of this property to the executors of Robert Jones, who filed a bill for a foreclosure against him in 1837. This was before the mortgage to Brooks; and in that suit of Jones v. Creswicke, there was a decree for an account, and while the Master was taking those accounts, the mortgage to Brooks was made.

After Booth had become possessed of the securities, he filed a bill for a foreclosure against Humphrey Creswicke, by which he prayed to have the benefit of the former suit between Jones and Henry Creswicke, and which was then depending. A decree was made in the second foreclosure suit by Booth against Humphrey Creswicke by default, he having been then in prison. He afterwards obtained a rehearing, which the Court allowed upon certain conditions as to costs, and the cause was reheard. The proceedings are very complicated. The question being as to the validity of the decree made in the absence of Humphrey Creswicke, and therefore upon the sole responsibility of the plaintiff, and whether it can stand as a whole, or whether it must be varied in any, and, if any, in what particulars. That is the present state of the proceedings.

There were four objections taken to the decree; the first was, that the deeds were proved viva voce in court, and that was said to be incorrect in this case, because the parties should have had the opportunity of cross-examining the witnesses. The second objection was, that the securities to Mr. Brooks, who was a solicitor, were given to secure past, and also for future costs, and that a security for future costs, by the course of the Court, is invalid. The third was, that certain costs which the plaintiff had been obliged to pay, in this cause, to the executors of Jones and others, who had been made defendants, were improperly charged in the decree against Humphrey Creswicke, and that the decree was in that respect incorrect. And the fourth objection was, that when these mortgagesecurities were executed, or when they were transferred by Brooks's assignees to Booth, certain personal securities (of Humphrey Creswicke) were delivered over to Booth, which should have been made the subject of an account before the Master. These are the four objections. As to the first objection, I am of opinion that the course taken to prove the deeds was regular; that the deeds were properly proved vivá voce at the hearing. The distinction is, that where the validity of a deed is in question, but the execution of it is not disputed, it can be proved viva voce on the hearing. This was properly decided by the Vice-Chancellor of England, in the Attorney-General v. Pearson (7 Simons, 309). But then it is said, that, admitting that general principle, the deeds could not be so proved in this case, because the consideration was disputed, and therefore there ought to have been an opportunity of cross-examining the subscribing witness. I have read the bill and answer, and I think there was no question raised on this part of the case which rendered the cross-examination of the subscribing witness necessary. It is not stated or suggested in the bill, nor does it appear by the answer, that there was any question as to the consideration having been paid or not paid at the time of the execution of the deeds. It is quite clear, and is admitted on both sides, that no consideration was paid at that time; the consideration was paid in small sums, before the execution of the deed, and at different periods. There is no issue, and no question as to any consideration having passed at the time of the execution of the deed. To have examined the subscribing witness would have been quite idle and unnecessary. It seems to me, therefore, that there is nothing in that objection, and that these deeds were properly proved vivá voce at the hearing. The second question is as to the security given for future costs. The mortgage-deed purported to be given to secure money then due and costs, and also as a security for money to be advanced, and for future costs. The decree declared the whole sum properly chargeable. If it embraces too much, it must in this respect be rectified. I am of opinion, that a security cannot be taken by a solicitor for future costs, and that such is the settled rule of this court. In Jones v. Tripp (Jacob, 322), which was cited upon this point, Lord Eldon, in distinct terms, said, "The Court would not permit an attorney to take from his client a mortgage for costs to be incurred. The deed, on the face of it, is not supportable,-so clearly so, that I cannot permit it to be argued; and I should be shaking the jurisdiction of the Court, if I allowed a trial on such a subject: it would be, to leave a jury to decide a point of law which is well settled." Then it was said that the report of that case was incor

