The authorities relating to cases of this kind are not very distinguishable, nor altogether consistent; for it is to be observed in this case, that the defendant, aware of the fact, took and held possession during the infancy of the plaintiff,-held the property, or so much thereof as was purported to be conveyed to him as his own,-took possession of the documents of title relating to the property, and delivered them over to his own mortgagee. He admits, however, that part of the property belonged to the plaintiff, and says, in respect of that part, he has paid rent, but he does not say to whom. This is a circumstance which will have to be considered in taking the account; and, as the plaintiff must have come here for a discovery, I think it is a case in which the legal title being established, the Court ought to give relief. There is, however, reason to believe that the legal estate is outstanding. The surrender of August 1764 was not absolutely a formal but a conditional surrender. Although the defendant states this condition has been satisfied, it does not appear that grounds may not be found to place the legal estate under his controul; and he plainly states he will avail himself of any legal estate he can obtain to defeat any ejectment that may be brought by the plaintiff. I do not think that a legal estate outstanding is so proved in this case as to prevent the ejectment being brought, if there be other grounds for the ejectment. The satisfaction of the condition being alleged by the defendant, who is silent as to the legal estate being obtained by means of the surrender, and yet avowing his intention to defeat any ejectment that may be brought, appears to me to add some force to the reason for entertaining the ejectment. I think, therefore, the bill ought to be retained for a year, for the purpose of enabling the plaintiff to bring the ejectment, with liberty to apply.

On looking at the prayer of the bill, I do not find that it distinctly prays specifically to restrain the defendant from setting up any outstanding legal estate; but, nevertheless, I think that it is quite clear the whole object of the trial would be defeated if any such outstanding term could be set up. I think I must consider this case as one of the exceptions to the rule, that in order to

Costs-Insolvent-Insolvency of a Sole Plaintiff-Suit becoming Defective after a Decretal Order made therein.

Where a suit has become defective by the insolvency of a sole plaintiff, after a decretal order made therein, the Court will not permit a defendant to take advantage of that defect by disregarding the existing order, and the rights of those who are not yet made parties by supplemental bill, but who have an interest in such order.

An order had been made in a suit, by consent, restraining a defendant from receiving certain costs in another suit before a different branch of the Court. The plaintiff having afterwards become insolvent, the defendant, in the face of the consent order, obtained an order for the taxation and payment of the costs in such other suit, and threatened to receive the same. Upon the petition of the assignee of the insolvent, the Court declared that the costs in question were included in and bound by the consent order; and the petitioner consenting to abide by such order as the Court should make as to dismissing the bill, in case he should not make himself a party thereto within a certain time, the Court ordered the petition to stand over for a week, with liberty to the petitioner to make such application as he might be advised in such other cause, touching the payment of the said costs, and that the defendant should not receive the said costs in the meantime. The meaning of the Court in making such order is, that it may be the foundation of a stop order in such other cause, until the present suit be reinstated, or the bill dismissed.

The object of this suit was to obtain an account of the costs received by the defendant, while acting as solicitor for various parties in certain causes in Chancery, and

particularly in a cause of Richards v. the Earl of Macclesfield. The plaintiff and defendant were both solicitors, and the bill charged that the parties, for whom the defendant had acted were clients of the plaintiff, and that the defendant had acted for such parties as the agent of the plaintiff; and it prayed for an injunction to restrain the defendant from acting any further for the said parties in such causes, and from receiving any further costs therein. The defence set up was, that the agency had ceased at the time at which the costs were incurred, and that the defendant was then acting as such solicitor on his own account. In January 1844 the plaintiff moved for an injunction, and, on the hearing of the motion, it was arranged that a decretal order should be made by consent, according to minutes then settled and agreed on between the parties, which were to the effect that all matters then in dispute between them were to be referred to arbitration, and that all proceedings in the suit and in certain actions, with reference to the matters then in dispute between them, should be stayed. A decretal order was then made by the Court in accordance with these minutes, and the same having been left at the registrar's office in order that the decree might be drawn up, were there lost or mislaid; and in consequence of the defendant's refusal to sign fresh minutes, the decree had not been drawn up. In July 1844 the defendant procured an order to be made by the Vice Chancellor of England in the cause of Richards v. the Earl of Macclesfield, for the taxation and payment of the costs of the parties for whom he had acted as solicitor therein. In this stage of the proceedings the present suit had become defective by the insolvency of the plaintiff, and a petition was now presented by the creditors' assignee of the insolvent's estate, stating the facts as above, and that the said costs had been taxed under the order of July 1844; that the certificate would forthwith be signed, and that the defendant intended immediately thereafter to proceed to obtain payment of such costs. The petition then stated that the costs included in such order for taxation, and the right to receive the same, were part of the subject-matter in dispute in the cause of Fisher v. Fisher, and were bound by the consent order which had been made therein, and it prayed that the Accountant General NEW SERIES, XIV.-CHANC.

