open to any doubt, the language of the statute of 9 Geo. 4 being clear and unambiguous. The Judges have not thought it necessary to trouble your Lordships with a more detailed statement of their reasons for the opinions they entertain, as the general assignments of error have been so fully, and ably, and satisfactorily discussed by the learned Judges of the Court of Queen's Bench in Ireland, and which arguments are before your Lordships. The Lord Chancellor, Lord Lyndhurst, Lord Brougham and Lord Campbell severally expressed their entire concurrence in the opinion of the Judges, and affirmed accordingly the judgment of the court below. COURT OF CHANCERY. BANKRUPTCY.-May, 23. Where the mortgaged premises were clearly insufficient for payment of the debt, on the assignees submitting, they were ordered to convey the equity of redemption to the mortgagee, in consideration of a release from the debt. The Commissioner, by memorandum of the 4th of February, 1849, had adjudged that the petitioner, Benjamin Dickson, had a good security by equitable mortgage on the estates of the bankrupt, for the sum of £5089 15s. The petitioner went into possession of the mortgaged premises. By memorandum of the 17th of January, 1849, the Commissioner ascertained to be due, on foot of the mortgage, up to the 1st of November, 1848, £6521 7s. 6d. By memorandum of the 26th of January, 1849, the Commissioner directed the assignee to inquire and state upon affidavit the nature and value of the mortgaged premises, and what sum the same would be likely to realize, if sold by auction, and whether sufficient for payment of the said sum of £6521 7s. 6d. The value was estimated at £3310. The yearly profit fell short of the interest money, and judg. ment in ejectment for non-payment of rent due before the petitioner went into possession had been obtained against two of the lots composing the mortgaged premises. The premises had been offered for sale by the bankrupt, but no bidders offered, though the interest was then more valuable. The mortgagee had incurred considerable costs in proving his claims. Mr. Armstrong, Q.C., for the mortgagee, the petitioner, moved that Bernard Mooney, the assignee, might be ordered to join as a party to, and execute a conveyance of, the equity of redemption of the mortgaged premises, in consideration of the value thereof, and of the petitioner releasing the assignee and the estate of the bankrupt. This application is in order to avoid further costs, the mortgagee having already incurred a considerable amount. Mr. Creighton, for the assignees, submitted to act as the Court should direct, in order to avoid further costs. LORD CHANCELLOR.-I think it desirable to save further expense. Be it so. ROLLS COURT. GARDINER v. Blessinton. BYRNE, Petitioner, GARDINER, Respondent April 17 & 19. Receiver-Petition-Allowance for maintenance. The Court refused to appoint a Receiver, on the petition of a judgment creditor, over an allow ance directed by the Court to be paid to the inheritor for maintenance. By order bearing date the 26th day of June, 1834, and made in the cause of Gardiner v. Blessinton, it was ordered that the sum of £600 per annum should be allowed to the plaintiff, C. J. Gardiner, for his maintenance, and that same should be paid by the receiver over the lands in the Co. Tyrone, and be in addition to the use of the house at Mountjoy Forest, and the part of the demesue then in the occupation of the plaintiff. That part of the house and demesne having been subsequently sold, pursuant to the decree in the cause, on the 19th of July, 1847, an order was made, that an allowance of £700 per annum, to commence from the 1st of January then past, be made to the said C. J. Gardiner for his support and maintenance, out of the rents of the Tyrone estates, in lieu of the mansion house and that part of the demesne of Mountjoy Forest hitherto in his possession, and lately sold under the decree in the cause. In Easter Term, 1848, the petitioner, Lawrence Byrne, obtained a judgment against the said C. J. Gardiner, for the sum of £132 7s. 9d. On the 16th of June, 1848, a writ of fi. fa. issued on said judgment, directed to the sheriff of Tyrone, and a return of nulla bona was made thereto. Byrne then presented a petition for a receiver over this sum of £700 per annum, and having obtained the usual notice order, that a receiver would be appointed, unless cause shewn, within ten days. Mr. Rolleston, Q. C, now shewed cause, and contended that this allowance was not such an annuity or rent-charge as was contemplated by the sheriff's act, or 3 & 4 Vic. cap. 105, and the Court had no authority to appoint a receiver over it. Mr. Hughes, Q. C., and Mr. H. Smythe, contra, cited Rochard v. Fulton, (7 I. E. R. 131;) Dillon v. Plasket, (2 Bli. N. S. 241;) Evans v. Blennerhasset, (1 Ì. E. R. 115; Reilly on Receivers, page 125, 2 P. W. 211;) Harris v. Davison, (15 Sim. 128.) Mr. Ryan, in reply, contended, that even if this allowance came within the terms of the statute, the petitioner was not entitled to the benefit of the 3 & 4 Vic. c. 105, as the judgment was entered in Easter Term, 1848, within a year. Smith v. Hurst, (1 Coll. 705;) Cassidy v. Hopkins, (10 I. E. R. 208.) MASTER OF THE ROLLS.