rect, but the learned gentleman by whom that report was taken was remarkable for his accuracy and intelligence, and its correctness was spoken to by Mr. Cooper, who was counsel in that cause, who says, that the report, in this respect, is perfectly accurate. That case, therefore, is an authority applying to the subject in the most distinct manner. Shortly afterwards, the same question came before the Master of the Rolls (Sir Thomas Plumer), in Williams v. Piggott (Jacob, 598), who doubted whether a security given for past and future costs was bad as to the former; he referred the first to the Master, and reserved the second for future consideration. The same cause having afterwards come before Lord Gifford, on further directions, and is reported in the same book, he decided that a security could not be taken by a solicitor for future costs, that to that extent the deed was invalid, and he refused to decree an account of costs incurred subsequent to the date of the mortgage-deed. He referred to a case of Pitcher v. Rigby (9 Price, 79), before Chief Baron Richards. That was a case where a solicitor had taken a mortgage-security for past and future costs. The Chief Baron held that to be irregular, and that a security for future bills of costs for business to be done was invalid. He stated that in precise terms. But it was said that it was unnecessary for the decision of the case. I admit that it was unnecessary for the decision of that case, but it came before the Court upon the face of the deed, and the Chief Baron, without taking notice of that circumstance, might have decided the case on other grounds. However, he cannot be considered as having gone out of his way, in stating that which appeared upon the face of the deed, that the deed was to that extent and in that respect invalid. It was suggested that the other judges did not concur with Chief Baron Richards in that opinion; but it was a part of the opinion he expressed when he gave his judgment; and, at the conclusion of the report, the reporter expressly says, the other judges entirely (that is the expression) concurred in that judgment. The same point has been decided in the same way by the Lord Chancellor of Ireland, in the case of Uppington v. Bullen (2 Drury & Warren, 184). He said he considered the point as settled beyond the reach of controversy. It was observed, in that case, that the security was to pay a precise sum of money (3007.) for the purpose of completing the cause: I think that makes no difference; but in an agreement to pay a sum of money, it must be subject to taxation, and any attorney would not be entitled to more than the taxed costs. No such distinction was drawn in the observations made by the Lord Chancellor of Ireland. He states the position in the terms I have mentioned, as too clear for argument. Numerous cases were cited on the other side, but they do not seem to bear very strictly on this question. They were chiefly cases of maintenance. There was one from 1 Freeman, 17 (Pierson v. Hughes), a common law case, in which the point was raised, but it was argued on the point of maintenance. I think no inference can be drawn from that case, because, although the security was for past and future costs, there was a general demurrer; and the party being, at all events, entitled to the security for his past costs, the general demurrer was, on that account, overruled. There was another objection also, which was, that the security was not given by the party himself, but by a third person; it was contended that that was maintenance. Then it was said, it did not appear that the third person was not closely connected, in point of relationship, to the party; and, if so, it was not maintenance, and on that ground the demurrer could not be sustained. No inference, therefore, can be drawn, either one way or the other, from that case.

The case of Proof v. Hines (Talbot, 111) was not between attorney and client at all, but a tradesman and his wife advanced a sum of money (I think for the purpose of enabling a poor man to make some inquiry with respect to some right he thought he had, with the view to a suit), and they took a bond for 1,000l.; that bond was set aside by the Court. It was no question there between attorney and client. Another case of Saunderson v. Glass was also cited; that was a gift of 1,000l., not a security for costs, and that was set aside. It was the case of a gift to a solicitor by a client, which was ordered to stand as a security for any money due to Glass, but beyond that it was set aside as a fraudulent contrivance. Then a case of Newman v. Payne (2 Vesey, Jun. 202) was cited; but that case does not apply, and for this reason; there were, in that case, excessive bills of costs, and the attorney took care

to have security given after the bills were settled. The only question there was as to setting aside a bond for 1,000l., and a question with respect to the sale of a horse. It does not appear to me to apply to this case. Nor has Wood v. Downes (1 Ves. & Beames, 49) the slightest application; because there the application was to set aside a deed which had been obtained by a solicitor having security for future costs, but the party making the application to set aside the deed proposed in his bill to pay any sum that, on taking the account, might be found due to the solicitor. It appears to me, then, that none of these cases impeach the authority of the decisions to which I have referred on the other side. Peacock v. Cole, an unreported case, was cited by Mr. Wakefield. I have seen the order in Peacock v. Cole, and it appears that the question that was distinctly raised there was, as to a security for future costs, and the Master was directed to take the accounts, and he took the accounts as to future costs and as to the past costs. It afterwards came before Vice-Chancellor Leach, on the subject of interest, and he referred it back to the Master to compute interest. What afterwards became of it does not appear; but, after all, it does not weigh much, because in that case there was an offer to pay any sum of money that might appear, on taking the accounts, to be due. There had been a verdict for 1,000%., and the sum found due was 850., and the amount of future costs, for which security had been given, was only 36l., therefore I do not think that much reliance is to be placed on that case. I have gone through the cases on this side, because Mr. Wakefield argued the case with great earnestness, and made many apposite observations on the whole subject; but I think, taking the cases on the one side, and putting them in opposition to the cases on the other, that there is no balance between them; and I am bound to hold that the settled rule of this Court is, that a solicitor shall not take from his client a security for future costs. In this respect the decree must be rectified.

