Tasker v. Small, 3 Myl. & Cr. 63; s. c. 7 Law J. Rep. (N.S.) Chanc. 19. The Aberaman Iron Works v. Wickens, Law Rep. 5 Eq. 485; s. c. on appeal, Law Rep. 4 Ch. Ap. 101. The West Midland Railway Company v. Nixon, 1 Hem. & M. 181. Secondly, practically it had become an onerous burden upon the main lines of railway in the kingdom to be brought into court again and again merely as formal parties to suits of this description; and they felt called upon, in self-defence, to resist the liability. The result of recent decisions having been to place railway companies in the position of ordinary purchasers in respect of unpaid purchase-money, the ordinary rules of the Court must prevail, and in that view it was not necessary to make the Midland Railway Company party to this suit any more than it would be necessary to make the tenants of an estate parties to a vendor's suit for specific performance.

MALINS, V.C. (without calling for a reply) said-This being a bill for specific performance, the first defendants admit that they have no defence to the decree asked, and there is now no dispute as to the amount of unpaid purchase-money and interest; accordingly there must be a decree for payment within three months, with a declaration of lien in default of payment. The only question I have to consider is, whether the Midland Railway Company are necessary and proper parties to this suit. Now whether or not they are strictly in possession of the land, it is clear that they are working the line with their own engines, carriages and staff of officials under the provisions of the Stonehouse and Nailsworth Railway Act, therefore they are, de facto, in possession under a parliamentary title. I agree with Mr. Cotton's argument that, in cases of specific performance as between vendor and purchaser, the ordinary rule laid down in many cases, and followed by myself in The Aberaman Iron Works v. Wickens, which was so far confirmed by Lord Cairns on appeal, is not to make any persons parties to the suit other than the contracting parties; also, that in such a suit where the purchaser has entered into possession and created tenancies, the tenants would not be

necessary parties. But this is an exceptional case, where a second company, not the pur chasers, are in actual possession under a parliamentary title of the line, if not of the land over which the line runs ; and it would be difficult in such a suit-the object of which is to restrain the use and occupation of the land, and the result of which may be that, in default of payment of the purchasemoney, the land over which the railway runs may be ordered to be delivered up,-I say it would be difficult to hold that a decree could be made in such a suit in the absence of this company, without giving them an opportunity of shewing why they should not retain their occupation of the land. The ordinary rule, therefore, does not apply. This express point was decided by Vice Chancellor Stuart in the case of The Mid-Hants Railway Company, where the same objection was taken; and I am unable to distinguish that case, in substance, from the present. The same rule was acted upon by the Master of the Rolls in Walker v. the Ware, Hadham and Buntingford Railway Company, where the Great Eastern Railway Company were made parties by amendment. Lastly, I understand, a case precisely similar has occurred very lately, before James, V.C., in a bill filed against this same company-Marling v. the Stonehouse Railway Company (1),-where the same objection was again raised without success, although it is said that the counsel for the Midland Railway Company were taken by surprise; the point, in fact, was so simple, and is now so settled by authority, that I take it it did not admit of much argument. The Midland Railway Company are therefore, in my opinion, proper parties to this suit; the object of bringing them before the Court being, that they should not be disturbed in their possession by proceedings taken in their absence. No costs are asked against them, but they must bear their own costs.

Solicitors-Messrs. Frere & Co., for plaintiffs; Messrs. T. White & Sons, for the Stonehouse Railway Company; Messrs. Beale, Marigold & Beale, for the Midland Railway Company.

1) Ante, page 306.

The plaintiff, Charles Manby, had for some time prior to the month of December, 1863, employed the defendants Henry Robinson and William Webster and one George Robinson, who were then in partnership together, under the style of "Robinson, Webster & Robinson," as his attorneys and solicitors.

In December, 1863, Henry Robinson retired from the partnership, but the business was carried on by the other two partners for some time, when they also separated and dissolved partnership.

On the 21st of September, 1868, Henry Robinson filed a bill in this Court against his former partners, William Webster and George Robinson, with the usual prayer for an account of the partnership dealings and transactions, and for an injunction and a receiver. The defendants in the suit of Robinson v. Webster put in their respective answers on the 16th and 17th of December, 1868, and the plaintiff in that suit had not down to the time of the hearing of the present appeal moved either for an injunction or a receiver.

By an order of the Master of the Rolls, made on the 7th of June, 1866, it was ordered that the said Henry Robinson and William Webster and George Robinson should deliver their bill of costs to the plaintiff, and that the same should be taxed, and the amount paid within twenty-one days of the service of the certificate. The costs were taxed, and the sum due certified to be 570., and service of the certificate was made upon the plaintiff on the 24th of

December, 1868. Each of the defendants Henry Robinson and William Webster had given notice to the plaintiff that he was entitled to the whole sum, and had required the plaintiff not to pay any part thereof to the other defendant. George Robinson made no claim to the sum. Under these circumstances the plaintiff filed his bill in this suit, offering to pay the amount into court, and praying that the defendants might interplead, and might be restrained from taking any steps to enforce the order for payment of the taxed costs, and might pay the costs of the suit.