-I do not think that this sum which the receiver was directed to pay Mr. Gardiner, is an annuity or rent-charge within the meaning of the acts of Parliament-the Sheriff's act, or the 3 & 4 Vic. c. 105. The Court frequently makes an allowance to an inheritor for his support, although there may not be a surplus, and I am not bound to treat that as liable to be extended at law by an elegit; nor does this case come within that part of the 21st section, which provides that the Court may appoint a receiver over property which could be made available by filing a bill. The Court of Exchequer gave a strict construction to the act of 5 & 6 W. 4, c. 55, and considered, that where a legal impediment existed to the issuing of an elegit, such as an outstanding term, a receiver ought not to be appointed, and such an application was refused, where the respondent held only an equity of redemption. This Court gave a more liberal construction, and was in the habit of appointing receivers in cases where only a temporary bar existed, which could be removed by filing a bill in aid of the execution at law; and this part of the 21st section was enacted to get rid of the difference of opinion, and put an end to the questions on which the Courts differed. But I do not think it was intended to give jurisdiction by petition, in every case in which a bill might be filed. In this case the petitioner has mistaken his remedy, for the petition should have been entitled in the cause in which the Receiver has been appointed, and prayed that he might be extended to his demand. "No rule on said petition, without prejudice to the petitioner amending his petition, if he shall be so advised, and entitling same in the cause in which the receiver has been appointed, and applying for the extension of the receiver to this matter; and let the respondent have £5 for his costs of appearing on this motion, and let same be set off against the petitioner's demand." R. P. H. B., lib. 28, fo. 320. The petitioner, Lawler, had served a notice on the respondent, Maria Lowry, and on James Scott Molloy, her provisional assignee, the respondent being an insolvent. Maria Lowry had filed affidavits to shew cause against the appointment of a receiver, but died before cause shewn. All her next of kin were in America, and she had no personal representative. Mr. Lawson, Q.C., moved to continue the proceedings against James Scott Molloy, the provisional assignee, and against the tenants of the lands, under the 5 & 6 W. 4, c.55. MASTER OF THE ROLLS.-I have no power, when there was no receiver appointed to continue the proceedings. I must, therefore, refuse this motion. I cannot continue proceedings that never existed. You must serve a scire facias on the ten nts. EQUITY EXCHEQUER.-Sittings AFTER HILARY TERM. LEVINGE v. DE MONTMORENCY. Practice-Staying proceedings-Costs of parties in stayed cause— e-Loftie v. Forbes (2 I. Eq. Rep. 443,) considered-Tangney v. Holmes, (1 Ir. Jur. 78, 125, 163,) dissented from. Where a creditor's suit, instituted in the Court of Chancery, has been stayed by reason of a prior decree to account obtained in this Court, in a cause of a similar frame and between the same parties, and the plaintiff in the stayed cause had paid the costs of one of the defendants, the Court will not order the receiver in the first cause to pay the plaintiff in the stayed cause the amount of the costs so paid, to the prejudice of prior incumbrancers. In such a case, the plaintiff in the stayed cause is personally liable to the costs of prior incumbrancers, if the fund proves deficient, and puisne creditors are only entitled to their costs in the same priority as their respective demands, but this Court will restrain the defendants from proceeding against the plaintiff in the stayed cause for their costs therein, until the fund is realised. The Courts of Chancery and Exchequer exercise a concurrent jurisdiction, and the rule as to the enforcement of costs under staying orders is the same, whether the suits are instituted in the same or different Courts