121); Bart v. Bernard, (4 I. E. R. 428, S. C. Fl. & K. 414); Moss v. Gallimore, (Doug. 279.) that the conditional order is not the order' properly so called, but is merely notice to the party that an order will be made, unless he shews cause against it." These observations were made when the practice of the court was different from what it is at present, and it has since been altered in conformity with the suggestions of Sir E. Sugden, by substituting a notice for the conditional order. I think this authority is directly applicable to the case before me; the conditional order was in effect notice to the respondent, to give him an opportunity to shew cause, and the rents were not attached until the absolute order of the 20th of January, 1849. Mr. Morris is therefore entitled to the rents received before that time. "Be it so on original notice, and be it so for transfer of residue of said sum of £217 8s., Gov. 3 per cent. consols, after said transfer to M. Morris to the Ecclesiastical Commissioners for Ireland; and let said Commissioners, and said M. Morris have their costs of said motion, as costs in said fifth and seventh matters." Lib. 286, fo. 166. MARTIN v. O'FLAHERTY.-May 29th & June 3rd. mitted to be used. June 3-MASTER OF THE ROLLS.-In this case Mr. Morris, a judgment creditor, the petitioner in the fifth matter, obtained an order to extend the receiver, which was made absolute. On the 28th of April, the Ecclesiastical Commissioners obtained a conditional order, on foot of a mortgage, which was not made absolute until the 20th of January, 1849, and the greater part of the sum in court is the produce of rents lodged previous to this date. The whole question is, whether the conditional or absolute order for a receiver on foot of the mortgage attaches the rents, and on the construction of the act of Parliament I do not think there is much difficulty. The 10 & 11 Geo. 3, provides that where one and a half year's interest shall be due, a Court of Equity, upon application in manner thereinafter mentioned, may appoint a receiver; the mode of proceeding is regulated by the second section, which provides that "such order shall be made upon petition and affidavit, after reasonable time given to shew cause," &c. It appears to me that the conditional order cannot be considered as attaching the rents; the only order mentioned is one made after reasonable time to shew cause, and the conditional order is not made after time to show cause. I apprehend that the judgment creditor is entitled to all the rents received before the 20th of January, 1849. If any authority were wanting, the observations of Sir E. Sugden in Bart v. Bernard, (3 Dr & W.), shew that it is the absolute and not the conditional order which attaches the rents. These observations were made with reference to the Sheriffs' act; but I do not think there is one word which is not applicable to the mortgage act. In page 476 he says, "The conditional order is issued for the purpose of bringing the machinery of the act of Parliament into operation in the case. The first order is pronounced that the parties may have notice that unless cause be shewn within 10 days, the order for the receiver will be made. This is merely to carry the intention of the Legislature into effect, and to do justice between the parties. Suppose, instead of the issuing a conditional order, as at present, this court, in the exercise of its judicial consideration, were to fiat the petition thus:Let notice be given to the party, that unless he shew cause within ten days an order for the appointment of a receiver will be made.' Will any person argue that this fiat could be considered as an execution executed; or that it amounted to any thing but notice? Suppose, instead of the present chamber practice (which does not take place in the Court of Exchequer), this court should direct all parties to have notice, and to come prepared with the names of the denominations, the value of the property, and sufficient facts, so as to enable the court to make but one order and that a perfect one. Can any one deny that I have power to make such a fiat? and could it be argued that such was any-marriage, share and share alike on default of apthing but notice? Why should the course which the court adopts to give the parties notice, and to ave expense, be held to give the judgment creditor to great an advantage which the Legisiature never ntended to give him? My opinion, therefore, is, Bill filed to raise a charge, stated that a sum was due for interest; but did not interrogate the defendant on that point. The answer did not admit that any sum was due, or at all refer to the statement in the bill. Upon a motion for a receiver, Held, that the