Mr. Tinney, Mr. Elderton and Mr. Dixon, for the sub-lessees.

Mr. Kindersley and Mr. Simpson, for the representatives of Foord.

THE MASTER OF THE ROLLS:

Upon the real question in this case, I am of opinion that the lease of 1791 cannot stand. The only ground upon which it was contended that it could be sustained was, that it contains certain recitals, which, if true, would show that there was a consideration given for this lease, a consideration which would have been beneficial to the charity. It is not a building lease, and one of the rules laid down in this Court has been, that a building lease for a longer term than ninety-nine years cannot stand, unless there be some special ground on which it can be protected. This is a lease for ninety-nine years, containing no covenants to keep the premises in repair, and no covenants as to laying out any money upon them: I am therefore of opinion, that it cannot stand.

The Attorney-General does not desire to disturb the sub-lessees, and therefore they will retain their interest. The only question as to them is whether they are entitled to costs; I cannot say that I think they are entitled to costs; this is not a case in which costs can be ordered to be paid out of the charity, and they have not made out a case to entitle them to costs as against Mr. Foord.

There is another question raised with regard to the costs, which involves the matter in great perplexity. This cause having been at issue, a proposal was made by the representatives of Mr. Foord to compromise the suit. They were willing to compromise the suit on certain terms. The Attorney-General thought, and after *all that has taken place, I am not sure the Attorney-General was not right, that it would be expedient, and for the benefit of the charity, to stop the litigation, and obtain for the charity the increased rent for the future, together with the costs of the suit, by which means the beneficial objects of the charity would be immediately brought into exercise; but the trustees represented that this compromise would be very disadvantageous; that the value of the property was such, that to accept that increased rent for the remainder of the time would be injurious to the charity. In that state of things it seems to have been absolutely necessary that the matter should undergo some subsequent investigation; perhaps by a reference to the Master to enquire whether it was beneficial; but the course

adopted was to bring the cause to a hearing. If publication had then passed, which I suppose it had, witnesses could not have been examined in the original cause without an order; but no such order was obtained, and not only was a bill of revivor filed to bring Mr. Foord's representatives before the Court, but also a bill of supplement, stating all the matters as to the compromise, and putting in issue again those very points raised in the original cause. It has been stated, that these proceedings took place for the purpose of having the decision of the Court on the costs of the petition. I confess, after hearing all that has been said, that I am by no means satisfied that it was at all necessary. It was clearly put in issue in the original information that the value was above 601. a year. The answer stated it was 441. a year. The trustees alleged that the answer was wrong, that if the information were proceeded in, it would establish that the value was greater. All that might have been proved in the original information, and I am very much at a loss to discover on what ground the representatives of Mr. Foord are to be called upon to pay the costs of that proceeding. *I certainly do not think that it is a sufficient justification of the proceeding, to say that that was necessary for the purpose of bringing the point to a decision. The point in issue was the value, and the question raised by supplement was the costs of the petition, which might have been determined on the petition being brought on with the cause.

I find some difficulty in dealing with those costs. I think that the right order will be, that the costs of the supplemental information be deducted from the costs of the original information which Mr. Foord must pay, the costs which then remain due to the Attorney-General should be thrown on the charity.

In the present state of the thing, I cannot say the trustees were wrong in suggesting and bringing forward the point. If they had been, they ought to be personally charged with the costs; but I cannot say I think they were (1).

(1) See Attorney-General v. Pargeter, ante,

P. 41.

A.-G.

v.

FOORD.

[292]

R.R. VOL. LXIII.

6

1843. April 19, 24.

Rolls Court.
Lord
LANGDALE,
M.R.
[304]

[305]

CATTELL v. SIMONS (1).

(6 Beav. 304-308.)

Costs receivable and payable by two parties, ordered to be mutually set off, without regard to the lien of the solicitors.

The MASTER OF THE ROLLS has jurisdiction to direct costs which have been ordered by the LORD CHANCELLOR to be paid by the defendant to the plaintiff to be set off against costs ordered by the MASTER of the Rolls, to be paid by the plaintiff to the defendant. The order may be obtained on motion, and the notice of motion may be given before the taxation.

The LORD CHANCELLOR on the 8th of November ordered the defendant to pay costs to the plaintiff, but the order was not completed till the 23rd of December. The MASTER OF THE ROLLS on the 15th of December ordered the plaintiff to pay costs to the defendant, and on the 19th the plaintiff offered to set off the costs. The defendant in January following issued an attachment for the costs: Held, that the plaintiff, notwithstanding he was in contempt, might, under these circumstances, move to set off the costs. THIS case came on upon a motion by the plaintiffs, that costs ordered by the LORD CHANCELLOR to be paid by the defendant to the plaintiffs might be set off against costs ordered by the MASTER OF THE ROLLS to be paid by the plaintiffs to the defendant. The circumstances will conveniently appear by the following chronological statement:

On the 8th of November, 1842, the LORD CHANCELLOR ordered the defendant Flecknoe to pay costs to the plaintiffs.