of Equity. This was an application made under the following circumstances:-On the 22nd of January, 1848, the usual decree was pronounced in this cause, which was a foreclosure suit, and the usual accounts directed to be taken. Eyre and Morrogh, two of the defendants in the Exchequer cause, had, subsequently to the institution of the suit in the Exchequer, but before the decree to account, viz., on the 26th of May, 1847, filed a bill of foreclosure in the Court of Chancery against De Montmorency and others. Several of the defendants in the latter cause had appeared and answered. By an order of the 3rd of June, 1848, the Court of Exchequer restrained Messrs. Eyre and Morrogh, the plaintiffs in the Chancery cause, from proceeding, on the usual terms, that they should be at liberty to come in and prove their demand in the Exchequer cause, together with their costs necessarily incurred in the Chancery cause, with the costs of the motion, and the costs of such of the defendants in the said Chancery cause as were properly made parties thereto, in the priority of the defendants' demands respectively. By an order of the Master of the Rolls, bearing date the 1st of December, 1848, it was referred to the Master to tax the costs of the plaintiffs and defendants in the Chancery cause. Messrs. Eyre and Morrogh subsequently paid over the sum of £18 2s. 5d., being the ascertained costs of E. C. Tuthill, a defendant in both causes. The present motion was made on behalf of Messrs. Eyre and Morrogh, the plaintiffs in the stayed cause, that the receiver in the Exchequer cause should be directed to pay over to them the said sum of £18 12s. 5d., and likewise pay the several defendants in the stayed cause their respective ascertained costs in the said case; or that the restraining order might be varied, and that the several defendants in the stayed cause might be restrained from proceeding against the plaintiffs in that cause for their respective costs, and that it might be stated specifically by whom and in what manner and priority, and out of what funds the costs of the defendants in the stayed cause should be paid. PENNEFATHER, B.-This is a case of considerable importance as regards the practice of this court, and the more so because it affects the Court of Chancery as having a concurrent jurisdiction. The present question arises on an order made in this court, dated June, 3, 1848, restraining the plaintiff in the Court of Chancery from proceeding with the suit instituted in that court, and was made on the ground that proceeding there was unnecessary, a decree in this court having been pronounced under which all rights could be adjudicated on. That order was obtained at the instance of the plaintiffs here, and it would appear as if they considered the funds were insufficient. It is an order made for the protection of the funds and property, made at the instance of the creditor inte Mr. J. B. Murphy, in support of the application. The liability of the plaintiffs in a stayed cause was lately discussed before the Master of the Rolls and the Chancellor, in the case of Tangney v. Holmes, (Ir. Jur. pp. 78, 125, 163. In p. 126, the Lord Chancellor observes, that "the proper way to consider this petition is to look at the position of the defendant, whose costs are in question, and what would have been his rights as to those costs, if the stayed cause had come 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." Again-rested in their preservation, and only made when "I do not look upon this order as simply a staying order, but substantially a decree in the stayed cause." Here there are different classes of defendants; first, creditors, who are necessary parties; secondly, formal parties. Some of the creditors may be prior, others puisne, to the plaintiff. The latter are only entitled to get their costs in the same priority as their demand, so that it would be an injustice to the plaintiff in the stayed cause to make him personally liable. If the order were varied, by introducing the words "that the defendants in the stayed cause shall get their costs in the same priority as their demands," all difficulty would be removed. the funds are likely to be insufficient, and therefore we cannot act as if this fund was sufficient to answer the demands of all parties. It is an application highly beneficial to all persons interested, and avoids fur ther expense as soon as a decree is obtained in either court to answer all the purposes of the suitor. Provision was made for costs which it will be necessary to vary in some respects according to the principles the court will presently advert to. The present motion