only about 1,000l. due in respect of such interest. Under these circumstances, they then sold the Albert Gate property for 21,6001., which they then received and had since retained in their hands. In taking the accounts of what was due upon the mortgages, the chief clerk had continued to charge interest on the full amount of the principal sums down to the date of his certificate. To this Elliot objected, urging that the proper mode was to apply the money received upon any sale in accordance with the trusts of the deed under which it was sold, viz., in payment of costs and interest due thereon, then in satisfaction of the principal thereof, and the balance only, if any, in satisfaction of the interest and principal due on the other mortgage, and to charge interest only on the reduced amount of principal; or even if the plaintiffs had a right to apply the proceeds of any sale in reduction of the interest on both mortgages, yet that as in May, 1861, all interest was paid up, the balance of upwards of 20,0001. then in their hands ought to have been deducted from the principal, and interest since that time charged only on the remainder.

Mr. Jessel and Mr. H. M. Jackson, for Elliot.

Sir R. Palmer, Sir R. Baggallay, and Mr. G. Williamson, for the plaintiffs. Where the same person holds two mortgages from the same mortgagor the law consolidates them into one, so that he cannot be called upon to give up either till both are satisfied

Watts v. Symes, 21 Law J. Rep. (N.S.)
Chanc. 713; s. c. 1 De Gex, M. &
G. 240;

Selby v. Pomfret, 1 Jo. & H. 336;
s.c.3 De Gex, F. & J. 595; 30 Law
J. Rep. (N.s.) Chanc. 770;
Neve v. Pennell, 33 Law J. Rep. (N.S.)
Chanc. 19; s. c. 2 Hem. & M.
170.

And a security in the form of a trust is in no way different from an ordinary mortgage

Bell v. Carter, 22 Law J. Rep. (N.S.) Chanc. 923; s. c. 17 Beav. 11. The two mortgages are to be looked on as one, and as when we took possession the interest was in arrear the account cannot

be taken against us with rests, which is in effect what Elliot demands. See the judgment of Turner, L.J., in

Nelson v. Booth, 27 Law J. Rep. (N.S.)
Chanc. 782; s. c. 3 De Gex & J.

119.

The ordinary rights of a mortgagee are not interfered with by an express trust of the proceeds of sale in his security

Latter v. Dashwood, 3 Law J. Rep. (N.S.) Chanc. 149; s. c. 6 Sim.

462.

We cannot be obliged to take our money in driblets.

Mr. Jessel in reply.-I will admit this case to be the same as if there were but a single debt and mortgage, i.e., the principle of consolidation in its extremest form, and that it is true that a mortgagee cannot be compelled to take his money by driblets. But he may do so if he likes, and here the mortgagees have, by selling piecemeal the property provided to pay their debt, in fact paid themselves by driblets. The cases cited merely shew that mortgagees must be fully paid, but in no manner touch the question as to how the account of how much is really due to them is to be taken, and in fact Selby v. Pomfret is an authority in my favour.

THE MASTER OF THE ROLLS (on June 27) gave judgment, deciding the two first questions in favour of the plaintiffs, and upon the third to the following effect:

The third exception has been called taking the account with rests.

It arises thus:-The chief clerk has taken the account in the usual way against a mortgagee in possession when no annual rests are directed. He has set down the sums received in one column, the interest due and the costs in a second column, and the capital debt in the third; and at the conclusion of the account he has deducted the sums received in the first column from the aggregate amount of the two other columns. Mr. Elliot insists that, when the sums received in the first column far exceeded the interest and costs due, the balance should have been deducted from the principal, and that it should have (which it has not) been set off in part discharge of the principal.

As a general rule, there can be no doubt

that the chief clerk is correct in the manner in which he has taken the account. But there is this peculiarity in this case, which, in my opinion, makes it exceptional. In May, 1861, the plaintiff's sold part of the property mortgaged, namely, the house at Albert Gate, for 21,600. The effect of this immediately was to put 20,000l. in their hands above the interest and costs due to them.