The usual affidavit denying collusion was filed with the bill. The defendants appeared to the bill, and the plaintiff on giving notice of motion, in accordance with the terms of the prayer of the bill, filed a second affidavit, which, however, was a mere echo of the bill. Upon this the defendant William Webster filed an affidavit on the 19th of January, 1869, which set out at length the proceedings in the suit of Robinson v. Webster, and further charged the plaintiff with acting throughout in collusion with Henry Robinson in order to prevent him, the defendant William Webster, from receiving and recovering the 570l. from the plaintiff, as, under the arrangement between the late partners in the firm of Robinson, Webster & Robinson, as stated in the affidavit, he was entitled to do.

The plaintiff subsequently filed a further affidavit proving that each of the defendants had demanded in writing payment to himself of the 5701.

The matter came before Vice Chancellor Malins, on the 9th of February, 1869, on motion by the plaintiff to be at liberty to pay the sum of 570l. into court, and that the defendants might be restrained from taking any proceedings to enforce the order of the Master of the Rolls. His Honour, upon the defendant William Webster undertaking not to enforce the order of the Master of the Rolls until the 9th of March, 1869, in order to afford time to the defendant Henry Robinson to move in the suit of Robinson v. Webster for an injunction, if he should be advised so to do, made no order on the motion.

The plaintiff now moved to discharge his

Honour's order, and for leave to pay the money into court, and for an injunction.

Mr. J. Pearson and Mr. Currey, for the plaintiff. On the authorities we are clearly entitled to what we ask

Langston v. Boylston, 2 Ves. jun. 101. In an interpleader suit no discussion on the merits can be entered into until the hearing

Masterman v. Lewin, 2 Ph. 182; and the Court is at the present stage of the suit concluded by our affidavit of no collusion, and will not admit an affidavit to the contrary

Stevenson v. Anderson, 2 Ves. & B. 407.

a

Mr. Glasse and Mr. Townsend, for the defendant William Webster. When plaintiff has filed, beyond the common affidavit of no collusion, further and unnecessary affidavits, as has been done here, the defendants are not precluded before the hearing from filing counter-affidavits, and having the case discussed on the merits. The plaintiff has by his conduct forfeited his strict rights, and the order of the Vice Chancellor gives him all he can justly require.

Mr. J. Pearson, in reply, referred to The East and West India Dock Company v. Littledale, 7 Hare, 57.

Mr. Peck, for Henry Robinson.

LORD JUSTICE SELWYN said, that he had no doubt that ordinarily, according to the authorities, in an interpleader suit the common affidavit of no collusion was conclusive until the hearing, and that the plaintiff on making it was entitled to pay the money into court, and to the protection of the Court until the hearing. There were two questions in this case: first, whether the plaintiff had forfeited his right by filing two further affidavits; and secondly, whether the order of the Vice Chancellor gave him that protection to which he was entitled. He was of opinion that the plaintiff had not by the course he had adopted forfeited his right to protection, and that the Vice Chancellor's order did not afford him that protection. On the other hand, the plaintiff might have paid the money into court on an ex parte

application. He had not done so. The Court could, before they made an order in his favour, compel him to give the usual undertaking as to damages, and under the circumstances of the case they were inclined to take that course; if the plaintiff would give the undertaking, the order of the Vice Chancellor would be discharged, and an order made in the terms of the notice of motion; if he declined, the matter would stand where it was.

LORD JUSTICE GIFFARD concurred. Ifthe undertaking were given, the costs would be costs in the cause; if not, the motion would be refused, without costs.

The plaintiff subsequently gave the undertaking.

a deed for the benefit of his creditors, there was a sum of 2281. 4s. 8d. in his hands standing to the credit of Barlow's account. This sum (being in excess of the amount of his costs in the suit) Barlow directed to be applied and set off in payment of such costs.

Barlow, with his wife, now petitioned that the amount of costs so accounted for by him to Esam might be apportioned out of the fund in court and paid over to him.

Mr. Schomberg, for the petition, admitting that it was a case in which one of two innocent parties must suffer, argued that the payment to Esam by way of set-off was sufficient satisfaction of the costs under the order, and that Barlow was entitled to be recouped out of the fund in court. He relied on

Waller v. Holmes, 1 Jo. & H. 230; s. c. 30 Law J. Rep. (N.S.) Chanc. 24; and also cited

Ward v. Hepple, 15 Ves. 297.
Moody v. Spencer, 2 Dowl. & Ry. 6;
s. c. 1 Law J. Rep. K.B. 1.

Mr. J. Pearson and Mr. Bardswell, for Messrs. Few, contended: 1, That the order of June, 1867, which was drawn up in the usual form and had been made by the Court in Barlow's presence, was express notice to him that the costs were to be paid into the hands of Messrs. Few, and not to Mr. Esam; 2, That the petitioners could not now come and ask the Court in effect to vary the terms of that order. Moreover, the alleged payment to Esam was not in fact a payment specifically made in respect of these costs at all, but merely an arrangement by way of set-off between Esam and his client, in consequence of the act of bankruptcy. Such a mode of payment could be no satisfaction to Messrs. Few, nor could it disentitle them to the benefit of the order. So long as there was a fund in court, Messrs. Few were entitled to assume that their costs were safe, and that the Court would assist them in enforcing their lien.