is, that the costs to which the plaintiff in the Chancery cause is liable should be paid in the first instance by the receiver out of the funds collected by the receiver, or that the defendants in the Chancery cause be restrained from taking proceedings against the plaintiff in the stayed cause, on their demand for costs against him. In justice it would appear that the plaintiff in the Chancery cause, who is restrained from proceeding there by the order of this court, is entitled substantially to relief in one or other of the shapes in which he seeks it. In Lofte v. Forbes, it was stated, from the MSS. of the late Sir Michael O'Loghlen, that where both suits were instituted in the Court of Chancery, the defendants in a stayed suit would be prevented from levy. Mr. Vincent Scully, on same side, relied on Jackson v. Curtis, (2 Moll. 463, ibid. 466;) Croker v. Copley, (ibid. 469;) Crofts v. Poe, (3 Ir. Eq. Rep. 151,) where Pennefather, B., lays down the rule-"The costs are given against the plaintiff, as an ultimate security to the party, but are not to be enforced against him, unless it appears that there are no funds in the cause applicable to their payment, or that the plaintiff is guilty of laches in prosecuting the suit." This is the spirit of the order we ask for, that the defend-ing their costs against the plaintiff, because the court ants in the stayed suit be restrained from proceeding against us until the fund proves deficient. Hall v. Hill, (5 I. Eq. R. 11,) is to the same effect. Mr. Bennett, Q.C., for a prior mortgage creditor.There is no prospect of the fund being sufficient; therefore, to order the receiver to pay over these costs, would be to make my client, having the first claim on the fund, provide for puisne in cumbrances. In Crofts v. Poe, a final decree was pronounced, and in Loftie v. Forbes there was no suggestion of a deficient fund. Mr. Sausse, Q.C., for another incumbrancer. Mr. M. O'Donnell for W. De Montmorency, a formal defendant, being executor of the testator, who devised the lands charged to the principal defendant. There was only a portion of the incumbrances created by the testator, so that we are entitled to costs as against the plaintiffs in the stayed cause. [Richards, B.—He stands in the position having restrained him it would be unjust to allow the defendants to proceed against him. In the propriety of that observation I fully concur; but, with great respect to the judges of the Court of Chancery, I would extend a similar rule to an order made by the Court of Exchequer. In a matter of this nature the courts have a co-ordinate jurisdiction, and it ought to be the object of both courts to discourage litigation. It would appear from the MSS, read to us that it does not signify in what court the order is made, and the same principles are applicable to both courts. I feel bound to say so much, approving of what fell from Sir M. O'Loghlen, and, as a necessary consequence, of the equitable jurisdiction, and if I was now adjudicating on this matter in the Court of Chancery I would hold myself bound to prevent the defendants from dismissing the bill. I have said this from the necessity of observing on the general question, where the two equity courts are acting in the same subject matter. The present motion is free from all difficulty of this sort, because all parties in the Chancery suit being also parties in this court, there can be no difficulty in making an order restraining them in such manner as we may think right to give effect to the spirit of our order, but I have said this, because cases may arise where the defendants in Chancery may not be all parties in this court. In such a case there may be a difficulty in restraining a party from dismissing a bill when he was not a party to the suit in the other court. In the present instance there are two grounds of application. Now with regard to the payment of costs by the receiver appointed by this court, we ought not to make such an order. It is resisted by a prior creditor, who alleges the funds in the receiver's hands belong to him, and we think this a valid objection. It is said on the part of the plaintiff in the Chancery suit that the effect of the restraining order here was to make him liable in the first instance to the costs of the defendants in❘ that suit that is not the meaning of our order. It was not our intention that the order should bear this construction; but we will introduce some words which will get rid of any ambiguity. I very much approve of the words of Sir M. O'Loghlen, that the costs shall be, as far as possible, provided for by the staying order; but, it must be