As to the third point, which was this, the plaintiff, in his bill for a foreclosure, claimed to have the benefit of the proceedings in the suit of Jones v. Creswicke, and for that purpose made all the persons interested in that suit parties to this suit, but having done so, at the hearing they were dismissed with costs, and then this decree directs the plaintiff to charge those costs against Humphrey Creswicke. The question is, whether he is entitled to do so? Prima facie, having brought parties before the Court, whom he was obliged to dismiss at the hearing, and having been obliged in consequence to pay their costs, it would seem that he had improperly brought them before the Court; and I think in that respect it is improper, as those persons should not have been parties. Look at the decree; what is the decree? The decree is, that as between the plaintiff and Humphrey Creswicke, in whose place the plaintiff was entitled to stand, and whose name he was to be at liberty to use, he should have the benefit of those proceedings. Who had any interest in the suit, but Humphrey Creswicke? Why was it necessary to bring any of the parties before the Court, as between the plaintiff and Humphrey Creswicke? He was to stand in the place of Humphrey Creswicke, and nothing more; he was to use the name of Humphrey Creswicke. Humphrey Creswicke's interest, therefore, is to be bound and prosecuted precisely as it was before; it does not affect the interest of the other parties in any respect, except that the benefit of those proceedings, carried on in the name of Humphrey Creswicke before, is to revert, in his absence, to the plaintiff. I am of opinion, under the circumstances, that it was not necessary to make the other parties to the suit of Jones v. Creswicke parties to this suit. The plaintiff having incurred these costs in his own wrong, is not entitled to have them again from Humphrey Creswicke. That is the third point; so that in this respect, also, the decree must be rectified as far as relates to those costs charged against Humphrey Creswicke. As to the fourth point; at the time these securities were assigned to the plaintiff Booth, by the assignees under the bankruptcy of Brooks, there were also certain personal securities handed over to the plaintiff. It does not appear what those personal securities were, but it is said they were taken up by Booth. Neither does it appear that Humphrey Creswicke had any interest whatever in the personal securities; they were securities belonging to Humphrey Creswicke, which he had pledged to Brooks, and, as an available security, of course he would have been entitled to an account of them. But nothing of the kind appears, and the whole transaction seems to have

consisted of accommodation bills between Humphrey Creswicke and Brooks, on which the former had not been called on to pay any thing. Supposing the personal securities, therefore, to have been some of these outstanding accommodation transactions, in respect of which Humphrey Creswicke never paid any money, and if the securities were bills, from the lapse of time, he never can now be called upon to pay any thing in respect of them, as the remedy is barred by the Statute of Limitations; it appears to me, that to order any inquiry to be made as to them would be altogether idle; it would involve the parties in expense which could be productive of no benefit and is unnecessary. That objection to the decree, therefore, will not be allowed. It is a very complicated case, and these are the four points to which my attention was directed in the progress of the cause. The decree must be rectified as far as it relates to the security given for future costs, as also those costs which were paid by Booth for having improperly brought the parties in Jones v. Creswicke before the Court, and with which Humphrey Creswicke was charged by the decree. It will be for the parties to consider how the opinion I have expressed will apply to the second mortgagedeed. When the second mortgage-deed was executed, those costs which had been secured by the first mortgage-deed had been actually incurred, and therefore, in preparing the minutes of the decree, it will be necessary to consider how that affects the second mortgage-deed. The minutes must be spoken to if the parties do not agree upon them.

After the above judgment had been delivered, the cause was several times mentioned. Wakefield objected to the minutes delivered out by the registrar, as not being in conformity with the judgment, various costs to which the plaintiff as mortgagee was entitled not having been provided for.

Stuart. The cause has been heard and judgment given, but no order has been made as to these costs.

The LORD CHANCELLOR.-On the motion for a rehearing, it was granted upon the terms that the party applying to have the cause reheard should pay all the costs, and that the other party should be in precisely the same situation as if no default had taken place. If that is not provided for in the decree, injustice will be done, but if my attention was not called to the question of these costs when the cause was reheard, I am not in a condition to vary the decree. But in this case I do not consider the minutes as settled; either party may be heard, for the registrar merely took down the four points I decided, leaving the formal parts to be added. Neither is the delivery out of the minutes material when the counsel on the one side was to prepare them and the counsel on the other side to see them, as was to have been done in this case. The case stands as if counsel had said, on hearing the judgment, "that point has not been disposed of." And always considering that the basis of this decree was an arrangement, these points may be taken to have been then mentioned.

On a subsequent day the minutes having been again spoken to,

The LORD CHANCELLOR.-The decree must be drawn up according to the nature of the pleadings, and if that does not meet the merits of the case, the plaintiff must present a petition to bring the particular points before me.

June 26.