This sum of 20,000l. was the property of Hudson. What were they to do with it? They might pay it over to him; they were not bound to do so, but I think it impossible that they can contend that they are entitled to keep this money, to make interest upon it for ten years, and still to charge interest on the whole amount due to them on the larger sum. It is not a case of rests, or one of taking the account in any particular manner, but it is a case of this description :-A mortgagee in possession, with a power of sale, sells a portion of the estate, say one half, and receives purchase money suffi cient to pay all interest and costs and half the principal due. Can he say that he will charge interest in future on the whole debt, and only allow the mortgagor the rents for the unsold moiety, and nothing in respect of interest on the money received and employed by himself? I think not. It is true, as said by the counsel for the plaintiffs, that a mortgagee is not obliged to accept payment of part of the debt, and that the whole must be paid, if any; but then why did they retain the 20,000l. belonging to Mr. Hudson ? If they merely kept down the interest and then paid the balance over to Mr. Hudson, I should assent, but not when they actually keep in their hands, and make interest on the sums received, at a rate, if employed in the conduct of the railway, as I assume it to have been, at least as great as they are able to charge against Mr. Hudson on this account. Nothing obviously could be more unjust or pernicious in its result, or would ultimately more certainly take away the whole property of the mortgagor, than to allow the mortgagee to go into possession under a power of sale, to pay off the greater part of the debt, and diminish the source from whence the interest is to be

paid, and yet charge interest on the whole debt as it stood when he first took possession. I am of opinion, therefore, that the third exception to the certificate must be allowed, and that the proper mode of adjusting the account in the case of a sale of any part of the mortgaged lands is to wipe off so much of the principal as the surplus of the purchase money, after payment of interest and costs, will discharge, and then go on with the account as against a mortgagee in possession, but with an altered and diminished debt.

Solicitors-Messrs. Williamson, Hill & Co., agents for Messrs. Newton, Robinson & Brown, York, for plaintiffs; Messrs. Elmslie, Forsyth, & Sedgwick, for defendants.

BACON, V.C. 1870. Nov. 19, 24.

TWYNAM v. PORTER.

Solicitor and Client-Costs-Charging Order Statute 23 & 24 Vict. c. 127– 8. 28-Property recovered or preservedReceiver-Compromise.

In a suit by one of several tenants in common of real estate instituted to obtain from the defendant, to whom the plaintiff had conveyed her share in trust by a revocable deed, accounts of his receipts and payments on her behalf, and a reconveyance of her share, and praying for a declaration that the defendant was a trustee for the plaintiff of a certain mortgage upon the estate, for a transfer whereof she had advanced a sum of money to the said defendant, a receiver of the estate was appointed at the instance of the plaintiff. Subsequently the suit was compromised by the plaintiff and defendant, without the intervention of their solicitors. By the compromise the estate was to be sold, and a portion of the proceeds thereof paid to the plaintiff:-Held, that by the appointment of the receiver, the property had been preserved, and accordingly the plaintiff's solicitors were entitled to have, paramount to the compromise, a charge for their costs of the suit upon the shares of the plaintiff and of another of the

This was a petition presented by the solicitors of the plaintiff, and of Edward Twynam, one of the defendants in the above suit, praying for an order under section 28 of the Attorneys and Solicitors Act, 1860 (statute 23 & 24 Vict. c. 127), declaring them to be entitled to a charge for their taxed costs of the suit upon the property recovered and preserved in the suit (1).

In 1855 the plaintiff, who was then an infant, her two brothers, Edward and John Twynam, and her sister, the wife of the defendant Porter, were entitled, subject to certain mortgages, as tenants in common to certain hereditaments at Winchester and Fisherspond. In that year Porter, who was a solicitor, on behalf of the plaintiff and her co-tenants, entered into the management and receipt of the rents and profits of the estates. Shortly afterwards, Edward and John Twynam, who were resident in Australia, conveyed their shares by revocable deeds to Porter, upon trusts for sale and management. In June, 1858, the plaintiff, who had shortly before attained 21 years of age, handed to Porter a sum of about 6427., as she alleged, for the purpose of the same being applied by him in procuring a transfer to the plaintiff for her own benefit of a mortgage upon the Fisherspond estate. In November, 1861, the plaintiff went to join her brothers in Australia, and previously to her emigration she executed a conveyance of her share in the estates to Porter, upon trusts for sale and management, reserving to herself a power of revoking such deed. In 1864 Porter took to himself a transfer of the Fisherspond mortgage, in respect of which the plaintiff had handed to him the above-mentioned sum. In 1866 the plaintiff returned to England, and shortly afterwards her brother John died, leaving his share of the estate equally to the plaintiff and the defendant, Edward Twy

(1) The words of the order set out below follow those in the 28th section of the Act.