plaintiff was entitled to use an affidavit setting forth the sum due, in support of the motion. The bill in this case was filed on the 18th of Jan uary 1849, and stated that Sir John O'Flaherty being seised in fee of certain lands in the county of Galway by articles, bearing date the 18th of June, 1764, and made in contemplation of a marriage then intended between the said Sir John O'Flaherty with Mary Royse, the sum of £1500 was covenanted to be charged on said lands, for the daughters or younger children of the said marriage; that by indenture bearing date the 15th of August, 1772, said lands were conveyed to trustees upon trust, amongst others, to raise said sum of £1500 for said younger children. That said marriage was duly solemnized, and there was issue thereof one son, and one surviving daughter Mary, who was the mother of the plaintiff R.J. Martin. That in October, 1806, . said Mary married Robert Martin, and by articles of agreement bearing date the 5th of October, 1806, and reciting that the said Mary was entitled to said sum of £1500, same was vested in trustees, the interest to be paid to the said Robert Martin for his life, and after his decease to the said Mary in case she survived him, then amongst the children of the pointment. That the plaintiff Robert J. Martin was the only issue of said marriage, who upon the death of his mother became entitled to the said sum of £1500, subject to the life interest of his father therein. That said plaintiff married Eliza Leeson, and said sum of £1500 was covenanted to be assigned to trustees upon certain trusts therein mentioned. That said Robert Martin was long since dead, and there was no issue of the marriage between the plaintiffs. The bill then stated that the estates charged were disentailed, and by demise became vested in the defendant George Fortescue O'Flaherty, who was then in possession. That the interest on said sum of £1500 was regularly paid by Sir J. O'Flaherty, and Thomas H. O'Flaherty his son, up to the first day of May 1847; and that interest on said sum from said last mentioned day was then due, and in arrear to plaintiff, except the sum of £10 received on account thereof, and that plaintiffs were desirous of having said sum of £1500, with the interest thereof, paid off and discharged, and for that purpose he made frequent applications to the defendant G. F. O'Flaherty. The bill then prayed an account of the sum due to the plaintiffs on foot of said charges, and that same might be paid, and in default, for a sale and a receiver. The bill did not interrogate the defendant as to whether there was any sum due for principal or interest, on foot of said charge, or whether any payments had been made; and the defendant, by his answer, stated he believed the several deeds were executed, and referred to them; but did not admit that interest had been paid, or that any sum was due, or refer in any way to these statements in the bill. Some questions were raised by the answer, as to whether said sum was well charged on the lands. On the 29th of May, 1849, an affidavit was filed by the plaintiff, Robert J. Martin, which, after setting out the several matters in the bill mentioned, stated that the interest on said charge or sum of £1500 was duly paid from time to time by the said Sir J. O'Flaherty during his life-time, and up to the time of his decease, in the year 1808, to the parties then entitled thereto, and that from the decease of the said Sir J. O'Flaherty, his son T. H. O'Flaherty, regularly paid said interest unto plaintiff's father, during his life, and since the death of plaintiff's father, on the 20th of May, 1840, said T. H. O'Flaherty, from time to time, duly paid the interest on said charge unto plaintiff, and continued so to do up to May, 1847, and that such interest was, on several occasions, remitted to the plaintiff by the defendant George F. O'Flaherty, acting for and as the agent of the said T. H. O'Flaherty, as by the letters of said defendant in the possession of plaintiff might appear. The affidavit also stated, that the sum of £156 3s. as and for an arrear of said interest, being nearly two years, ending on the 1st of May, 1849, then remained justly due and owing to plaintiff, together with the said principal sum. That plaintiff had made several applications to the defendant, G. F. O'Flaherty, for payment of said interest, without effect. That said defendant, in reply to one of such applications, wrote a letter to plaintiff, bearing date the 29th of August, 1848, in which defendant made the following statement, "I am not unmindful of my promise, and am making the best arrangements I can for the purpose. I am even trying to obtain a loan in case the fair should not