might be directed not to pay the costs comprised in the said order of July 1844, without notice to and with the consent of the petitioner, or until the further order of the Court; or otherwise that the defendant might be restrained by injunction from applying for and receiving such costs by virtue of such order, without the further order of the Court. The petitioner also stated that he intended to reinstate the suit of Fisher v. Fisher, by making himself a party thereto as soon as he could obtain the necessary consent of the creditors under the insolvency.

Mr. J. Russell and Mr. Mylne, for the petition.

Mr. Anderdon and Mr. Bagshawe, contrà.

WIGRAM, V.C.-Upon the evidence, the consent order must be assumed to be a subsisting order, and an application for the costs in the cause of Richards v. the Earl of Macclesfield, in the face of it, would be a direct breach of faith. If the consent order had been actually drawn up, service of such order upon the Accountant General would have stopped the payment. Had either party wished to get rid of that order, an application might have been made for that purpose; but that not having been done, the order must be treated as a subsisting order affecting the fund in question. The only doubt is, how far it is competent to me to make an order here, affecting an order made in another suit by a different branch of the Court.

Mr. J. Russell. This case must be treated as if an injunction were subsisting; in which case the defendant would be prevented receiving the fund notwithstanding the order in the other suit; or, as if the defendant had made a subsequent assignment of the fund, and a stop order been obtained in respect to it in the cause of Fisher v. Fisher. In that case, all that the defendant could do would be to move that the assignee in insolvency might file a supplemental bill within a limited time, or that the suit might be dismissed; in which case the injunction would fall of course.

Feb. 24.-WIGRAM, V.C.-For the purposes of this motion, and under the circumstances, I am of opinion that I must hold the petitioner entitled to the benefit of

2 M

the consent order, as if the same had been drawn up, passed and entered. It is admitted that the costs in the cause of Richards v. the Earl of Macclesfield, as far as they are the subject of this dispute, are within and bound by the consent order. In this stage of the proceedings, the suit of Fisher v. Fisher becomes defective by the insolvency of the plaintiff. When a suit becomes abated or defective, after a decretal order made therein, the Court will not permit the continuing parties to the suit to take advantage of this defect and to disregard the existing order, without regard to the rights of those who have an interest in the order, but are not yet made parties by revivor or supplement. I may refer to the case of Lee v. Lee (1). The proper course is for the defendant himself to file a bill, or to make the usual application that those who represent the deceased or insolvent plaintiff may reinstate the proceedings by revivor or supplement, or that the bill may be dismissed; but in this case, the defendant, instead of pursuing one of these, the regular courses, has, at the bar, avowed his intention to disregard the consent order, and pay himself the amount of costs due in the suit of Richards v. the Earl of Macclesfield. He insists upon his right so to do; and that, before the suit of Fisher v. Fisher is reinstated, the petitioner has no right to enforce the consent order. If the costs in question were costs in the cause of Fisher v. Fisher I should have no difficulty; for then this would have been in the nature of an application for a stop order, the fund being in the hands of the Accountant General; so also if the application were made in both of the causes of Fisher v. Fisher and Richards v. the Earl of Macclesfield. In the present case, the difficulty arises from this, that the application is not made in the case of Richards v. the Earl of Macclesfield; and the only reason why the application is not made in both of the causes is that they are not both attached to the same branch of the Court. I entertain no doubt that the Judge of that branch of the Court to which the cause of Richards v.

the Earl of Macclesfield is attached, will give credit to the order which I make in

(1) 1 Hare, 617; s. c. 12 Law J. Rep. (N.s.) Chanc. 17.