Upon her return, the plaintiff applied to the defendant, Porter, for accounts of his dealings as her trustee, and not being satisfied with the accounts rendered, by a deed-poll executed in May, 1868, she revoked the conveyance of her share to him, but Porter refused to give effect to such revocation. Edward Twynam shortly afterwards likewise revoked the conveyance of his share of the estates to Porter. In June, 1868, the plaintiff filed her bill in this suit, praying for-1. An account of Porter's receipts and disbursements on her behalf; 2. A declaration that the deed of conveyance to Porter had been effectually revoked by the deed-poll of May, 1868, and a reconveyance of her share comprised therein; 3. A declaration that Porter was a trustee for her of the Fisherspond mortgage, and an assignment of the same to her; 4. Payment of the amount found due from Porter; 5. An injunction to restrain him from dealing with the plaintiff's share; 6. The appointment of a receiver of the estates, and consequential directions, &c. The bill was subsequently amended, making Edward Twynam and Mrs. Porter parties thereto, and praying for a declaration that the purchase of the reversion of a leasehold portion of the property which had been made by Porter enured to the benefit of the owners of the estate. In May, 1869, upon the plaintiff's application, an order was made as against Porter for the appointment of a receiver of the estates, and a receiver was shortly afterwards appointed, and by an order made in July, 1869, he was ordered to keep down the interest of the mortgages.

Mrs. Porter having subsequently died, an order was made for carrying on the suit without any person representing her estate. No further order was made in the suit, and on the 16th May, 1870, notice of motion for a decree was served upon the defendants.

On the 17th of May, a meeting was arranged between the plaintiff and the defendant, Porter, at which, without the intervention of their respective solicitors, an agreement was come to between them to compromise the suit. By the terms of the compromise the estate was to be sold, a sum of 5001. out of the proceeds thereof

paid to the plaintiff, then the mortgages paid off, and then a sum of 350l. appropriated to the payment of the plaintiff's solicitor's costs, and the residue to be divided among the several persons entitled to the estate.

On the 1st of June, 1870, the plaintiff married the Rev. Mr. Allardice, and on the 24th of June she obtained an order to change her former solicitors who had acted for her and also for the defendant, Edward Twynam, throughout the suit, and to substitute Porter's solicitors. The former solicitors, after having made several ineffectual applications to the plaintiff and her new solicitors, to be informed of the terms of the compromise, then presented this petition, praying for the declaration of charge above mentioned, and that the amount of taxed costs, &c., found due to them as the solicitors of the plaintiff and of the defendant, Edward Twynam, respectively, might be raised by a sale of their respective shares and interests in the premises, or "out of any other property recovered by or preserved for them respectively in the suit," and that till such sale the receiver appointed in the suit might be continued, at least so far as regarded the shares and interests of the plaintiff, and the defendant, Edward Twynam.

After the petition was presented, the petitioners for the first time were informed of the terms of the compromise, and of the fact that Mrs. Allardice had, upon her marriage, executed a settlement of the money which was to be paid to her under the compromise. No order of Court confirming the compromise had been made or applied for. It was conceded that the receiver had not only kept down the present interest on the mortgages, but had paid off some arrears of interest due thereon.

Mr. Kay and Mr. Thurstan Holland, in support of the petition, argued that the property had been preserved" within the meaning of the section, by the appointment of the receiver in the suit

Bailey v Birchall, 2 Hem. & M. 371, and accordingly the petitioners were entitled to a charge thereon. The petitioners were also entitled to a charge upon whatever property might be coming to the plaintiff under the compromise

White v. Pearce, 7 Ha. 276; s. c. 18

Law J. Rep. (N.S.) Chanc. 462 ; Davies v. Lowndes, 3 Com. B. Rep.

823.

The provision in the Solicitors Act was intended to establish and fortify the rights of solicitors to a lien on property recovered for their clients, and not to curtail those rights. It had been passed with a view of extending the right of lien to real estate after the judgment

in

Shaw v. Neale, 6 H.L. Cas. 581; s. c. 27 Law J. Rep. (N.S.) Chanc. 444; where it had been said that solicitors could have no lien upon real estate. They also

cited

Scholefield v. Lockwood, 38 Law J.

Rep. (N.S.) Chanc. 232; s. c. Law
Rep. 7 Eq. 83.