remembered, that these are prospec tive orders, and that any order for interlocutary costs diminishes the fund distributable at the final hearing. As to the costs of prior creditors whom the plaintiff brings before the court as defendants in the Chancery cause, he is undoubtedly liable in the event of a deficient fund, because the suit in Chancery, however excusable in its inception, turns out unnecessary in the end; and, as to their costs thereon, the prior creditors, in addition to the security of the fund, are entitled to have the personal liability of the plaintiff. This is the rule laid down by this court in Crofts v. Poe, and subsequently by Sir Edward Sugden in Hall v. Hill. With regard to subsequent creditors they must get their costs in the same priority as their own demands; the costs of puisne creditors are not to be put out of their proper priority. That disposes of the different classes of creditors. Where there is a trustee; if he be a trustee for a plaintiff he is to get costs in the same priority as the plaintiff, if he be a trustee for any creditor he is to get his costs in the same priority as his cestui que trust. He is not entitled to costs as against the plaintiff personally, unless he is a personal representative set up by the plaintiff, then he is entitled to costs against the plaintiff. As to the executor, Sir W. De Montmorency, he is not entitled to get his costs out of the real estate but out of the personal estate of the original mortgagor. I have mentioned the general principles applicable by either courts of Equity to these very salutary and useful orders, and conceiving each court to have a concurrent jurisdiction have endeavoured to frame such a rule as would answer each court. Now we have all the parties before us in this court, and feel no difficulty in making the order to restrain the defendants in Chancery from dismissing the plaintiffs' bill or taking any proceeding against them for their costs. RICHARDS, B.-I think I was right in reserving this application, which originally came before me, for the consideration of the other members of this court. I spoke on the subject to the Lord Chancellor, with the concurrence of the Lord Chief Baron, and stated it was very desirable to assimilate the practice of both courts. The Lord Chancellor had probably then before him the case in the Irish Jurist. At first I was struck with the difficulty in which an unfortunate plaintiff would be placed by a restraining order, making the plaintiff advance costs, and recover them afterwards as best he might. The costs sometimes are very heavy, and the plaintiff might have to pay more than it would be possible for him to meet, and in default of payment he might be sent to gaol. Let us see the consequences to which such a ruling would expose parties. It would impose on the plaintiff the hardship of waiting for the costs which he had advanced, until the fund was realized. We, however, consider it more just, to delay the payment of the costs until the actual fund is realized; but, in truth, the effect of our order is neither to expedite nor delay; we leave parties in precisely the same position in which they originally stood, instead of compelling an innocent plaintiff to pay costs to a party to whom he owes no debt. To decide on such a principle is not only repugnant to our notions of natural justice, but against the authority of Crofts v. Poe and Hall v. Hill, referred to in argument. It is contended for, on this motion, that not only prior incumbrances, but those that are puisne, and even parties who have no charges on the lands, are to be paid their costs by this unfortunate plaintiff out of his own pocket. This appears to me to be a monstrous proposition, and if this were the law, I for one have no hesita. tion in stating, that I would never be a party to staying a suit. [His Lordship referred to a note of the case of Loftie v. Forbes, from the MS. of the late Sir Michael O'Loghlen, as confirming the view taken by the Court in the present case.] QUEEN'S BENCH-EASTER TERM. SMITH V. RITCHIE-April 26. Assumpsit-Bill of Lading-Consignee-Charter party-Evidence-Arrest-Reasonable and probable cause. A. being the holder of a bill of lading of a certain cargo of coals, therein expressed to be deliverable to him or his assigns, brought an action against B. the captain of the vessel, for the non-delivery of the same. The goods were stated in the instrument to have been shipped by C. Held that A. was entitled to sue in his own name, in the present form of action. It appeared at the trial, on the cross-examination of one of the plaintiff's witnesses, that there was in existence