this cause touching the rights of the party. The intention of the Court, in such cases, is to make it at least the foundation of a stop order, until the right is determined and the bill dismissed, or until the suit be reinstated; after which I shall myself be in a condition to deal with the subject in dispute. If I can get at the justice of the case in this way, I need go no further; but I must not be understood as consenting to the argument that if a person in the position of the defendant will do so irregular a thing as to disregard an existing order of the Court, pending the defect of the suit, the Court may not, if necessary, stop him by an interim order. The order which I now propose to make is in effect this: the Court being of opinion that the costs in the cause of Richards v. the Earl of Macclesfield, directed to be paid by the order of the 24th of July 1844, are within and bound by the consent order in the cause of Fisher v. Fisher, and the petitioner consenting to abide by such order as the Court may make in dismissing the bill, in case he shall not, by supplemental bill or otherwise, make himself a party to the suit of Fisher v. Fisher within such time as this Court may think proper; let the petition stand over for a week, with liberty to the petitioner to make such application as he may be advised in the cause of Richards v. the Earl of Macclesfield, touching the payment of the costs directed to be paid by the order of the 24th of July 1844; and the defendant in the meantime is not to receive the above-mentioned costs.

S. C, her executors, administrators and assigns, during the term of her natural life, subject to the annuities. Whether S. C. took an absolute interest in the leaseholds, or an estate for life only-quaere.

Rules for construction of wills which contain repugnant clauses or expressions.

Edward Lloyd, the testator in this cause, by his will, dated the 15th of April 1789, after giving certain legacies, proceeded as follows:-"I give and bequeath unto Ann Elizabeth Waring, Sarah Calcott the elder, and Mary Spencer, all my leasehold estate in Gloucestershire, held under the Dean and Chapter of Bristol, to hold to them for and during their joint natural lives, and the life of the longer liver of them, but subject, nevertheless, to, and charged and chargeable with the following annuities (then followed two annuities of 201. a year, and one annuity of 10l. a year, to three ladies, for their respective lives); and from and after the decease of the said A. E. Waring, Sarah Calcott, and M. Spencer, I give, devise, and bequeath my said leasehold estate in Gloucestershire (subject to the said several annuities as aforesaid) to the said Sarah Calcott the younger, if she shall be then living, her executors, administrators and assigns, subject to the said annuities charged thereon, during the term of her natural life; and if the said Sarah Calcott the younger shall die in the lifetime of the said A. E. Waring, S. Calcott the elder, and M. Spencer, leaving any lawful issue of her body that shall be living at the decease of the survivor of them, the said A. E. Waring, S. Calcott the elder, and M. Spencer, then I give, devise and bequeath the said leasehold premises, from and after the several deceases of the said A. E. Waring, S. Calcott the elder, and M. Spencer, to such child or children of the said S. Calcott the younger as shall be then living, to be equally divided between them, if more than one, share and share alike; provided that if any child of the said S. Calcott the younger shall be then dead, leaving issue then living, such issue shall be entitled to the same share as his, her or their parent would have been if then living, equally between them if more than one. But if the said S. Calcott the younger shall die in the lifetime of the said A. E. Waring, S. Calcott the elder; and M. Spencer,

or either of them, without leaving any lawful issue of her body that shall be living at the decease of the survivor of them, the said A. E. Waring, S. Calcott the elder, and M. Spencer, then I give, devise and bequeath all my said leasehold estate in Gloucestershire, after their several deceases (but subject to the said two annuities of 201. a year), to Thomas Jerginson and Charles Morrall, their executors, administrators and assigns, for all the then residue of my said leasehold interest therein, in equal shares and proportions."

Then followed a direction that the person in possession of the leasehold estate under his will, should renew the lease from time to time, and that the expenses of the renewals should be borne proportionally by the several persons entitled to the rents, except the annuitants.

The testator died soon after. Sarah Calcott the younger survived A. E. Waring, S. Calcott the elder, and Mary Spencer. She married Mr. Sutton, and died in January 1838, without having had any issue. The defendant, Sutton, claimed the leasehold estate in question, under the will of Sarah Calcott, afterwards Mrs. Sutton.

The plaintiff contended, that Sarah Calcott took an estate for life only in the leasehold estate, and he claimed to be entitled to it under the gift of the testator's residuary

estate.