turn out well. I am told I shall have no difficulty in case I make it a first charge, which I cannot do without paying you off. I am not disposed to do this, as I conceive you could not invest your money in a better way, and I shall not, unless I am by circumstances forced to do so." The affidavit then stated that previous to the filing of the bill, plaintiff's solicitor wrote to said G. F. O'Flaherty, stating that proceedings would be instituted to recover principal and interest, unless the interest was paid; and the said defendant, by his answer, bearing date the 28th of October, 1848, admitted his liability, and excused the non-payment of the interest. That plaintiff believed, unless a receiver was appointed, the arrear of interest would be in danger of being lost, and that the lands were charged with judg ment debts to a considerable amount, subsequent to plaintiff's charge. This was a motion on behalf of the plaintiffs, that it might be referred to the Master to appoint a receiver on the answer and affidavit. Mr. Deasy, Q.C. & Mr. Blake, for defendant, contended that the motion must be refused, as there was not any admission in the answer that interest was due, and the plaintiffs had no right to make use of the affidavit, as the defendant had not been inter rogated whether there was any interest due, or whether any payments had been made. The an swer must therefore be considered full, for by the rule a defendant need not answer any statement in the bill, unless specially interrogated thereto. On motion like the present, an affidavit is permitted to be used only in cases where the answer is not full. Mr. Hughes and Mr. Henderson for plaintiffs. -The bill contains a statement of these facts, and the defendant is at liberty to contradict any statement in the bill, although he may not be interrogated to it. In Bell v. M'Loghlin, (Fl. & K. 272), upon motion for a receiver on bill and answer, the plaintiff was permitted to use an affidavit, and it does not appear that there was any interrogatory granted to that particular fact. [Master of the Rolls.-That case was decided before the new general orders of 1843.] There is no case which decides that an affidavit cannot be used to supply the omission of a fact passed over in the answer; an affidavit cannot be used to contradict an answer, but that is not the case here. MASTER OF THE ROLLS-I think this motion would be refused in England, upon the authorities there, and if the defendant in his answer swore that no interest was due, I would not permit an affidavit to be used to contradict the answer. However, I will look into the matter. June 12.-The MASTER OF THE ROLLS-His Lordship on this day referred to the cases of Ord v. White, (3 Beav. 357,) and Castellain v. Blumenthal, (12 Sim. 47,) and said that although these were cases for injunctions, they were applicable to the case before him; also to the case of Edwards v. Jones, (13 Sim. 632,) and the same case on appeal before Lord Lyndhurst, (1 Ph. 501,) where it is laid down that on an interlocutory motion for production of documents founded on the answer, an affidavit cannot be admitted to prove a fact, although the sequent to the order admitting plaintiff to sue as a pauper. answer neither admitted nor denied it. His Lordship then said, It is perfectly plain that on the authority of the case before Lord Lyndhurst, this motion would be refused in England; however, in the case Hogan v. Bodkin, (1 Hog. 374,) Sir W. McMahon held that on a motion for a receiver upon answer, the plaintiff was entitled to use an affidavit ascertaining the amount of the arrears of an annuity due; and Sir M. O'Loghlen followed that authority in Bell v. M'Loghlin, (Fl. & K. 272.) | These decisions are productive of considerable embarrassment; but I consider it is better to adhere to the practice in this country. In this case there is an omission in the interrogatory part of the bill, which does not enquire whether any interest is due. Under the general order, the defendant is not bound to answer any part of the bill to which he is not specially interrogated the answer is perfectly silent on that point, and it is insisted that the cases do not apply as the defendant is not called on to You cannot use an affidavit to contradict an answer, or to deny any statement in it; but the cases in this country go to the length that you can use an affidavit to meet an evasive denial, or to supply an omission; and, in the present case, the affidavit is to supply an omission. When a defendant is not interrogated there is some difficulty; but I think it is a fine-drawn distinction, and it is better to follow the case of Bell v. M'Loghlin, and the case before Sir W. McMahon, although I admit they are directly opposed to the English authorities. In Mr. B. Lloyd, and with him Mr. Semple and this case also I find that the defendant, by his an- Mr. B. Thompson for the plaintiff.