But, at this period of 1845, no account had been rendered. There was nothing in the nature of an account between them, except that which was the necessary result of the position in which they stood towards each other, of each owing the other money as I have said. It seems that a question had arisen between them respecting HUGHES 2. PARAMORE. [233] [ *234 ] [235] HUGHES v. PARAMORE. [ *236 ] [ *237 ] certain bricks delivered in some manner in or before the year 1834, as I collect, and therefore much more than six years before the document was *signed. With a view, as I infer, of settling that question, the document is signed by them both, and signed substantially in duplicate; for although there is a difference between the two papers, the difference is immaterial. (His Lordship read the memorandum above set out.) It is said that this document not only acknowledges the bricks. as equivalent to a payment in 1834 on account of the debts between the testator and the respondent, but makes the transaction equivalent to a payment in the year 1845. To that I cannot agree. I apprehend that the effect of the document, in this respect, was merely to cut away all ground of question as to the propriety of such an item of debit or credit standing in the accounts as of the date of 1834. Therefore payment for any purpose material upon the present occasion, I apprehend, could not well be. I think that it was neither payment, nor anything equivalent to payment for any such purpose. But then it is said that, as the paper uses the words "general account," it is equivalent to an acknowledgment of all the items that either of them was capable of bringing against the other in their books or otherwise (although there was no account delivered, and although there was no document that could be called a general account), and that this therefore is equivalent to a promise in writing to pay the balance upon the general account whatever it might be. I cannot so view the matter. I apprehend that it would be substantially equivalent to a repeal of Lord Tenterden's Act to give that effect to it. "In his general account" means merely this, that whatever our accounts may happen to be,-whatever may be the state of demands between us, Dr. Hughes is to have credit for the sum mentioned. That effect is not denied, and no other effect could it, in my opinion, have. The account therefore to be directed must, I apprehend, be of what (if anything) is due in respect of any transactions within six years before the death of the testator. Coming to this conclusion, I desire not to be understood as giving an opinion upon any of the cases that have been cited. THE LORD JUSTICE TURNER: I think also that in this case there is no such payment or acknowledgment as can take the case out of the operation of the Statute of Limitations. To treat the sum of 1741. as a payment by Dr. Hughes to Mr. Robinson it must of course be assumed that the 1747. was due from Dr. Hughes to Mr. Robinson at the time. of the payment, but the account shows that no such sum was or could be due at that time. Besides if the 174l. is to be taken as a payment, it must, as I think, be taken as a payment at the time when it is entered in the account, and not at the time when the agreement was entered into. That reduces the case to the question upon the memorandum, and I take the memorandum to amount to no more than this, namely, an agreement to take a particular item into account between the parties. What the account was, how the account stood, or how it would stand upon being taken, are matters on which the memorandum is wholly silent. Such a memorandum is not in my opinion sufficient to take the case out of the operation of the Statute of Limitations. THE LORD JUSTICE KNIGHT BRUCE: Our order will be to vary the order of the 22nd of *January last, and to direct that, as varied, it be as follows: Neither allow nor overrule the exceptions, and let an account be taken of what, if anything, is due to Mr. Robinson from the estate of the testator John Hughes, in respect of any dealings or transactions between them subsequent to the 2nd of December, 1841, and in taking the account all just allowances are to be made. The order also directed an account as to a bond debt not material to be here noticed. HACKWOOD v. LOCKERBY. (7 D. M. & G. 238.) Where a defendant had been served with the bill out of the jurisdiction of the Court where he resided, but came from time to time to England, the COURT declined to issue an attachment against him for want of appearance. ROBINSON v. ANDERSON. (7 D. M. & G. 239--242.) [A note of this appeal affirming the decision of the MASTER OF THE ROLLS will be found at the end of the report of the case below taken from 20 Beav. 98; see post, p. 362.] TURNER v. LETTS (1). (7 D. M. & G. 243-245; S. C. 24 L. J. Ch. 638; 1 Jur. N. S. 1057; 3 W. R. 494; 3 Eq. R. 846.) The solicitor of an executrix had in that character title deeds of the testator's leasehold property. He acted for the executrix in a suit instituted against her by cestuis que trust under the will. On her death an administratrix de bonis non of the testator applied for the deeds to the solicitor, and on his refusal to give them up without being paid his costs, instituted a suit against him to have them delivered up: Held, that unless the estate of the executrix was indebted to that of the testator, her estate was entitled to a lien on the deeds for her costs, and that the solicitor had (1) Ex parte Yulden, In re Austin (1876) 4 Ch. D. 129, 46 L. J. Bk. 39, 35 L. T. 720. R.R. VOL. CIX. 7 HUGHES v. PARAMORE. [ *238 ] 1855. May 8. 1855. May 24. 1855. May 25, 28. TURNER, BRUCE, [243] |