Mr. Pemberton, Mr. Kindersley and Mr. G. Russell, for the plaintiff, contended that the words of the will expressly confined the beneficial interest of Sarah Calcott to an estate for life; that the words "her executors, administrators and assigns," might have been added to enable her more readily to renew the lease; that if the two expressions could not be reconciled, the words "during her life," which were used last, must govern the construction.

Mr. Tinney and Mr. Dixon, for the defendant, insisted that where the testator wished to give a life estate only, he knew how to do so in clear and correct language; that the charge of the annuities was in favour of Sarah Calcott's claim to have an absolute interest; and if she survived the former tenants for life, there was no provision in the will for her dying without leaving issue.

Mr. Bigg appeared for the other defendant, who was the representative of the surviving trustee of Mr. Lloyd's will.

The following authorities were referred

to:

Doe d. Cotton v. Stenlake, 12 East, 515. Boon v. Cornforth, 2 Vcs. sen. 277. Reece v. Steel, 2 Sim. 233; s. c. 6 Law J. Rep. Chanc. 120.

Spry v. Bromfield, 9 Sim. 534; 10 Sim. 94, 224.

Chambers v. Brailsford, 18 Ves. 368, and 19 Ves. 652; s. c. 2 Mer. 25. 1 Jarman on Wills, 414, 421, 423. 2 Ibid. 241.

Co. Litt. 54, b.

Brine v. Ferrier, 7 Sim. 549.

Doe d. Wolfe v. Allcock, 1 B. & Ald.

137.

Doe d. Amlot v. Davies, 4 Mee. & Wels. 599; s. c. 8 Law J. Rep. (N.s.) Exch. 75.

Nov. 26, 1841.-The MASTER OF THE ROLLS (after stating the circumstances of the case). The question upon this very confused and inaccurate will is, whether Sarah Calcott the younger took an estate for life only, or an absolute interest in the leaseholds bequeathed to her. The events contemplated by the testator were: first, Sarah Calcott the younger dying in the lifetime of the preceding tenant for life, with or without children; secondly, her surviving the three tenants for life. If she died in the lifetime of the three preceding tenants for life, leaving children, who should be living at the death of the survivor of the three, those children were to take. If she died in the lifetime of the three, or either of them, without leaving children, then a gift over. If she survived the three tenants for life, then, after the death of them, he bequeathed the leasehold estate, subject to the annuities, to Sarah Calcott the younger, her executors, administrators and assigns, subject to the annuities charged thereon, during her natural life; and it is upon the construction of this clause that the question depends.

The argument on the one hand has turned on the possibility of attributing a meaning to the words "executors and administrators,' which may be consistent with a limitation for life; and, on the other hand, the possi

bility of attributing to the words "during her natural life," a meaning, which may be consistent with a gift of an absolute interest; and each party has contended, that if the words be irretrievably inconsistent, such of them as are repugnant to the interest which is claimed should be rejected. In a case like this it is impossible to come to a conclusion entirely satisfactory.. We cannot argue on what the testator might reasonably have done if the case had occurred to him; and a will so inaccurately expressed as this is, does not even afford the means of clearly ascertaining the general scope and intention of the testator; and the mode in which the residuary gift is expressed does not afford any evidence of the intention of the testator in the particular clause; and what is still more unfortunate is, that neither of the only two constructions which can be put on the words will have the effect of making every part of the clause clear and consistent.

The plaintiff contends that the words "executors and administrators" may have a just operation in securing to the legatee, as tenant for life, a proportion of the fines which she might have to pay upon renewals, and moreover, that the words "during her natural life," occurring at the end of the sentence, are entitled to greater weight than if they had occurred earlier in the sentence. The defendants contend that the words "during the term of her natural life" may be annexed exclusively to the immediately preceding words "subject to the annuities charged thereon," so as to intimate no more than that the legatee taking an absolute interest was during her life to keep down the charges.

There are objections, and I think serious objections, to both these views of the case; but, on the best consideration which I have been able to give to it, and I own, without being able entirely to satisfy myself, it appears to me that the interpretation in favour of the plaintiff is the most probable, and most consistent with the rule of construction, and with the rest of the bequest; and I therefore think the declaration must be that Sarah Calcott the younger took only an estate for life.

The case was afterwards re-argued before the Master of the Rolls, in March 1842; but his Lordship retained the same opinion