CHANCERY.

WEBSTER v. LE HUNT.

(9 W. R. 804.)

Where a solicitor agrees with his client to carry on a suit without requiring to be supplied with funds up to hearing, that means the original hearing; and subsequently to that period he has a right to refuse to proceed without funds; but he has no right to withhold the papers from another solicitor to conduct an appeal.

An order to change solicitors is the discharge of the solicitor by the client.

GLASSE, Q.C., moved in this case that Mr. Maniere, formerly solicitor to the defendants, might hand over the papers to the present solicitor, Mr. Barton, appointed under an order to change solicitors, without prejudice to his (Mr. Maniere's) lien, and on the undertaking by Mr. Barton to deliver them back when an appeal, which had been entered, was heard. It appeared that in 1857 Mr. Maniere agreed to carry on the business of his clients without requiring any funds for the purpose, till the hearing. A decree was made in June, 1880, and in June, 1861, the defendants appealed. Mr. Maniere then said he should allow the appeal to go by default unless he was supplied with funds to carry on the case. Mr. Barton, who had consented to act as solicitor for the defendants, formerly Mr. Maniere's clients, then wrote to him, saying that he hoped he would let him have the papers, as he (Mr. Barton) would undertake to pay whatever was right in case he objected to attend, &c. An interview took place, but Mr. Maniere refused to do what he was asked. This motion was then made.

Chichester, for Mr. Maniere, opposed the motion.

Authorities cited: Heslop V. Metcalfe (1), Colegrave v. Manley (2), Bozon v. Bolland (3).

KINDERSLEY, V.-C., said that the word "hearing" must be understood to mean the original hearing, and not the appeal, and therefore Mr. Maniere had a right, after the original hearing, to refuse to go on without funds. With respect to the papers, if a client, under those circumstances, found another solicitor who would act for him, the former solicitor had no right, by withholding the papers, to prevent the course of justice, although he had a right to his lien, whatever it was. order to change solicitors was a discharge by the client, and under the circumstances the order asked for ought to be made -viz., for the delivery of the papers, without prejudice to Mr.

(1) 45 R. R. 248 (3 My. & Cr. 183). (2) 24 R. R. 83 (1 T. & R. 400).

The

(3) 48 R. R. 121 (4 My. & Cr. 354).

1861. July 11.

KINDERSLEY,
V.-C.

[ 804 ]

Maniere's lien, on the undertaking to restore them when the appeal was disposed of; the order to be in the usual form, whatever that was.

IN RE MARRIAGE.

EX PARTE THE LONDON, TILBURY, AND SOUTHEND
RAILWAY COMPANY AND EASTERN COUNTIES
AND LONDON AND BLACKWALL RAILWAY

COMPANY.

(9 W. R. 777, 843—844.)

A Railway Company having taken lands under their compulsory powers, and paid the deposit into Court, may take a transfer *of a mortgage on the land and recover the deposit by virtue of it.

THIS was an appeal from an order of Vice-Chancellor KINDERSLEY [on the application by petition of Thomas Wrightman for payment out of Court of 3831. 8s. 11d. paid in by the Eastern Counties and London and Blackwall Railway Companies. The case is reported before the Vice-Chancellor in 9 W. R. 777, where the facts are stated as follows]:

In October, 1856, the above Companies, who were joint proprietors of the London, Tilbury, and Southend Railway, gave notice to Francis Marriage, who was the owner of certain land in the town of Leigh, in Essex, that they required a portion of his land, of which he claimed to be freeholder, subject to two mortgages to Thomas Chalk and William Alfred Hardcastle respectively. They subsequently required another piece of land, and inasmuch as the railway would divide the land from his house, he required them to make a communication across the line. They then offered to purchase the land so cut off, and that question was tried at law and carried to the House of Lords, by Marriage; but it was decided that they had the right to purchase (1). The deposit money was paid into Court in the usual way, and a jury having subsequently assessed the value at 3831. 8s. 11d., that sum was paid into Court, and the deposit paid out on application of the Company; but in that order, which was made by Vice-Chancellor WooD, the Company were put under the terms of abiding by such order as the Court might make. They subsequently took an assignment [from] the petitioner of the two mortgages, which extended over the lands taken by the Company and other lands, and now presented a petition by the petitioner, their nominee, praying for payment out to them of the purchasemoney so paid in.

Ferrers appeared in support of the petition.

Francis Marriage appeared in person, and opposed it.

(1) 4 Jur. N. S. 116, 117.

the

The VICE-CHANCELLOR refused the application.

[On the appeal,]

Ferrers, and Bathurst, in support of the petition.

Francis Marriage, the owner of the land, opposed in person; and disputed the Company's title to the land as well as to the mortgage on various grounds.

KNIGHT BRUCE, L. J., said, that if Mr. Marriage had consented to the money being paid to the Company without prejudice to any question as to the mortgage, it would have removed all difficulty. But Mr. Marriage wholly denied the title of the Company to the land in question. The Company had alleged two titles to the land, one by virtue of the mortgage which had been assigned to them, and the other by means of their purchase under the powers of the Railway Act. Their title as mortgagees or as assignees of a mortgage was proved, and their title to the land under the Railway Act seemed to him, as far as he could judge, to be good. But supposing their title to the land to be bad, and that they had not acquired the land under the Railway Act, then they would be entitled to the money in question, as having been paid into Court without consideration, without having acquired any title to the land. It seemed to him plain that either in their character as assignees of the mortgage, or as purchasers under the Railway Act, or as having paid the money into Court without consideration, they were entitled to receive the money back.

