those cases where Courts of Equity have given effect to charges for payment of debts, as in Ball and Harris (4 My. & Cr. 267), and Bailey v. Ekins (7 Ves. 322), they constitute themselves trustees to carry out the intention of the testator. What is done, is done in aid, not in consequence of the will-the court carries out the object of the testator-but does not create the charge; and entirely in accordance with this view, are the observations of Baron Lefroy in Hunt v. Bateman (p. 383)—"In my opinion, the fact of charging a sum of money upon land, neither creates an express trust within the meaning of this act, nor, if it did, would a bill to raise it come within the provisions of the 25th section, respecting express trusts;" and he cites the opinion of Lord Eldon in Bailey v. Ekens, where he says, "I am confident that Lord Thurlow's opinion was, that a charge is a devise of the estate in substance and effect, pro tanto, upon trust to pay the debts,”—and, "a mere charge is no legal

interest,"-"it is that declaration of intention on which a Court of Equity will fasten." And Sir E. Sugden, in 3 Vend. & P. 160, says, "In the case of a charge, the trust arises by construction of Equity, whereas in the case of a conveyance or devise, it is produced by the express declaration of the party." In the Commissioners of Charitable Donations v. Wybrants (2 Ion. & L. 191), he observes, "in the case of the Attorney-General v. Persse, I did not decide that if an estate be devised to A, subject to an annuity to B., A. is a trustee for B.;" and, in the latter part of his judgment, he says, "It is not a case in which the annuities were given to trustees for the charities, and the estate itself, subject to the annuities, was given to others beneficially. If that case should arise, it would be more difficult to relieve." I cannot find any satisfactory authority to shew that a devise to a party beneficially, subject to the payment of debts, creates the relation of trustee and cestui que trust between the parties, so as to take the case out of the operation of the statute; even in the case where there is a trust under the 25th section, it may be found that the Court of Exchequer may have considered that more settled than it in reality is. The argument that the statute does not apply where there is a trust, goes too far; for thus, in no case of trust can a debt be barred. Being of opinion that this debt is barred by the operation of the statute, it is unnecessary for me to give any opinion as to the admissibility of the evidence tendered to prove the debt as subsisting in 1811, or on the case of adverse possession made by the heir-at-law, against whom I dismiss the bill with costs, but, in consequence of the conflict of authorities, without costs as against the devisees.

and necessarily incurred, and the costs of the defendants properly and necessarily made parties in his suit, and to which he would be liable, the plaintiff is personally liable, under this order, to pay the costs of such defendants, who are not obliged to wait until funds are realized in the cause that continues.

This was an appeal from an order of the Master of the Rolls (ante, p. 78). Four different creditors' suits having been instituted in the order in which they appear above, and a decree having been made in the fourth cause, by order of the 23rd of June, 1848, it was ordered, that all further proceedings the terms of the plaintiffs in those causes respecin the other three causes should be stayed, upon tively, being at liberty to come in and prove, under the decree in the cause retained, for the amount of their respective demands, together with their costs properly and necessarily incurred, and the costs of the several defendants in the three other causes repectively, properly and necessarily made parties in those causes respectively, and to which the liable. Menus O'Keefe, a defendant in the cause plaintiffs in those causes respectively would be of Tangney v. Holmes, afterwards applied to the plaintiff, Tangney, for the payment of his taxed costs in that suit, who refused to pay them, contending that he was not personally liable for them under the order of the 23rd of June, and that the the decree in the cause that proceeded. O'Keefe thereupon applied to the Master of the Rolls for 12th December, 1848, the Master of the Rolls an order for payment of these costs, and on the made an order for their payment within a week, deciding that the plaintiff was personally liable.

