1844.-Holmes v. Baddeley. Baddeley v. Holmes.

decree as to the payment of the costs to the solicitor, and that the amount might be carried to the credit of Elizabeth Elisha in taking the accounts. He grounded the application on this, that the share of Elizabeth Elisha in the estate amounted to 250%. only, a sum quite insufficient to discharge what was due from her, and that she was insolvent. He argued that a party indebted to the estate will not be allowed to receive any payment while his debt continues unsatisfied; but the costs due to him will be set off pro tanto against the debt due from him; Harmer v. Harris ;(a) and that this might be done independently of the solicitor's lien, and by motion after decree; Shine v. Gough.(b)

Mr. Teed, contra.-The practice of the court is not to vary the decree on motion, which can only be done on a rehearing. The state of the accounts is not proved.

THE MASTER OF THE ROLLS-I think there is a fair question to be determined. I will therefore stay the payment of the costs for a month, and give an opportunity to apply to set the matter right.

*HOLMES V. BADDELEY. BADDELEY v. HOLMES. [69]

1844 January 31.

A prudent solicitor never takes an order for time to answer, on the condition of a serjeant-at-arms, in the terms of the 21st order of December, 1833. Proceedings on a cross cause were stayed, till the defendant in the original cause had fully answered. The answer in the original cause was found sufficient, but some documents, though ordered, had not been produced, their production being the subject of a pending appeal. The court, overruling the decision of the master, gave the defendant in the cross cause an unconditional order for time to answer, with liberty to apply to extend it.

THIS was an application by the defendant in the second suit, for a month's time to answer after the production of the docu

(a) 1 Russ. 155.

(b) 2 Ball & B. 33. And see Cattell v. Simons, 6 Beav. 308.

1844.-Holmes v. Baddeley. Baddeley v. Holmes.

ments mentioned in the answer of the defendant to the first suit.

On the 5th of July, 1842, the original bill was filed, to which the defendant put in an insufficient answer.

On the 29th of March, 1843, the second bill, in the nature of a cross bill, was filed; and the defendant in the first suit having filed a second answer on the 15th of July, 1843, the Master of the Rolls, on the 27th of July, 1843, ordered the production of the documents in the first suit ;(a) and the proceedings in the second suit were stayed, until the defendant in the first suit had fully answered. The defendant in the first suit appealed to the Lord Chancellor, as regarded the order for production of certain documents which he considered privileged.(b)

The answer of the defendant in the first suit was not found sufficient till the 12th of December, 1843; and an application being made to the master, by the defendant in the cross suit, for time to answer, the master, on the 7th of January, 1844, refused

to grant it, except on the terms of the 21st order of De[*70] cember, 1833,(c) viz. of the *defendant consenting to a

serjeant-at-arms, which the defendant Holmes declined to take; whereupon he applied to the court.

The appeal had not been disposed of, and the documents, the subject of it, had not been produced. It appeared also, that on the 11th of January instant, an order had been made, in the first cause, for the production of further documents mentioned in the further answer of the defendant Baddeley, and that it had not yet been complied with.

The present application was supported by an affidavit of the clerk of the solicitor, stating that counsel had advised that before Holmes answered the second bill, the first bill ought to be amended, which ought not to be done till the documents had been produced; and that the deponent believed that counsel could not settle the answer of Holmes, until a month after the documents should have been left for inspection, without great injury to the case of Holmes.

1844.-Holmes v. Baddeley. Baddeley v. Holmes.

Mr. Turner and Mr. Bird, in support of the motion.

Mr. Kindersley and Mr. G. L. Russell, contra.

THE MASTER OF THE ROLLS:-The answer of the defendant in the first suit was found sufficient on the 12th of December last; but all the documents have not yet been produced, so that though, in one sense, the answer is sufficient, yet, in another sense, it is still insufficient.

The answer having been found sufficient, the defendant applied to the master for time to answer the cross *bill. [71] He was of opinion that time ought to be granted, but on the condition of the defendant consenting to a serjeant-at-arms. In my long experience, I never knew this condition submitted to by any prudent solicitor.

Holmes, having had an inspection of some, but not of all, of the documents which have been ordered to be produced, now asks for further time to answer, and I think he is entitled to it.