-The order to swer, states that he believes the several deeds were dismiss the bill with costs was irregular, as the executed, and refers to them, and that, I think, is plaintiff had obtained liberty to sue in formâ pausufficient on an interlocutory application, as, al-peris. A pauper plaintiff might be put in prison though there was an omission to interrogate as to whether interest is due, there is an admission of documents, from which it will appear that the interest is due. On the whole, I think it is better to follow the authorities in this country, as it is for the advantage of the public that the practice should be Quere as to the costs incurred in the interval between the conditional and absolute order. Quere as to costs before the order giving liberty to The bill in this case was filed on the 12th of Jan. answer. certain. Be it so, and let this order not be acted on for one month from the date hereof." Lib. 286, fo. 362. STAUNTON V. BARRINGTON.-July 6th and 7th. Pauper-Costs. Bill filed in January, 1842; 3rd of June plaintiff obtained a conditional order for liberty to sue in formâ pauperis; on the 28th of June defendant answered; on the 3rd of November the conditional order was made absolute; on the 13th of January, 1843, the bill was amended, and no further steps taken by the plaintiff. On the 10th January, 1845, defendant answered the amended bill, and on the 24th of June obtained an order dismissing plaintiff's bill with costs generally In 1849, the plaintiff was arrested under an attachment for these costs. The order of June, 1845 was set aside, and the plaintiff ordered to be discharged. A bill by a pauper plaintiff will be dismissed without costs, so far us relates to costs incurred sub for filing an improper bill, Pearson v. Belsher, (4 Ves. 629); or be whipped, (1 Tidd. pr. 94); but a pauper could not be ordered to pay costs. (1 Dan. C. P. 783; 11 Hen. 7, c. 12, 23; Hen. 8, c. 15; 10 ch. 1, st. 1, c. 2, sec. 17, Ir.); Gallop v. Ashe, (reported in Beames on Costs, 80); Davenport v. Davenport, (1 Ph. 124); and the case of Higgins v. Vaughan, there cited; Jones v. Peers, (MClel. & Young, 282.) The authorities at law are Pratt v. De Larue, (10 M. & W. 509.) [Counsel referred to Church v. Marsh, (2 Hare 652, Beames on Costs, 280); and Paradise v. Sheppard, (Beames on Costs, appendix, 252.)] Mr. Rogers, contra, for the defendant Barrington, contended that in some cases, paupers are v. Belsher, (2 Br. C. C.272,) where a pauper plaintiff compelled to pay costs, and referred to Wilkinson was not permitted to amend by leaving out defendants without paying their costs, and to the where it was held that a pauper was not entitled to case of Pearson v. Belsher, (in 3 B. C. C. 87), dismiss his bill against defendants, without payment of costs. [Counsel referred to Harrison, C. Pr. 391; 1 Sim. C. Pr. 710; Made. Pr. 740.] July 7.-Mr. Lloyd in reply. The case of Pearson v. Belsher, (3 B. C. C.) is misreported; the order to dismiss, in that case was made without costs. (Vide Br. C. C. by Belt, 87; and see 4 Ves. 629; Beames on Costs, 80); and a defendant cannot, by putting in an answer, be entitled to dismiss a bill with costs, without notice to the plaintiff. answer. MASTER OF THE ROLLS.-The facts and dates are as follow:-On the 12th January, 1842, the bill was filed; on the 1st of June, 1842, a petition was presented, according to the then practice, for liberty to sue in formâ pauperis, and a conditional order made, which was served on the defendant on the 6th of June; on the 28th, the defendant filed his On the 3rd of November, the conditional order, giving liberty to sue in formâ pauperis was made absolute; on the 13th of January, 1843, the bill was amended; on the 18th of January, 1845, more than two years after, the defendant filed his answer; and on the 24th of June, 1845, he obtained an order that the bill should stand dismissed, with costs, for want of prosecution. At the time that order was made, it appears that the plaintiff was out of jurisdiction, and the attention of the late Master of the Rolls could not have been drawn to the fact that the plaintiff had obtained an order giving liberty to sue in formâ pauperis. That circumstance should not have been suppressed. As has been contended, the last proceeding being in 1843, I am not sure that a question does not arise, how far the defendant was entitled to put in an answer in 1845, merely for the purpose of having the bill dismissed with costs; but I need not now decide that point; the plaintiff having