defendant must wait until a fund was realised under

order appealed from is founded on two decisions, Francis Fitzgerald, Q.C., for the plaintiff. The Croker v. Copley (2 Moll. 469), and Loftie v. Forbes (2 Ir. Eq. 443), decided on the authority of the first case. difference between that case and the present; there, But there was this important Chancery-here they are both in Chancery; and one cause was in the Exchequer and the other in the Master of the Rolls, in Croker v. Copley, gave his judgment on the ground that the defendant had where the suit was retained, and that consequently, no remedy for his costs in the Court of Exchequer, unless the plaintiff paid them, they would be lost; and the whole of the judgment shews how much he felt the stringency of the rule he was prothere the suit stayed was the second suit, here it is nouncing. There is also this other difference, that the first. also the second one. In Croker v. Copley the suit stayed was The Master of the Rolls, in that case, says, 66 Every suitor who comes here for relief, necessarily makes himself liable to the rules and practices of the court. One of the rules is, that where two suits are instituted, and a decree has been pronounced in one of them, under which the plaintiff in the other can have effectual relief, the court will stay the proceedings in the second cause, and oblige the plaintiff to prove his demand under the decree in the first." Until Croker v. Copley, no case decided that the plaintiff in a stayed suit should be liable, personally, to pay the

costs of defendants. Is it possible to sustain the proposition, that though a suit is stayed without the default of the plaintiff, whatever may be the priority of a defendant, and whether the fund be deficient or not, you should give him the first pay ment out of the fund. There is no authority in the Court of Exchequer here, or in England, for this order. In Crofts v. Poe (3 Ir. Eq. 151), the decree ordered a defendant to have his costs against the plaintiff, and the plaintiff to have them over against the fund; and it was held that the costs were given against the plaintiff only as an ultimate security, and that they were not to be enforced against him, unless it appeared that there were no funds in the cause applicable to their payment, or that the plaintiff was guilty of laches in prosecuting his suit. Suppose the order of the 23rd of June had been in the form of that in Crofts v. Poe, the effect would have been that the relief against the plaintiff would have been secondary, and not primary. If the practice of the Court was to make the plaintiff liable in the first instance, why was not the order of June in that form, and what was the necessity of having a second motion involving additional costs? Where is the jurisdiction of this court to award costs before the final hearing and disposal of the case? I admit it may be done by way of punishment, where there has been any misconduct on the part of the plaintiff'; but here the plaintiff is in no default: the suit was stayed against his will, and it is sufficiently plain that in the ordinary course the defendant, to get his costs, must have waited for a decree in the stayed suit, and if Crofts v. Poe be an authority, he must have waited further till the fund was realised. Hall v. Hill (5 Ir. Eq. R.) is an authority to the same effect. (Lord Chancellor.-I am informed the practice is, that in the ordinary decree where the plaintiff is ordered to pay a defendant's costs, and to have them over against the fund, the plaintiff pays them at once. Has the court jurisdiction to dispose of the costs of a suit in this manner on summary motion ?

Gibbon and Chatterton for the defendant, O'Keefe, who obtained the order-Where a plaintiff files his bill before he is entitled to do so, he must take the consequences. Here the bill was filed immediately after the death of the debtor, before probate was taken out, and while there was no personal representative; and the consequence of his precipitation is, that his suit was properly stayed by another person who had obtained a prior decree. It is admitted on the other side that all the authorities are in our favour, and the only difference between Croker v. Copley, and Loftie v. Forbes, and the present is, that in our case the suit stayed is the first cause, in these cases they were subsequent. But that is disposed of by the case of Hill v. Averell, (6 L. R. N. S. 21.) On principle, independently of authority, this order should be sustained. The defendant looks for his costs of suit to his own plaintiff, who is liable to pay them, if the defendant has been improperly made a party. And, if the plaintiff fails to go on, the defendant has a right to dismiss the bill for want of prosecution; but, when a suit is stayed, he cannot do

so, if the costs are paid by the plaintiff. In Croker
v. Copley the bill was not stayed for the plaintiff's
own benefit.
As to the question of hardship, the