Mr. Fry and Mr. Kekewich, for the respondent, Mrs. Allardice, the plaintiff in the suit. There had been nothing recovered or preserved for the plaintiff in this suit except by the compromise which had been effected not by the instrumentality of the petitioners, but in opposition to their advice and wishes. The plaintiff's title to her shares in the property had not been in controversy in the suit, but nothing except those shares could be said to have been preserved, therefore the Act did not apply to the case.

Bailey v. Birchall (supra)

was different, since the whole object of that suit was the interim protection of the property pending a suit in the Ecclesiastical Court, and of course the property there was protected by the appointment of the receiver. In this suit there had been no beneficial result to the plaintiff except under the compromise. They cited

Berrie v. Howitt, Law Rep. 9 Eq. 1. As regarded the compromise, it was open to the parties (in the absence of collusion) to enter into a compromise, even though the effect of it would be to deprive the solicitors of their lien

Davies v. Lowndes, 3 Com. B. Rep. 823

the compromise had been under an order of the Court. In any case the petitioners could not both approbate and reprobate the agreement. They could not claim to be interested in the moneys to be paid under the provisions of it to the plaintiff, and at the same time refuse to take their costs in the way the compromise had provided for them.

Mr. Methold, for the trustee of Mrs. Allardice's settlement, asked for his costs as against the petitioners, and said that the practice was to make no order as to the petitioner's costs.

BACON, V.C. (without calling for a reply) said. It seems to me that the plaintiff's are entitled to the order they ask for. The petition states the title of Mrs. Allardice and Mr. Edward Twynam to the estate. Without going through the paragraphs in the petition in which that title is stated, or of Mr. Porter's dealings with the estate, which by the bill were complained of, rightly or wrongly, or shewing that the estate, originally held in four shares or four equal interests, is now vested in three interests, I may say the bill prays for an account of the receipts and payments, and dealings, and transactions of Mr. Porter, to whom the estate had been entrusted by the several deeds mentioned in the petition; a declaration that the trusts of the deed mentioned had been effectually revoked by the deed of May, 1868, and for the delivery up of the said indenture to the plaintiff, and if necessary, the execution of a reconveyance to the plaintiff of all her share and interest comprised in the same indenture-the subject of the suit therefore was the share and interest of the plaintiff-a declaration that to the amount which should be found to have been received by Porter on account of the plaintiff for the purpose of being applied by him in procuring to the plaintiff the transfer of this mortgage on the hereditaments and premises, he was a trustee of the mortgage for the plaintiff, and that he might be decreed to make and execute a proper assignment thereof; for payment by the defendant, Porter, to the plaintiff of what shall be NEW SERIES, 40.-CHANC.

found to be due from him to her; and an injunction to restrain him from interfering with the management and so on of the plaintiff's shares, and from dealing with the mortgage, and for a receiver, and for necessary and proper declarations, directions, &c. Then subsequently an order was made for the appointment of a receiver. Now it has been suggested that nothing is protected or preserved by these proceedings, excepting only the 500l., the sum mentioned in the compromise. Then the rest of the petition I do not stop at present to dwell upon, because all that took place connected with the compromise, and all that is to be done in consequence of the compromise is, in my opinion, subject to the claim of the petitioners under the Statute. I think that by the appointment of a receiver in this suit, the object of which was to recover possession of the estate which was intrusted to Porter, that property is effectually preserved, and it comes clearly within the provisions of the Act. If that is so, it cannot signify in the slightest degree what the terms of the compromise were. Whether they were binding on the parties is wholly unimportant, because the right of the petitioners to have out of the property protected and preserved, payment of the costs which have been incurred for the benefit of the plaintiff, is a claim paramount to any title which can be asserted under the compromise, whatever it may be. The same observation is to be applied to the settlement which Mr. Methold re

presents. I do not think the petitioners are obliged to run any risk as to the result of the sale to be effected under the compromise. I think in the words of the statute (as they are embodied in the prayer of the petition), they are entitled to an order for taxation of their costs, to order that the amount of their costs shall be raised out of the share of the petitioner in the suit, and out of the share of Edward Twynam also. Edward Twynam is served with the petition, whether he appears or not; as service is proved, that does not signify. That is the only order to be made.

The following is a minute of the order made:

Declare that the petitioners are entitled

F