The plaintiff accordingly presented a petition which, besides stating the proceedings as above set forth, alleged that the plaintiff having been found entitled to the surplus in the cause of Jones v. Creswicke, which had been paid into court, had, on the 27th of December, 1838, presented a petition, praying that it might be paid to him; that a bill had, in February, 1833, been filed by one James and his wife, who was the daughter of Humphrey Creswicke, against Humphrey Creswicke and all his incumbrances, claiming to be entitled, under his marriage settlement, to 6,000l., part of the sum of 10,000l., which had been dismissed with costs. James, however, was unable to pay the costs, and the plaintiff claimed to have his costs in the suit of James V. Creswicke against Humphrey Creswicke before he should be allowed to redeem the estate. Upon the plaintiff's petition coming on to be heard, Sevier, who had incurred costs as a defendant in the cause of James v. Creswicke, appeared by counsel, and prayed that his costs might be paid out of the fund in court, before any payment to the plaintiff, and the Vice-Chancellor made an order in accordance

with the prayer. Sevier's costs, taxed at 1897. 9s. 7d., were afterwards paid, and the balance of the fund paid over to the plaintiff. That on the application of Humphrey Creswicke, before referred to, for an enlargement of the time of payment of the mortgage-money due from him, three months' time was granted, upon the terms of Creswicke paying plaintiff's interest and costs. That Jones, the surviving mortgagee of Henry Creswicke, had filed a supplemental bill in the suit of Jones v. Creswicke, to which the plaintiff in this suit had put in his answer. That on the 21st of March, 1840, Humphrey Creswicke had filed a bill, marked to be heard at the Rolls, against Brooks and the plaintiff, to impeach their mortgages as fraudulent and void; to which bill plaintiff had put in a long answer, and no further proceedings had been taken by Humphrey Creswicke in that suit. And the plaintiff by his present petition asked that the decree should order Humphrey Creswicke, before he is permitted to redeem the property, to pay to the plaintiff the costs of all proceedings in the Master's office in this suit, and in the suits of Jones v. Creswicke, Jones v. Booth, and James v. Creswicke, and that the plaintiff should be declared to have a lien on the mortgaged premises for the costs incurred by him in the suit of Creswicke v. Brooks. The petition also prayed that Creswicke should dismiss his own bill before allowed to redeem.

Wakefield and Beales, in support of the plaintiff's petition, contended that the plaintiff, as mortgagee, was entitled to all the costs which he might be put to in defending the mortgagor's title, if impeached, whether the attack upon it may be right or wrong, and cited Godfrey v. Watson (3 Atkyns, 518); Ellison v. Wright (3 Russ. 458); Hunt v. Fownes (9 Vesey, 70); Lacon v. Mertins (3 Atkyns, 4). Sevier, the prior mortgagee, has had his costs in James v. Creswicke out of the fund in Jones v. Creswicke, and the plaintiff is entitled to the same thing. It was said that Creswicke did not appear on the petition when the order for payment of costs was made, but he was served with the petition, and he might have appeared. The Vice-Chancellor granted the defendant an enlargement of time, upon the express condition that he should pay all the plaintiff's costs.

The LORD CHANCELLOR.-On those applications to enlarge the time, the enlargement was made upon certain conditions. Those conditions must be adhered to. So the subsequent costs in Jones v. Creswicke would not have been incurred if the defendant had not made default.

Stuart and Parry, for the respondent, Humphrey Creswicke.-The object of the decree is not now to settle what may ultimately be found due from the defendant, but what sum will be inflicted upon him in the way of present payment. The conditions imposed on obtaining the rehearing of the cause were, that the defendant should repay certain costs, and such further costs as the Court might impose at the rehearing. The decree had been varied as to the security for future costs; and there was another variation, that the plaintiff was not entitled to the costs he had paid to persons improperly made defendants. The Court held those persons to be unnecessary parties. The minutes contain every thing that was decided by the judgment. The case of Lord Hardwicke's, referred to, was upon exceptions.

Wakefield, in reply.-The plaintiff had a right to attend the Master in the place of Creswicke. But for the rehearing, the defendant would have been absolutely foreclosed; the rehearing lets him in to redeem; therefore, all subsequent costs are within the condition.

The LORD CHANCELLOR.-I consider this decree precisely as if I was now pronouncing it upon the rehearing. I varied the decree of the Vice-Chancellor in two particulars, and there was no other question then made before me. The defendant is entitled to the same indulgence as he would have on a decree nisi, on the condition of paying all costs incurred in consequence of his not appearing to resist the decree being made absolute. The question of these costs was never presented to my consideration; it was only argued as to validity of the decree. I have to consider whether the Master would allow these costs as a matter of course, if not, I am further to consider whether there should be any special direction in the decree as to these costs. It was open to the parties to argue as to the costs, as I only considered the merits of the decree, without any point as to the costs.

This case stands for judgment on the question of costs only.