lately returned to this country, was arrested for the costs of these proceedings. The general rule of law on this subject is laid down by Baron Parke in the case in Meeson and Welsby, to which Mr. Lloyd has referred, also in the case of M'Donough v. Õ’Flaherty, (Beattie, 54.) Sir Anthony Harte there says, "The rule of permitting a man to sue or defend in forma pauperis, springs out of the benignity of our law, which provides that every man, however low and poor his station, shall be enabled to obtain the same measure of justice as the highest and most opulent; it gives the pauper a right to come into court without expense, otherwise his poverty would preclude him coming there. The same commisseration protects him, if unsuccessful, from payment, because such an order would serve only to imprison him interminably." In that case, Sir A. Harte directed costs to be paid by the plaintiff, because a fund was realized. A pauper may not only carry on proceedings but is free from payment of costs, that is the general rule; no doubt there may be cases which will disentitle a plaintiff to the benefit of the order, and if it is improperly obtained, it is well established that the court has power to dispauper the plaintiff, and compel him to pay costs; but that is not the case here, for there is not any impropriety of conduct suggested, which would authorize the court in making such an order. The question is, whether the dismissal of the bill, or the submitting to the defendant's doing so, amounts to an admission that the plaintiff ought not to have taken any proceedings? In case of non-suit, the court will not compel a pauper plaintiff to pay costs. As to the case of a bill being dismissed, although from a misreport in 3 Browne, C. C., there is some difference of opinion in the text writers; in the case referred to, the decision was the opposite from what it is represented, and the bill was dismissed without costs, although on the application of the pauper himself, which is stronger against him than if the bill was dismissed by a defendant. The case of Wilkin son v. Belsher, (2 B. C. C.) was misunderstood; in that case some costs were incurred previous to the order admitting the party to sue in formé pauperis, and the observations of the court had reference to these costs. In the case of Gallop v. Ashe, referred to in Beames on Costs, which may be taken as a correct note, it was decided by the Vice Chancellor that if a bill by a pauper be dis missed for want of prosecution it must be without costs; in this country there is the case of Dogherty v. Dogherty, (reported 2 L. Rec. O. S. Ex. 459.) 1. was an application by a defendant that the plaintiff's bill should be dismissed with costs for want of prosecution, and Baron Pennefather adverted to the distinction where a party dismissed his own bill, which was a voluntary act, and different from a dis miss by a defendant. Counsel in the case having pressed for costs up to the time plaintiff was admitted to sue in formâ pauperis, and referred to a case in this court; Baron Pennefather, in giving judg ment, said: "With every deference for the Master of the Rolls I differ from him in opinion; were it meant to apply such a principle the order admitting the party a pauper would so provide, &c. Enter i dismiss without costs, plaintiff having been admitted a pauper." This is an authority that on the application of a defendant the court will not dismiss a pauper's bill with costs. There is this difficulty in the case; the order of June, 1842, giving liberty to sue in formâ pauperis, was not made absolute until November following, and some of these costs were incurred in the interval, and am I to consider the date of the absolute or the conditional order as the time from which the plaintiff was entitled to sue as a pauper? However it is not necessary to decide that now, for after the order, giving liberty to serve as a pauper, was made absolute, the bill was amended, and costs were incurred; on the 6th of June, 1842, the conditional order was served, and on the 26th of June following the answer was filed; it is without doubt that at least £50 costs were incurred subsequent to the absolute order, the attachment was, therefore, grounded on an irregular order, directing all the costs to be paid, and I cannot appor tion these costs. In this case considerable costs were incurred after the order was made absolate, and the order dismissing the bill was made on a sup pression of facts for which the defendant should suffer. "Let the order of the 24th day of June, 1815, (the plaintiff by his counsel in open court undertaking not to bring any action at law), made in this cause, be set aside without prejudice to the defendant applying as he may be advised that the bill may stand dismissed with costs, incurred prior to the order admitting the plaintiff to sue in formá pa peris, and let the attachment which issued in this cause be set aside, and the plaintiff be discharged from the custody of the sheriff of the County of Dublin, and let each party abide his own costs." Lib. 288, fo. 116. By a consent order in this cause, made on the 23rd of July, the order of the 7th of July was varied, and the bill was directed to stand dismissed without costs.