1844.-Man v. Ricketts.

THIS bill was filed by James Man, the creditors' assignee, and George Lackington, the official assignee, of a bankrupt. James Man died in March, 1842, leaving Lackington, surviving him, and a decree was made in the cause on the 22d of February, 1844.(a) In March, 1844, after the decree had been pronounced, but before it had been entered, Lackington, the official assignee, who was then the sole plaintiff, died, and on the 2d of April, 1844, William Turquand was appointed official assignee in room of Lackington. A motion was now made under the 6 G. 4, c. 16, s. 67, and 1 & 2 W. 4, c. 56, s. 24, that the name of Turquand might be henceforth substituted in the place of Man and Lackington, or of Lackington, in all further proceedings in these causes, in the same manner as if Turquand had been originally a party thereto.

By the sixty-seventh section of the 6 G. 4, c. 16, it is enacted, "That whenever an assignee shall die, or a new assignee or assignees shall be chosen as aforesaid, no action at law or suit in equity shall be thereby abated, but the court in which any action or suit is depending may, upon the suggestion of such death or removal and new choice, allow the name of the surviving or new assignee or assignees to be substituted in the place of the former; and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or assignees, in the same manner as if he or they had originally commenced the same."

*Mr. Hallett, in support of the motion.

[*485]

Mr. Kent, contra, for the defendant T. B. Ricketts, objected to the form of the notice of motion, it not stating on whose behalf the motion was made, and contended that this section did not apply to the present case, and that a supplemental bill was neces

sary.

THE MASTER OF THE ROLLS-I think that the Vice-Chancellor of England has made orders of this description, and I will take an opportunity of looking at them.

1844.-Man v. Ricketts.

The act provides that the estate shall vest in the new assignee, and that the new assignee may be substituted by "suggestion." I should have felt some difficulty as to the proper mode of giving operation to the direction as to the suggestion, but for the orders of the Vice-Chancellor of England.

The unreported cases of Fort v. Weston, Bourne v. Walker, and Nouaille v. Flight, were afterwards referred to, and on the 3d of July,

THE MASTER OF THE ROLLS ordered the name of Turquand to be substituted in the place of Lackington deceased as a plaintiff in the suit; and that the suit should be prosecuted in the same manner as if Lackington had been originally a plaintiff therein.

NOTE.-See Mendham v. Robinson, 1 Myl. & K. 217; Bainbrigge v. Blair, Younge, 386; Lloyd v. Waring, 1 Coll. 536.

[*186]

*Between R. FORT AND H. STRACEY, (Assignees of BRICKWOOD, a Bankrupt,) Plaintiffs; and JOHN WESTON, Defendant.

V. C. 1826, March 14.

On the 25th of February, 1826, Bolland was appointed a new assignee of the bankrupt, in the place of Stracy, who had become bankrupt since the commencement of the suit. On the motion of

Mr. Coombe, it was ordered "That the name of Bolland be substituted in the place of the said Stracey as such assignee as aforesaid. And that the suit be prosecuted in the names of the said plaintiffs Fort and Bolland, in the same manner as if the said Fort and Bolland had originally commenced the same."

Reg. Lib. 1825, A. fol. 612.

V. C. 1840, Nov. 19.

BOURNE AND LA MARCHE v. WALKER.

La Marche, one of the assignees of the bankrupt, had died, and Holderness was appointed assignee in his place. On the motion of

Mr. Cankrien, it was ordered, "That the plaintiff be at liberty to substitute the name of Holderness, of &c., in the place of the name of La Marche, lately deceased, as co-plaintiff in this suit with the above named plaintiff Bourne."

Reg. Lib. 1840, A. fol. 74.

THE plaintiffs Nouaille, Vallé, and Day, together with Gibson, since deceased, and Lackington, as the official assignee of Woodgate, a bankrupt, filed their bill in this court against the defendants thereto, and a decree was made therein, and the master made his report. Further directions were afterwards given. George Lackington had since died, and Patrick Johnson had been duly appointed official assignee in the place and stead of Lackington. On the motion of

*Mr. Heathfield, and on proof of the several matters.

[*487]

THE MASTER OF THE ROLLS ordered, "That the name of the said Patrick Johnson be substituted in the place of the said George Lackington, deceased, as a co plaintiff with the plaintiffs Nouaille, Vallé, and Day in these suits: and that these suits be prosecuted in the names of the said plaintiffs Nouaille, Vallé, and Day, and the said Patrick Johnson, in the same manner as if the said Patrick Johnson had been originally a plaintiff therein. And hereof notice was to be given to the defendants forthwith."

