1843. YOUNG v. ENGLISH. respect of rent; and that as against the Plaintiff's claim, the Defendant, Mr. Walker, had not any lien on the lease and title deeds, for his general bill of costs against Mr. English. Walker, as before stated, by his answer, denied all notice of the Plaintiff's claim, and he thereby claimed such a lien as the Court should consider him entitled to. A replication was filed to his answer, which was afterwards withdrawn, and he was examined as a witness on behalf of the Plaintiff. In January 1842, English became bankrupt, and his assignees were brought before the Court by supplemental bill. Mr. Pemberton Leigh and Mr. Bagshawe for the Plaintiff. The Defendant, Walker, who claims merely an equity, is entitled to such interest only as English himself had; English had expressly undertaken to return the deeds, which in equity both he and his solicitor are bound to perform. Walker, therefore, has no lien whatever. As no appropriation was made by English of the 3007. paid by him, the Plaintiff has a right to attribute it to the trade account (a), thus leaving the equitable mortgage undischarged. Mr. Goodeve for Walker. There being no replication to this Defendant's answer, it must be taken to be true in all its parts, and the Plaintiff having examined him as a witness, can have no decree against him (b), and his costs of suit. must pay (a) See Devaynes v. Noble (Clayton's Case), 1 Mer. 605, 606. In (b) 2 Daniel's Practice, 451.; Carter v. Hawley, cited in Ambler, 583. In Bernard v. Drought (a), it was held that an incumbrancer negligently leaving title deeds in the grantor's possession, a lien may be obtained on them by the grantor delivering them to a solicitor. Here Walker has obtained a lien, not only for the costs of completing this purchase, but for his other general business transacted for English. Mr. G. Turner, for the trustees of the Conservative Club, claimed to be entitled to deduct from the purchase money 671. 2s. 5d., being such portion of the ground rent due at Lady Day 1841, as accrued due before possession was given up. Mr. Kindersley, for the assignees, claimed to be entitled to the unpaid purchase money, on the ground that the deeds were in the order and disposition of the bankrupt; secondly, that the Plaintiff had no right to make the appropriation of the 300l. which he contended for, as that sum formed part of the produce of the mortgaged premises, and must be taken to have been paid in part discharge of the mortgage thereon; thirdly, that a great portion of the purchase money was the consideration for the good will of the business, on which neither the Plaintiff nor Walker could have any claim. Mr. Pemberton Leigh in reply. It is not true that you cannot have a decree against a Defendant whom you examine as a witness. The rule is, that you cannot have a decree as to those matters alone as to which you have examined him. Nightingale v. Dodd (b), Murray v. Shadwell (c), Ellis v. Deane (d); besides this, the (a) 1 Molloy, 38.; but see Smith v. Chichester, 2 Dr. & War. 393. (b) Ambler, 583. 1843. YOUNG บ. ENGLISH. 1843. YOUNG บ. ENGLISH. the Defendant himself requires a declaration of right in order to obtain the benefit of his alleged lien. Hulton v. Sandys.(a) If Walker has a lien, it is limited only to the costs of the purchase. Blunden v. Desart. (b) First. The assignees claim to be entitled to the remaining purchase money, on the ground that the deeds were in the order and disposition of the bankrupt. For this claim there is no foundation. Secondly. The Plaintiff, being creditor in respect of his mortgage debt, and also in respect of a book debt, claims to be entitled to the sum of 300l., which he received on the 19th of November 1840, in satisfaction of the book debt. In support of his claim, in that respect, he alleges, that nothing was said as to the application of the money which he received, and he insists, that in the absence of express direction, he has a right to make the application most beneficial to himself. But it appears to me, from the nature of the transaction, that English paid this money only in respect of the Plaintiff's right to the mortgage, and that it must, from the circumstances, be understood, that English meant the payment to be applied towards satisfaction of the mortgage. Thirdly. The purchasers claim to be entitled to deduct from the purchase money the sum of 671. 2s. 5d., being such portion of the ground rent due at Lady Day 1841, as accrued due before possession was given up. The agreement however affords no foundation for this claim, and I am of opinion that it cannot be sustained. Fourthly. Mr. Walker claims to have a lien on the deeds, not only for the costs of completing the purchase, but also for a general bill of costs, which he states that he has against English. The replication to his answer was withdrawn, and the Plaintiff has examined him as a witness. The consequence of which is, that his answer must be taken to be true, and the Plaintiff must pay him his costs of the cause. He has further contended, that he is entitled to have his claim allowed to its fullest extent; but any quest ion on the subject is, in this case, precluded by the form of the answer, in which Mr. Walker says that he claims such a lien as the Court shall consider him entitled to; and having considered what he is entitled to, I am of opinion that his lien extends only to the costs incurred in completing the purchase for which the deeds were placed in his hands. The Plaintiff is now seeking the benefit of the purchase in which he acquiesced from the beginning, and he cannot have the remaining purchase money without paying to Mr. Walker the proper costs of the transaction by which it was made available; but to extend the lien further, would be to allow Mr. Walker to profit by the fraud of his own client, and that, in a case where a little proper attention on his own part, would have procured him full information of all the circumstances. I think that Mr. Walker is entitled to his costs of the suit, only because the Plaintiff has thought proper to examine him as a witness. VOL. VII. C Mr. 1843. YOUNG v. ENGLISH. 1843. YOUNG v. ENGLISH. Mr. Walker alleging that the purchase money to be paid by the club was in part for the relinquishment by English of his business as an hotel keeper, has endeavoured to resist the Plaintiff's claim, on the ground that his lien extends only to so much of the purchase money as ought to be attributed to the leasehold interest in the premises; but in the circumstances of this case, I am of opinion that no such distinction can be maintained. An account must be taken of what remains due to the Plaintiff on his mortgage; and in taking the account credit must be given for the sum of 300l. paid on the 19th of November 1840. An account must also be taken of what remains due from the trustees of the Conservative Club for the purchase money. The costs of the suit and the costs of Mr. Walker in completing the purchase must be taxed: what is due to the trustees and Mr. Walker must be paid; the residue must be paid to the Plaintiff towards satisfaction of his mortgage; and on such payment, Mr. Walker must deliver up the deeds to the trustees of the club. |