-Reg. Lib. 445, ƒo 54. COURT OF CHANCERY. A mortgagee's solicitor obtained the carriage of a to Mr. Gaussen, (nominally to Mr. Brooke,) to save expense. The title-deeds seem to have been handed to Mr. Brooke, to be used in the progress of the sale. In proof of the import of the arrangement, I may refer to a letter from Mr. Gaussen to Mr. Babington, thanking him for his generosity, and holding out the expectation that he would do his best for the lunatic. It was contended that, in the abstract, it was the duty of Mr. Gaussen to adopt every thing he had done as solicitor of the mortgagee, and that he could not charge a second time for any thing he had done then; and that it was not necessary for him to have again performed the same business. It struck me that such a case must often have occurred in practice, that a solicitor for a mortgagee must often have been shortly afterwards solicitor for the vendor, in cases of foreclosure. I was anxious to obtain informaThis was an application to review the taxing-mas- tion as to the practice on this point, but I could ter's report. In 1841, John Brooke, the peti- not obtain much. In principle it seems just that tioner, took a mortgage of the lands of Richard parties should not be allowed to charge twice for Bell, and employed Mr. Gaussen as his solicitor, the same business; at the same time, no one is to investigate title, which was done. On the 13th entitled to call on a solicitor to undertake business May, 1843, Mr. Bell was declared a lunatic, and without remuneration. It was contended that the on the 2nd August, 1844, an order was made that dealing of Mr. Gaussen for the mortgagee was not his lands should be sold for the payment of the the same, that it did not require so much strictness incumbrances upon them, and the carriage of this as when he was employed for the vendor, under the order was given to the petitioner. On the taxa- rule of this court. I do not take that view; a sotion of the costs of sale, the taxing-master, amongst licitor for a mortgagee is as much bound to proother items, disallowed-First, a charge for comtect his client, as a solicitor for a purchaser. His parison of those title-deeds, which had been, or business is, not to run any risks, but to obtain a should have been compared on the occasion of the clear title, and he cannot found any claim for reloan, and, secondly, for reading and noting the ab-muneration on his own omission to do his duty on stract. The petition was in part directed against this ruling. The facts of the case so fully appear in the judgment of the Lord Chancellor, it is not necessary to state them more fully. April 21.-LORD CHANCELLOR.-This application regards several classes of costs; on some I have expressed my opinion, on those I have reserved it, the case stands thus-Mr. Brooke, a mortgage creditor of the lunatic, in that character had obtained the carriage of the proceedings, and the entire conduct of the sale, by an arrangement in the office was given to Mr. Gaussen, Mr. Brooke's solicitor, and the costs in question have been incurred in that character. In regard to these objections, it seems that Mr. Gaussen charged for the preparation of the abstract of title, and for reading and noting it, or,-as in the rule settling costs it is termed,-for reading and abstracting the documents in the abstract, and he has further charged for comparing all the copies of deeds. It was objected to these charges, that in 1843 he was solicitor for Mr. Brooke, and had acted in the negociation of his mortgage; that in that character he had, in the course of business, obtained from Mr. Babington, the solicitor of Mr. Bell, an abstract of title, and copies of the deeds, and that he then, in the discharge of his duty, investigated the title, or must be taken to have done so; that then he should have tested the copies by comparison with the deeds; and that havng obtained payment of his costs in the former character, he cannot in the new character of solicitor for the vendor, and being the same person, charge for performing the same duties. It appears that the arrangement for the carriage of the sale was transferred the first occasion so fully as he should. It may be |