a charter party, relating to the cargo in question, which the plaintiff omitted to produce. Held that the bill of lading constituted in itself a complete contract, and that it lay with the defendant, if he sought to vary the terms of the same, to produce the charter party. Held likewise, on a motion for leave to enter a suggestion under the 43 Geo. 3, c. 46, that notwithstanding the defendant had been arrested for more than the sum ultimately recovered, the plaintiff Assumpsit. The declaration contained one special The declaration also contained counts for money had and received, and on an account stated; the defendant pleaded the general issue, and also served a notice of set off, whereby he claimed a certain sum in respect of the freight of the same cargo. Abercairn and Gwythen Colliery Company, in and upon the good ship or vessel called the Harmony of Roseharty, whereof Alexander Ritchie is master for the present voyage, now riding at anchor in the port of Newport, and bound for Waterford, to say 93 tons coals, being marked and numbered as in the margin, and are to be delivered in like good order and condition at the aforesaid port of Waterford (all and every the dangers and accidents of seas and navigation of whatever nature or kind soever excepted) unto Mr. Thomas Smith, or to his assigns, he or they paying freight for the said goods at the rate of 5s. 6d. per ton, four working days allowed for discharging, or to be paid a de murrage of £1 per day, with primage and average accustomed. In witness whereof the master or purser of the said ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplished, the others to stand void. " Weight unknown to "Dated in Newport, 4th day of Nov. 1848. (Signed) ALEXANDER RITCHIE." About 40 tons had been delivered to the plaintiff previous to this dispute, and some money had been paid to the defendant on account of the freight. The value of the portion detained and sold by the captain, after deducting therefrom the amount of freight payable for the part actually delivered, somewhat exceeded £25. A witness named Hayes, who was examined for the plaintiff, admitted in cross-examination that he saw a charter party of the coals on board the Harmony, in the plaintiff's counting-house. He did not state further particulars respecting it. Evidence of the value of the article at the time having been given, the plaintiff closed his case, whereupon counsel for the defendant called for a nonsuit, on the ground that the charter party contained the proper evidence of the contract between the parties, and ought to have been produced, and that the bill of lading disclosed a contract not with the plaintiff, but with the Colliery Company. The learned judge refused to non-suit, but reserved liberty to the defendant to move to enter one, in case the court should be of opinion that the defendant was entitled thereto. The jury found a verdict for the plaintiff generally on all the counts, At the trial of the cause before Jackson J., at assessing the damages at £13 10s. 6d., which was the last Spring Assizes of the City of Waterford, the value of the coals wrongfully sold by defend it appeared that the plaintiff, who was a merchantant, less the amount of freight thereon which would residing in Waterford, had received from a Welsh have been payable in case the whole of the cargo firm the bill of lading of the coals in question, and had been duly delivered. on the arrival of the vessel, had proceeded some way in discharging them, when a dispute arose between him and the defendant respecting the pay. ment of some demurrage claimed by the latter. After a good deal of fruitless negotiation between the parties, and in spite of the remonstrance of the plaintiff who made a formal tender to the defendant of the full amount of the freight, the latter called an auction and sold the coal, converting the proceeds to his own use. The plaintiff produced and proved the defendant's signature to the bill of lading of the coals, which was as follows: "Shipped in good order and condition, by the Mr. Martley, Q. C. in the early part of the term obtained a conditional order to enter a non-suit pursuant to leave reserved, or for a new trial on the Cause was this day grounds above mentioned. shewn by Mr. Lynch, Q.C., (with him Mr. Peet,) [after stating the facts of the case as they appeared in evidence at the trial.] The bill of lading was the instrument whereby the captain, the defendant here, undertook to deliver the goods to the plaintiff. Prima facie the property vests in the consignee named therein. Coleman v. Lambert, (5 M. & W. 505.) Here also there was a part delivery to the |