If he had stated that he was unable to answer until the documents which are the subject of the appeal had been produced, I should have suspended his obligation to answer until they had been produced. The affidavit however states that he requires these documents for the purpose of amending his bill. I cannot attend to that; it can have no weight on this occasion; but then it goes on to say, that the solicitor believes that the answer cannot be settled until a month after the documents have been inspected. This statement is sufficient, and it seems right to grant him five weeks' time, with liberty to apply to extend it, on affidavit showing that an inspection of these documents is material and necessary before the defendant can put in his answer to the cross bill.[1]

[1] As to staying proceedings in the original suit, until the cross bill is answered, see Talmage v. Pell, 9 Paige, 410.

The ultimate trusts in a marriage settlement of a fund belonging to the wife, was to her executors or administrators. Held, first, that the surviving husband, who was her administrator, and not her next of kin, was entitled; and secondly, that if by those words her next of kin were intended, then that the next of kin at the death of the wife, and not of the husband, (who was tenant for life,) were entitled.

By a marriage settlement, a fund belonging to the wife was settled on the husband and wife for their respective lives, with remainder to the children of the marriage, to be vested at twenty-one or marriage; and in case no children should attain vested interests, (which happened,) then as the wife should appoint; and in default unto the executors or administrators of the wife. The wife pre-deceased the husband, and made no appointment. There was one child only of the marriage, who survived her mother, but died without attaining a vested interest. Held, that the ultimate limitation was in favor of the wife's administrator, and not of her next of kin, and one of two trustees having declined to transfer the fund to the surviving husband, who was his wife's administrator, and having severed in his defence in a suit to obtain a transfer, was allowed no costs.

By the settlement made on the marriage of Mundeford Allen with Elizabeth Rush, a sum of 3000l. was settled on the wife and husband for life in succession, with remainder to the children of the marriage, as the husband and wife or the survivor should appoint, and, for want of such appointment, to the children of the marriage, to be vested at twenty-one or on marriage with consent; and in case no child should attain that age or marry with consent, (which happened,) then to transfer to such person as the wife should appoint, and in default "unto the executors or administrators of the said Elizabeth Rush."

No appointment was ever made. The wife died in 1827, and a daughter, the only issue of the marriage, died under twenty-one, without having been married. The surviving husband took out administration to his wife and daughter, and applied to Thorp and Griffin, the trustees, to have the fund transferred. Griffin was willing to comply, but Thorp refused.

The husband filed a bill against the trustees, praying a transfer of the trust fund.

[*73]

*The next of kin of the wife were not parties to the suit.

1843.-Allen v. Thorp.

The trustees severed in their defence; Griffin submitted to transfer; but Thorp, by his answer, stated, "that he had been advised by counsel, that it was very doubtful, whether the limitation in the settlement, (in default of the appointments therein mentioned,) to the executors or administrators of the said Elizabeth Allen, (formerly Elizabeth Rush,) operated in favor of the said Mundeford Allen, as her husband and administrator, or in favor of the next of kin of the said Elizabeth Rush, (afterwards Elizabeth Allen ;) and that it was also doubtful, whether the words of limitation, used in the said settlement, denoted next of kin living at the decease of the said Elizabeth Allen, (in which case they would apply to Elizabeth Frances Allen, the daughter of the said Elizabeth Allen, who died an infant shortly after the decease of the said Elizabeth Allen,) or whether they designated next of kin of the said Elizabeth Allen who should be living when the preceding trust failed," in which case certain persons, whom he named, would be her next of kin.

Mr. Pemberton Leigh and Mr. Rogers, for the plaintiff.—The husband, as administrator of his wife, is entitled under the ultimate limitation to her executors or administrators. This point was clearly settled by Lord Cottenham in Daniel v. Dudley.(a)

Supposing, however, that this is not the proper construction, and that the words "executors or administrators" mean next of kin, then the next of kin of the wife living at her death are alone entitled. Her daughter was sole next of kin at [*74] that period; and the plaintiff, in the character of administrator of his daughter, is entitled to the fund.

The defendant Thorp, who has unnecessarily occasioned the litigation, in a case in which the plaintiff is entitled in either alternative, ought to bear the costs.

Mr. G. Turner and Mr. Younge, for Thorp.-Though there is a strong expression of Lord Cottenham's opinion in Daniel v. Dudley, still there was no ultimate decision in that case; and the opinions of Lord Brougham in Bulmer v. Jay(b) and of Sir

(a) 1 Phillips, 1.

(b) 3 Myl. & K. 197.