balance is in favour of the defendant. The plaintiff
comes in voluntarily, the defendant involuntarily.
The order is to pay these costs, which the plaintiff
is properly liable to pay. If the defendant is im-
properly made a party, and he was obliged to wait
till the plaintiff files his charge, if there is no fund
to pay it, the defendant would lose his costs.
(Lord Chancellor.-How does the order provide
for the costs of incumbrances which are not properly
payable by the plaintiff.) They are not provided
for by the order. Another hardship is, that the
defendant cannot file a charge except through the
medium of the plaintiff in the stayed suit. (Lord
Chancellor. The next question is, in what right
the defendant is entitled.) He is either a mere
party on account of title, and the plaintiff must in
that case pay him his costs, and have them over,
or he is the heir at law of a prior mortgagee, whose
costs must be paid by the plaintiff, as he will be
obliged to redeem him.
Unless the plaintiff is
personally liable, the defendant may never get
these costs, although they may be all paid to the
plaintiff. In a creditor's suit, the plaintiff does not
get his costs unless the fund reaches his demand.
Gray v. Crawford, (1 Ir. Eq. 274).
McO'Boy replied.

LORD CHANCELLOR.-I am of opinion that this order should be affirmed. I think the proper way to consider this petition is to look at what is the position of the defendant here, whose costs are in question, and what would have been his rights as to these costs, if the cause that was stayed came to a hearing. It is plain that the order would have been that these costs should be paid by the plaintiff, who would have them over against the fund; or the plaintiff, being entitled to redeem the defendant, and failing to do so, he would have been bound to pay these costs without having them over. That is the position of the parties if the cause had come to a hearing. Then the staying order in this case is the same in effect as if both causes had come to a hearing, and as if an order had been made in one cause staying the proceedings, in the other giving the parties in the stayed suit all the advantages which they would have had if the stayed cause had gone on. The order gives the plaintiff a right to prove his demand in the cause that proceeds. It also gives him the power to add to his demand the costs of all defendants properly made parties, and to which he is liable. It stops short of an actual order on the plaintiff to pay these costs; but the manifest intent of the order is, that the plaintiff is to pay them, and to have them over. There is no mode of giving this defendant a right to costs out of the estate. I do not look upon that order simply as a staying order, but as substantially a decree in the stayed suit. The plaintiff then gains a decree precisely on the same terms as if his own cause went to a hearing. He is, in fact, in a better position than if that suit went on, for he gains an earlier decree, and is saved from the payment of the defendant's subsequent costs; and if he is at all injured, he has

benefit of the infant and on his behalf, the court
will support her acts, Long v. Myles (Fox & Sm. 1);
Duncan v. Couch (1 Ir. Čir. Rep. 573). (Black-
burne, C. J.-I do not think it is for the benefit
of the minor that any one should act for him with-
out legal authority.) There was a demise in the
name of the lessor of the plaintiff, and another in
the name of his mother, as his guardian and next
friend. A notice to quit may be given by the
Receiver appointed by the Court of Chancery,
Doe v. Reade (12 East. 57); also by the steward
of a corporation, Roe v. Pierce (2 Campb. 96).
There was evidence in this case from which the
jury might have inferred that the mother had an
implied authority from her son to act on his behalf,
and that question ought to have been submitted to
them, Doe and Maine v. Walters (10 B. & C. 626).
(Moore, J.-An authority may be implied to have
been given by a person who had power to give
authority, but a minor cannot authorize another to
serve a notice for him.) (Blackburne, C. J.
It is the province of the Judge to see that there is
some specific evidence which would enable the jury
to form an opinion upon the subject.) The defen-
dant has adopted the acts of the mother, by having
paid rent to the agent appointed by her.

Lynch, in reply, was not called on.
BLACKBURNE, C. J.-We think there was no
evidence in this case to go to the jury of any
authority in the mother to act on behalf of the
minor. She was neither a guardian appointed
by the Court of Chancery nor a testamentary one.
We must, therefore, regard her as a mere stranger;
and I cannot conceive anything more injurious to
the tenantry, and to the proprietor of an estate,
than that a person should undertake the manage-
ment of it without being legally authorized.
MOORE, J., concurred.*

Cause allowed.

on by notice to issue their warrant, and, having refused to do so, it became necessary to apply for the mandamus to compel them.

PER CURIAM. The merits are entirely with the company; the plaintiff asked for more than he was entitled to, and ought not now to get the costs of the mandamus. Motion refused.

EXCHEQUER OF PLEAS.-HILARY TERM.
KINNEARS v. EVANS.-Jan. 31.