ร

1844: April 1, 24.

IN RE BROMLEY

The taxation of a bill was directed on the terms of paying the amount, 501., into court; it was taxed at 251. The court, upon motion, directed payment out of court of the fund deposited.

Terms of taxation after the expiration of one month from the delivery of the bill.

UNDER the solicitors' "act(a) where an application is made to tax a solicitor's bill after the expiration of a month from its delivery, the reference for taxation is to be made "with such directions and subject to such conditions as the court or judge making such reference shall think proper."

The application for taxation being made in this case after the expiration of the month, the Master of the Rolls, by an order of the 8th February, 1844, directed the bill of costs, amounting to 517. 19s., to be taxed upon the payment by the applicants of that sum into court.

The bill was taxed, and 257. 16s. 5d. was found due to the solicitor.

(a) 6 & 7 Vict. c. 73, s. 37,

1844. In re Bromley.

Mr. F. H. Goldsmid now moved, on the part of the client, that the sum of 25l. 16s. 5d. might be paid out of court to the solicitor, and that the remainder might be paid back to the client. *The only question was whether this could be done on motion. (a)

[*488]

THE MASTER OF THE ROLLS took time to consider the case, and under the circumstances, and to save the expense, he made the order. He, however, afterwards observed that he begged it to be understood that this was not to be the general practice.[1]

NOTE.-Payment into court is not now required at the Rolls, where the applicacation for taxation is after the expiration of a month from the delivery of the bill of costs; but it is ordered, "that no proceedings at law be commenced against the petitioner pending the reference, but the petitioner is to procure the master's report in a month, (unless the master shall certify that further time is necessary to enable him to make his report,) or the order is to be of no effect."

[*489]

1844: June ; July 31.

*MADEN V. VEEVERS.

A defendant admitted the possession of documents, but stated that they were all prepared and made since the dispute arose, in contemplation of the litigation of that dispute, and her defence against the plaintiff's claim: but she did not connect them with her professional advisers: Held, that they were not privileged, and ought to be produced.

A bill was filed, insisting on a partition already made between the plaintiff and efendant, who were tenants in common. The bill contained an alternative prayer for a partition under the court. The defendant insisted on the invalidity of the partition, but admitted the possession of documents showing the manner in

(a) See Heathcote v. Edwards, Jacob, 504; Oliver v. Burt, 1 Beavan, 583; Garratt v. Niblock, 6 Beavan, 143.

[1] The strictly regular mode of obtaining money out of court is by petition. Oliver v. Burt, 1 Beav. 583. And see Wynne v. Jackson, 2 Russ. 351; Powell v. Sonnet, 3 Russ. 556; Furnival v. Bogle, 4 Russ. 142; Hulbert v. McKay, 8 Paige, 652.

1844.-Maden v. Veevers.

which she had since dealt with her share of the property. Held, that the plaintiff had an interest in them, if it were only for the purpose of ascertaining who were tenants in common with him.

THE principal facts of this case will be found stated in a former volume,(a) from which it will appear that the plaintiffs, the defendant, and others, had been or were tenants in common of certain lands and coal mines. A partition had been made by agreement between the parties in 1812. The defendant, Mrs. Veevers, was then under coverture, and had not concurred in any fine so as to bind her estate. The object of the bill was either to establish the partition, or, in the alternative, to effect a partition by means of the usual commission issuing out of this

court.

The defendant, Mrs. Veevers, by her answer stated, that she had certain deeds and documents mentioned in the schedule, but she said that the same deeds, documents, &c., specified in the first part of the schedule, related exclusively to the title of the defendant, and of the several parties, therein before mentioned, entitled under the appointment executed by her, and under the will of Sagar Veevers, in and to the several estates, hereditaments, &c. whereto she and such several other parties were respectively entitled; and she submitted she was not bound to produce them, and she said that the several documents, papers, and writings in the second part of the schedule, "related wholly and exclusively to the dispute between the defendant and the said complainant, *respecting the defen- [*490] dant's aforesaid title to the said estates, hereditaments, and premises, whereof, wherein, and whereto the defendant was possessed, interested, and entitled, and that the same and each of the last mentioned documents, papers, and writings had been, respectively, prepared and made since the said dispute arose, and with a view to, and in contemplation and prospect of the litigation of the said dispute, and of the defendant's defence against the claim of the said complainant; wherefore the defendant submitted and insisted, that she was not bound, and ought not to be required to produce, or deposit, or part with the possession of

(a) 5 Beavan, 503.