1841.-Attorney-general v. Nethercote.

[*529]

THE ATTORNEY-GENERAL v. NETHERCOTE.

1841 25th January.

Under 1 & 2 Vict. c. 110, s. 17 & 18, interest is recoverable on costs which one party is ordered to pay to another, but not on costs directed to be raised out of an estate.

THIS was a suit relating to a charity. By the decree, the costs of one of the defendants were ordered to be taxed and paid out of the charity estate.

It being probable that some time would elapse before the means of paying the costs could be obtained:

Mr. Knight Bruce, for the defendant, asked that it might be directed, by the decree, that the amount of the costs when taxed, should be paid with interest at four per cent. from the date of the Master's certificate until the time of payment. He said that, under the 1st & 2d Vict. c. 110, s. 17, judgment debts carried interest at four per cent. from the times when they were entered up; and that the 18th section enacted: "That all decrees and orders of courts of equity, and all rules of courts of common law, and all orders of the Lord Chancellor or of the court of review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money or any costs, charges, or expenses shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any such moneys or costs, charges or expenses shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts, shall and may be exer

cised by courts of equity with respect to matters therein [*530] depending, and by the Lord Chancellor *and the court of review in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy; and all remedies hereby given to judgment creditors, are, in like manner, given to persons to

1841.-Bedwin v. Asprey.

whom any moneys, or costs, charges or expenses are, by such orders or rules respectively, directed to be paid."

THE VICE-CHANCELLOR said that the section of the Act referred to, seemed to him to relate to those cases in which one party was directed to pay costs to another party, and not to cases in which costs were directed to be paid out of an estate.

1841 28th January.

BEDWIN v. ASPREY.

The Court will not remove a next friend, merely because he is nearly related to or connected with the defendant; but it must see that there is a probability that the infant's interest will be prejudiced, if the next friend is allowed to remain.

THE bill was filed on behalf of an infant, who was an orphan, for the purpose of having the rights and interests of the infant and of his sister, the defendant Sarah, the wife of the defendant Edward Clowser, under a will, ascertained and declared by the Court. The defendant Asprey was the husband of the infant's aunt; and he and the defendants Grace and Weller had been in receipt of the rents of the estates in question in the cause; and an account was prayed against them accordingly.

Those three defendants moved that George Clowser, the infant's next friend, might be removed, and that it might be referred to the Master to appoint a new next friend.

The substance of the affidavit in support of the motion, was that the interests of the infant and his sister *were [*531] adverse to each other; that the next friend was the father of her husband; that the solicitor of the next friend was also the solicitor of the sister and her husband; that the infant, who was 17 years of age, had written a letter to Asprey (which was set forth) strongly disapproving of the suit being conducted by the next friend.

1841.-Bedwin v. Asprey.

An affidavit in opposition to the motion, was made by the next friend and his son, stating that the suit had been instituted in consequence of three gentlemen at the bar, who had been consulted as to the construction of the will, having differed in opinion on the subject; that the suit had been instituted, bona fide, for the infant's benefit, and was intended to be prosecuted without delay; that the son and his wife had employed the next friend's solicitor, in order to save expense and because they relied on his integrity and that the infant's interest would be in nowise prejudiced thereby.

Mr. Knight Bruce and Mr. Coleridge, in support of the motion, said that the infant and his sister had interests adverse to each other; that the next friend was the father of the sister's husband; and it was natural that his feelings should be in favor of his son; that it would be in the solicitor's power to injure, materially, the infant's interest by making an imperfect statement of his case to his counsel; and that Asprey, who was the infant's nearest relation except his sister, disapproved of the suit being conducted by the next friend. Peyton v. Bond.(a)

Mr. Jacob, Mr. G. Richards, Mr. Cooke, and Mr. W. H. Smith, opposed the motion. They said that the persons [*532] *by whom the motion was made, were the accounting parties in the suit; and that it was most improper that they should have any voice in the selection of the person who was to prosecute the suit against them; that the question in the cause was merely a question of construction; that no ex trinsic facts were to be dealt with; and, therefore, it was not a case in which the infant could be prejudiced even if the next friend or the solicitor were to take a bias against him; that no misconduct was alleged against the next friend; that, in Peyton v. Bond, the question was not a mere question of construction, and, in that case, the interests of the father and of his daughters were completely adverse to each other; the next friend was the

(a) Ante, Vol. I. p. 390.

1841.-Bedwin v. Asprey.

father's brother; and had taken upon himself the office at the father's request, and he, as well as his solicitor (who was the father's solicitor also,) had been witnesses for the father in his suit in the Ecclesiastical Court.

THE VICE-CHANCELLOR :-In Peyton v. Bond, Sir A. Hart, V. C., says: "The Court will watch, with great jealousy, a solicitor who takes upon himself a double responsibility; and, if it sees a chance of his miscarrying, will take care, where the plaintiffs are infants, that he shall not be permitted to stand in that relation to an adverse defendant under circumstances of very adverse interest." I can not but suppose that, by the word "chance," Sir A. Hart meant, not a mere possible contingency, but something like a probability. And it appears that, in Peyton v. Bond, there was strong ground for supposing that the suit would not be conducted properly, if the management of it were left to the uncle of the infants and his solicitor; both of whom had been witnesses, for the father, in his *unrighteous suit in the Ecclesiastical Court, and had [*533] supported his interest against the interest of his infant

daughters. In that case, too, the application was made by a person who had no interest adverse to the interest of the infants.(a) In this case, the application is made on behalf of the defendants, Asprey, Grace and Weller, who are the three accounting parties in the suit. There are no facts in litigation between the sister and her brother, the infant. The only question in the cause is a question of construction, and that of so difficult a nature that the three eminent counsel who were consulted upon it, differed in opinion from each other; and, in consequence of that difference, the bill was filed in order to obtain the opinion of the Court upon the meaning of the will. Therefore, there cannot be the slightest danger of any facts being kept back, which, if brought forward, might influence the decision of the Court either one way or the other.

(a) The application was made by T. Nelson, who was one of the executors under Mrs. Peyton's will, and a defendant to the bill of revivor and supplement.

1841.-Ward v. Barton.

If Peyton v. Bond is to be the authority on which this case is to be decided, I must see that there is a probability that the interest of the infant will be sacrificed, or, at least, neglected, if the father of the sister's husband is permitted to remain the next friend. I do not, however, see that there is any reasonable probability that the suit will be mismanaged if it remains as it now is.

The consequence is that the motion has been misconceived, and must be refused with costs to be paid by the parties on whose behalf it has been made.

If a mortgagee of leaseholds, before he files a bill of foreclosure, is under the necessity of citing the next of kin of the deceased mortgagor, before the Ecclesiastical Court, in order to compel them to take out administration to the deceased; this Court will not allow him the costs of the citation, unless he states his case for them, on his bill.

THE bill was filed, by a mortgagee of leaseholds, for a foreclosure of the mortgage.

The mortgagor being dead and no person having taken out administration to his estate, the plaintiff, before the institution of the suit, cited his next of kin, in the Ecclesiastical Court, in order to compel them to take out administration. Upon which the defendant, who was the brother of the mortgagor, took out administration.

The suit having been heard and a decree made in the usual form.

Mr. Teed, for the plaintiff, asked that the costs which the plaintiff had incurred in the Ecclesiastical Court, might be included in the account directed by the decree. He cited Hunt v. Fownes.(a)

(a) 9 Ves. 70.