Plaintiff allowed to amend his bill of particulars
after an abortive trial, on terms.

Sir C. O'Loghlen moved, in this cause, that the plaintiff be allowed to amend his bill of particu lars, by the insertion of an additional item of £22, which had been omitted by the mistake of the Dublin agent of the attorney for the plaintiff. The declaration had been filed in Trinity Term, and a bill of particulars, containing one item, had been furnished. Plea-the general issue. The cause went down for trial to the last Cork Summer Assizes, when the jury disagreed.

Joseph H. Reeves, for the defendant, resisted the motion, on the ground that costs already incurred by the abortive trial would be costs in the causethat they ought to abide the result of the plaintiff's succeeding on the original item only, but that if the new item were introduced, the plaintiff might possibly recover that, and be defeated upon the original one, in which case he would obtain those costs, although he was defeated on what was the subject matter of the former trial.

PER CURIAM-Let the plaintiff be at liberty to amend his bill of particulars as desired, upon the terms of said defendant's being at liberty to plead anew, if so advised, filing his plea within ten days from the date hereof, and being at liberty to lodge money in court, as of the day subsequent to the

O'DONNELL v. Waterford and LIMERICK RAIL- filing of the declaration in this cause, and if the

WAY COMPANY.-Jan. 29. Mandamus-Railway Company-Costs. Where plaintiff obtained a mandamus to compel a railway company to issue their warrant to a sheriff, to summon a jury, to assess the amount of compensation to which he was entitled; and the jury afterwards awarded him a less sum than the company had previously offered. Held that he was not entitled to the costs of the mandamus. This was an application on the part of the plaintiff, that the defendants might be directed to pay the costs of a mandamus which had issued to compel them to summon a jury to assess the amount of compensation to which the plaintiff was entitled for a portion of his land which was purchased by

the company.

Meagher for the motion.

Lawson, contra.- The plaintiff demanded £1,000 for his interest; the company offered him £650, and the jury assessed the value at only £500. The result of the proceedings, therefore, being unfavourable to the plaintiff, he is not entitled to have the costs of the mandamus.

Meagher, in reply.-The company were called

* Crampton and Perrin, J. J., were absent.

said plaintiff shall, upon the trial of the issue in this cause, obtain a verdict only for the cause of action hereby introduced into the said bill of par ticulars, that he shall not have any costs of the former trial; but, in that case, the said defendant shall be taxed and allowed his costs of said former trial without further motion, and said plaintiff to pay the costs of this motion to defendant.

DOE v. O'BRIEN. Practice-Service of Ejectment on Married Women. If a party treats a married woman as a feme sole, by serving her with an ejectment, the court will not set aside a defence taken by her accordingly. Saunders moved to set aside a defence which had

been taken by one of the parties served with the ejectment, on the ground of her husband being alive. The affidavit on which he rested his application stated that the husband of the defendant emigrated some time previously to America, and was alive, according to information recently re

ceived.

PIGOT, C. B. Having treated her as a feme sole, by serving her with a copy of the ejectment, you cannot prevent her from taking defence.

No rule on the motion.

ROLLS COURT. of those bills, and his solicitor then attended; there was then no allegation that A. H. Graydon was the M'ALPINE v. ST. GEORGE.-Dec. 21. holder of the bills, and this motion was on the 8th of Attachment-Third Party-Rents. September, three months after their maturity. If the court have not jurisdiction in this case, there When an order has been made for the appointment is an end to the protection to which tenants of the of a receiver, an attachment will be granted estates under its control are entitled; but it has against a third party, who, before service of the never been doubted that this court has jurisdiction order on the tenants, interferes with the rents, to attach any party who interferes with tenants when he has notice of the order for the appoint-after the appointment of a receiver. ment of the receiver.