On the 8th of December the minutes being mentioned to the LORD CHANCELLOR, a motion was directed to be made.

On the 15th of December the MASTER OF THE ROLLS ordered the plaintiffs to pay costs to the defendant Flecknoe.

On the 19th of December the plaintiffs gave notice to the defendant that they were willing to set off the costs they had to pay against those they had to receive.

On the 23rd of December the minutes of the LORD CHANCELLOR'S order were settled.

On the 11th of January following, the defendant issued an attachment against the plaintiffs for 10l. 16s. 4d. part of costs under the MASTER OF THE ROLLS' order.

On the 13th of January the defendant issued a subpœna for 241. 19s. 8d., the remaining costs under the same order.

On the 14th of January the subpoena for costs was served on the plaintiffs, and on the same day the plaintiffs gave this notice of motion to set off the costs.

On the 16th of January the plaintiffs' costs under the LORD CHANCELLOR'S order were taxed at 381. 14s.

(1) Robarts v. Buée (1878) 8 Ch. D. 198, 47 L. J. Ch. 414.

Under these circumstances, 35l. 16s. being due from the plaintiffs to the defendant and 381. 14s. from the defendant to the plaintiffs, this motion was now brought on.

Mr. Teed and Mr. W. T. S. Daniel, in support of the motion.

Mr. Pemberton and Mr. Chandless, contrà, objected.

*

Mr. Teed, in reply.

[306]

THE MASTER OF THE ROLLS:

Where a party owes another 35l. 16s. for costs, and at the same time is entitled to receive 381. 14s. from him for other costs, nothing would seem more reasonable than that these sums should be set off one against the other. Several objections have, however, been made to this application.

First, that it interferes with the rights of the solicitor, but I have no doubt whatever of the rule, that the lien of the solicitor for costs, is not to interfere with the rights of the parties. I have already had occasion to consider the point; and I think the case is reported (1).

Secondly, it is said, that the application ought not to be made by motion, but I cannot see why the Court is not to proceed upon motion; or why the parties are to be put to the trouble and expense of attachments, and other proceedings, to work out their rights, when there is a plain equity to have the costs set off. If I had been aware of the circumstances when the order was made here, I should, if I had jurisdiction, have ordered the costs to be set off. I am of opinion, that the application is not improper by motion.

Thirdly, it is said, that the plaintiffs' costs had not been ascertained until after the notice of motion had been given, but I am of opinion, that it was not necessary *to wait until the amount of the costs had been ascertained.

The fourth objection is, that an attachment had issued against the plaintiffs prior to the notice of motion, and that being in contempt, the plaintiffs cannot be heard. I think, however, under the circumstances, the objection ought not to prevail, seeing that the offer to set off was made on the 19th of December, that the LORD CHANCELLOR's order was not ultimately settled until the 23rd of

(1) Bawtree v. Watson, 2 Keen, 713.

[ *307 ]

CATTELL

2. SIMONS.

April 24.

[308]

December, and that the attachment was issued on the 11th of
January.

The last is the only serious objection, namely, that the order asked for will interfere with the LORD CHANCELLOR'S order, and that the plaintiffs ought to have applied to the Lord Chancellor on the subject, when the matter was before him on the 23rd of December. It does appear to me, that the LORD CHANCELLOR had jurisdiction over the matter, and might either have ordered the costs to be set off, or have directed that the order should not be carried into execution, until an opportunity had been given to the plaintiffs to apply; I must reserve the point as to the interference with the LORD CHANCELLOR'S order.

THE MASTER OF THE ROLLS:

By an order made by the LORD CHANCELLOR, the defendant was ordered to pay costs (the amount of which has been ascertained to be 381. 148.) to the plaintiffs. By an order made at the Rolls, the plaintiffs were ordered to pay costs (the amount of which has been ascertained to be 35l. 16s.) to the same defendant. *The defendant, who has not paid the 38l. 14s. due from him, claims to be entitled to compel the plaintiffs to pay the 35l. 16s. due to him. And the plaintiffs asks, that one set of costs may be set off against the other, and that the defendant may not be permitted to enforce the payment of the costs due to him, without paying the costs due from him.

It appears to me, that in making this application, the plaintiffs do not seek to vary the order made by the LORD CHANCELLOR in their favour, but claiming against the defendant the duty of his obedience to that order, and admitting in favour of the defendant the duty of their own obedience to the order made here, they ask, that the defendant may not be at liberty to enforce obedience to the order made here, without, on his part, obeying the LORD CHANCELLOR'S order, and they offer to accept what is due to them in satisfaction pro tanto of what is due from them. They do not ask for the costs. of this application, which (under the circumstances to which I adverted at the time when the motion was made), I should not have been disposed to grant. I think that the order must be made to set off the costs due to the defendant under one order, against an equal amount of the costs due from the defendant under the other order (1).

(1) See also Harmer v. Harris, 25 R. R. 20 (1 Russ. 155).