MALINS, V.C. (without calling for a reply). -This petition raises a point of considerable importance to London agents and country solicitors, as well as to those suitors who

employ country solicitors having London agents. By the decree in the cause of Peatfield v. Barlow, dated the 3rd of June, 1867, it is ordered that the costs of the defendant Barlow and his wife, the present petitioners, should be paid to Messrs. Few & Co. It appears that Mr. Esam, of East Retford, was Mr. Barlow's solicitor, and that Messrs. Few were Mr. Esam's London agents, and in that character only had they anything to do with the cause. It also appears that Mr. Barlow, as is not unfrequently the case with solicitors and their clients in the country, had from time to time certain sums of money standing to his credit in the hands of his solicitor, Mr. Esam, which by arrangement between them carried interest. Nothing took place until the 23rd of June, 1868, on which day Esam executed a formal deed of assignment for his creditors under the Bankruptcy Act. At that time there was in his hands this sum of 2281. 48. 8d. belonging to Barlow; now, although this was a debt carrying interest, it is clear that Barlow had the right at any time to say to Esam, "You have that sum of money in your hands belonging to me; I wish you to apply it in payment or part payment, as the case might be, of my costs in the cause of Peatfield v. Barlow." That beyond all question was Barlow's strict right, and that right to have the fund applied in payment of these costs was not affected by Esam's virtual bankruptcy.

But it is contended that the order of the 3rd of June, 1867, being in its form a direction to pay the costs to Messrs. Few, gave them a new and independent right as against Barlow. But why did the order direct payment to them? Solely as a matter of convenience to the Court, because their names appeared on the record as agents of Mr. Esam, Barlow's solicitor, and only as such agents were they to receive the money.

Indirectly, no doubt, London agents are the agents of the principal in the suit, but the order directs the payment to them merely as agents of the solicitor for whom they act.

If it were otherwise, a person in the country employing a solicitor in whose hands he might have deposited a large sum of money as ample security for any costs likely to become due, after arranging that

such money should go against such costs, might suddenly find himself called upon to pay the costs twice over, because there had been an order to pay the costs to the London agents, creating (as is now contended) a new right in them, although the country client had never heard of the London agents, and knew of no one but his country solicitor, who was, in fact, the only person employed by him. I am unable to see any distinction between such a case and the present, and therefore I cannot accede to the respondent's argument. Mr. Barlow employed Mr. Esam; Esam, therefore, was the only person who had a claim against him, and Barlow having once paid him, Messrs. Few & Co., as merely representing Esam, could have no further or better right than Esam himself had, and that is the rule laid down in the cases cited by Mr. Schomberg.

[His Honour referred to Waller v. Holmes.] -It may be that, if Messrs. Few & Co. had given Mr. Barlow notice not to pay any money to Mr. Esam without providing for their costs, that would have disentitled Mr. Barlow from afterwards paying such costs to Mr. Esam, but, in my opinion, no notice could have deprived Barlow of his right to set off the money in Esam's hands. I therefore come to the conclusion that, although in point of form the costs were directed to be paid to the London agents, such payment was directed to be made to them not as independent solicitors, or as having any independent right, but in respect of their position as it appeared upon the record, namely, as agents of Mr. Esam, who was alone the solicitor of Mr. Barlow. Therefore, according to the prayer of the petition, the costs directed to be paid to Messrs. Few & Co. must be deemed to have been satisfied to the extent of the sum set off for payment thereof by Barlow. As it is a novel point, and the enforcement of an extreme right, I shall make no order as to costs.

Solicitors-Messrs. C. & J. Allen & Son, agents

for Messrs. Newton & Jones, East Retford, for petitioner; Messrs. Few & Co., for other parties interested.

The defendant was the commanding officer and the plaintiff was one of the captains of a volunteer rifle corps; and in 1861 certain land and buildings were demised to them for a term of years.

The plaintiff, who was a manufacturing engineer, under an agreement with the corps, incurred certain expenses in executing works necessary to prepare the buildings comprised in the lease for use as a drillinghall, and being unable to obtain payment of the expenses so incurred he filed a bill against the present defendant to recover the sum due, and on the 22nd of April, 1868, obtained a decree declaring that he was entitled to a charge on the premises for the sums of money and costs therein mentioned.

The present bill was filed to give effect to this charge by means of a sale of the premises or a competent part thereof.

Mr. Jessel and Mr. Kekewich appeared for the plaintiff.

Mr. Southgate and Mr. Simpson argued, on the authority of

Darke v. Williamson, 25 Beav. 622, that the Court would not direct a sale of property which was used for public purposes.

The MASTER OF THE ROLLS.-Darke v. Williamson is not in point. In that case I declined to give any lien except one upon the deeds; and I pointed out how such a limited lien might be beneficial. But in the former suit between the present parties my object was to give an effective charge upon the property, and that charge must be enforced in the ordinary way.

Solicitors - Mr. Thomas Hoskins, for plaintiff; Messrs. Hayes, Twisden & Parker, for defendant.