TURNER, L. J., said, that he was entirely of the same opinion. He did not think that a person coming to the Court alleging that he had title to land, but not showing any such title, could resist the claim of a mortgagee to have the money paid out to him. He thought such person must show something like a claim of title to the land, in respect of which the money was paid in. The money was paid in under the 76th section, and the 78th section was as follows: Upon the application by petition of any party making claim to the money so deposited as last aforesaid, or any part thereof, or to the land in respect whereof the same shall have been deposited or any part of such lands, or any interest in the same, the said Court of Chancery in England, or the Court of Exchequer in Ireland, may, in a summary way, as to such Court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof, according to the respective estates, titles or interests of the parties making claim to such money or lands, or any part thereof, and may make such other order on the premises as to such Court shall seem fit." That

In re MARRIAGE.

[844]

In re

in his view of the question left a discretion in the Court as to MARRIAGE. the mode in which the money should be dealt with, and he considered that in all such cases where the circumstances would admit, the Court would give effect to the rights of the parties. If Mr. Marriage contended that the Company had no title to the land, and the money was wrongfully paid in, then he could not object to its being returned to them. The order would be to pay the money to the Company without prejudice to any question between the Company and the Mr. Marriage.

1861. July 18.

ROMILLY,
M.R.

[ 861 ]

1861. July 27, 31.

WESTBURY,
L.C.

[ 918 ]

FALL. ELKINS.

(9 W. R. 861.)

In a suit for foreclosure and partition by the mortgagees of ar undivided share in certain property the COURT allowed a receiver to be appointed of the undivided share which belonged to the plaintiffs' mortgagor.

THIS was a suit instituted by the mortgagees of one undivided fifth part of certain hereditaments and premises against their mortgagor and the owners of the other four-fifths of the property for foreclosure and partition. The bill also prayed a receiver of the rents and profits of the mortgaged premises, or at all events, of the undivided fifth share thereof which had been mortgaged to the plaintiff.

Follett, Q.C., and W. H. Bagshawe, now moved on behalf of the plaintiffs for a receiver of the mortgaged property.

Selwyn, Q.C., T. H. Terrell, and Hardy, appeared for the several defendants, and resisted the motion:

The receiver could, at any rate, only be appointed of the un divided fifth part upon which the plaintiffs had a charge.

The MASTER OF THE ROLLS said that the plaintiffs might have a receiver of the undivided share of Mr. E. Elkins, their mortgagor. He thought they must pay their own costs, and add them to their security. The costs of the other parties to be costs in the cause. The defendants would not be allowed to object to the receiver nominated by the plaintiff, who, if he gave the proper security, would be appointed in the usual way.

WEBSTER v. LE HUNT (1).

(9 W. R. 918-919; S. C. 8 Jur. N.:S. 345; 4 L. T. N. S. 723.) The Court will only allow trustees to release themselves from responsibility by transferring trust funds into the hands of new trustees, if they have reasonable grounds for believing that the trust funds will be secure in the hands of those to whom they commit them; and in the event of a breach of trust being committed by such new trustees the

(1) See Head v. Gould [1898] 2 Ch. 250, 269, 67 L. J. Ch. 480, where some

later cases on this subject are cited.—

O. A. S.

Court will protect the retiring trustees from liability, unless they are clearly shown by incontrovertible evidence to have been guilty of negligence, misconduct, or fraud in relation to the transfer to the new trustees.

THIS was an appeal from a decision of Vice-Chancellor KINDERSLEY (1). The question in the case was whether certain trustees who had retired from a trust were liable to make good the loss occasioned by breaches of trust committed by the new trustees immediately after the trust funds had been transferred to them by the retiring trustees. The point on which this mainly depended was, whether the old trustees were cognizant at the time they so transferred the funds of the intended misappropriation by the new trustees. In 1846 Le Hunt and Wakefield, the two trustees of Mr. and Mrs. Webster's marriage settlement, having had a good deal of annoyance in connection with the trust, expressed a desire to retire. New trustees, Messrs. Defaur and Blakeney, were appointed, and Le Hunt and Wakefield transferred the fund into their names. A few days afterwards the new trustees sold out the whole of the trust fund, which Mr. Webster appropriated to his own use. The bill was filed in 1853 by the children of the marriage against the old trustees, the new trustees, and Mr. Webster, to *carry out the trusts of the settlement and compel the trustees to reimburse and make good to the trust estate the fund sold out; and for the application of Webster's life estate towards making good the loss; and for the appointment of new trustees. The bill charged that Le Hunt and Wakefield were apprized, before they parted with the trust fund, of the intended misappropriation, which they by their answer denied. There was a great deal of conflicting evidence, and an affidavit was produced of Mr. Webster (who had since died insolvent) to the effect that he had himself informed Le Hunt and Wakefield of what was intended to be done. This affidavit was not answered when the cause came on in the Court below, the plaintiffs stating that they were not aware of its existence, but its statements were denied at the Bar. The VICE-CHANCELLOR considered that, according to the weight of the evidence, the old trustees were aware of the proposed breach of trust, and that they were liable to make good to the cestuis. que trust the trust fund which had been sold out. His Honour made a decree against them accordingly.

Messrs. Le Hunt and Wakefield presented the present appeal against the decree.

Glasse, Q.C., and Prendergast, appeared for the appellants.
Baily, Q.C., and Burton for the respondents.

(1) 8 W. R. 534.