F. Fitzgerald, Q.C., appeared for the plaintiff in the cause.

Radcliffe, Q.C., contra, denied the jurisdiction of the court to interfere with the rights of A. H. Graydon. He is a holder for value, and it is sworn that these securities were taken before the order for the appointment of the receiver; and though T. H. Graydon might be bound by that order, A. H. Graydon could not be bound by it, for he swears he was ignorant of these proceedings, and that he paid full value for these securities; but even T. H. Graydon ought to be considered entitled to hold these securities under the circum. stances of the case, for he had received them before the order for the appointment of the re

This was a motion for an injunction to restrain Alexander Graydon from negociating, or suing upon certain bills of exchange obtained by T. H. Graydon from the tenants of the defendant, and for an attachment against the said A. Graydon, for his contempt of a certain order pronounced by the Lord Chancellor, on the 9th of September, 1848, whereby the said Thomas H. Graydon was directed to furnish to the receiver in this cause a schedule of the particulars connected with the said bills. Thomas H. Graydon, who had been the agent of the defendant, took bills of exchange and promissory notes from the tenants, for arrears of rent. The affidavit of the receiver stated that he believed those securities were obtained after the order ap-ceiver. pointing the receiver was made that the order of reference was made on the 16th of February, 1848, and the receiver appointed on the 24th of March following. On the 26th April, an order was made directing the defendant to furnish a rental, which was furnished on the 31st of May, and shewed an arrear of £606 19s. 11d., up to the 1st November, 1847-that on going to the lands, he was informed by the tenants that they had given bills of exchange or promissory notes, dated March, 1848, either to the defendant, St. George, or to T. H. Graydon-ment. The assertion that the court wants juristhat the said securities were obtained by Graydon with the privity of St. George, and as his agent, and that there was an agreement with the tenants that they were not to be called on for the amount of the said bills that the receiver, on inquiry from the tenants, ascertained that bills were passed to T. H. Graydon for £1,000, which included the arrears of £606 returned on the rental-that the securities were passed by Graydon to other parties to recover the amount, and that Graydon was aware of the order of 16th February, 1848, when he obtained these securities from the tenants.

The affidavit of A. H. Graydon stated, that he had obtained these bills bona fide, and that they were indorsed to him, previous to their maturity, by Thomas H. Graydon, who was indebted to him in a sum of £1,000, advanced by said Alexander H. Graydon to his father, for the purpose of paying a bond for that amount which was passed by his father to Mr. Billing, the solicitor for said Thomas H. Graydon-that the proceedings to recover the amount of these securities by civil bill at the Quarter Sessions, in the name of Thomas H. Graydon, was without his consent or privity.

Hughes, Q.C., for the motion. In no part of the affidavit of A. Graydon does he deny his knowledge of the appointment of the receiver, and that the bills were received from the tenants of the court. On the petition motion before the Chancellor, T. H. Graydon was the admitted holder

Mr.O'Driscoll in reply.-An executory agreement of the kind which is stated to have existed between the inheritor and Mr. Graydon cannot attach the rents in the hands of the tenants. The rule that rents are not considered to be attached till the service of the order, is one purely for the protection of the tenants, but does not apply to third parties, who, from the moment they are fixed with notice of the appointment of the receiver, cannot interfere with the rents under pain of an attach

diction in this case is untenable, for it can attach the tenants for non-payment of their rents to the receivers, and, if so, on what principle is it contended that it cannot reach third parties, whose interference with the rents is a direct contempt of the order of the court. Mr. Graydon cannot be injured by the injunction we seek for; he is clearly incapacitated from recovering the amount of these bills at law, inasmuch as they appear to have been indorsed to him after maturity, and the infirmity of title which attached to them in the hands of T. H. Graydon follows them into the hands of Mr. Alex. Graydon, but the court in an instance of this kind will protect the tenants from being forced to the expensive alternative of making separate defences at law.

MASTER OF THE ROLLS.-I allowed this case to stand over for the purpose of giving Mr. Graydon an opportunity of explaining the case made against him; his affidavit has failed in doing so. Although the tenants may, as has been stated, have a good defence at law, I cannot permit them to be harassed by proceedings of that kind. I have no doubt as to my jurisdiction in this case. I find it laid down in Mr. Smith's book, that "the court will attach third parties who interfere with the rents after they are aware of the appointment of the receiver. I shall state upon the face of the order my reasons for granting it. "And it appearing to the court that Alexander H.