Jackson v. Woolley.

a residuary legatee of an estate, however insolvent, has a right to file a bill for an account at the expense of the executor. The suit has not been of the slightest benefit to any person whatever, as no creditor has come in under the decree. The report having been confirmed absolutely before Jackson died, the object of the supplemental suit was, clearly, to get the plaintiff's own fund out of court, and the defendants ought not to have offered any op position to it, but ought to have disclaimed; and, as they did not think proper to take that course, they ought to pay their

own costs

Mr. G. Richards and Mr. K. Parker, for Mrs. Jackson and her children, said Woolley ought to pay the costs of the original suit and proceedings, of which he sought to have the benefit; and that, besides, he had acted improperly in paying the testator's debts, some of which he had paid after putting in his answer admitting a balance to be due from him, and the rest, after the decree had been made. Mitchelson v. Piper,(a) Larkins v. Paxton;(b) Barker v. Wardle.(c)

The Vice-Chancellor :-The Master has allowed those payments. If they were improper, you ought to have excepted to the report.

Mr. Cooper, Mr. Piggott, and Mr. Prendergast, for the defendants to the original suit, who were in the same interest as the plaintiffs in that suit, said that, in a suit by residuary legatees as well as in a suit by creditors, *the costs of the [*15] suit were the primary charge upon the fund in court; and that Woolley could not stand in a better situation than the creditors whose debts he had paid would have done.

Mr. Knight Bruce, in reply, said that the costs of the original suit were incurred by Jackson, and not by his widow and chil dren; that, if they had incurred any costs, they had lost their right

Jackson v. Woolley.

to be repaid them, by their not having procured a new next friend to be appointed; and that the other defendants must abide by the consequences of the next friend having died.

THE VICE-CHANCELLOR:-The first question is, what is the general rule with respect to the costs of a suit instituted by creditors or by residuary legatees, where there is a fund in court. I apprehend the rule to be that, in general, the costs of the suit must be first paid out of the fund. Therefore, prima facie, if the original suit had been brought to a hearing for further directions, the plaintiffs' costs and also the defendants' costs, would have been paid out of the fund. But, in this case, the surviving plaintiffs did not bring on the cause for further directions. After the report had been confirmed, Jackson died; and then Woolley filed a supplemental bill, which set forth the death of Jackson; that he had no interest; that, by his death, the suit was without a next friend, and no further proceedings could be had in it unless a new next friend was appointed. The supplemental bill then stated that Mrs. Jackson had refused to become or to procure any other person to become the next friend of the infants: and the answer admits that an application had been made to her,

on the subject, by Mr. Woolley's solicitor, to which she [*16] did not give any answer; and the result was that she did

not put the suit in a situation in which it could go on. She might have named herself to be the next friend of the infant plaintiffs; or she might have prevailed on some other person to be the next friend; but she took no step to carry on the original suit. The effect was that Woolley was obliged to file a supplemental bill; and, in the answer, it is admitted that that necessity was imposed on him by those who might have carried on the original suit. Then they now appear only because Woolley has brought forward the suit; and they ask for the costs of the original suit up to the time of Jackson's death. Those costs, if due at all, could be payable to no one but his personal representative; but there is no person before me in that character. If Mrs. Jackson does not carry on the suit, and there is no per. sonal representative of her husband before the court, there is no

Jackson v. Woolley.

person to whom I can direct the payment of the costs up to the time of the death of Jackson. Woolley alone has brought forward the matter by filing the supplemental bill; and, therefore, I cannot give the surviving plaintiffs in the original suit, their costs of that suit.

The defendants in that suit are in no fault; and, consequently; they must be paid their costs; and as there is a fund in court, their costs must be paid out of it.

In the course of the argument it was contended that, where there is a creditor's suit, the executor has no right to pay a debt after decree; but that observation must be taken with some qualification. If an executor, after decree, makes payment of a debt with a view to be reimbursed out of a fund in court, he must be reimbursed out of the fund, but not till after payment of *the costs of the suit; that is, he must run the [*17] risk of the fund not being sufficient to pay the costs and also to reimburse him.

If

Then with respect to the costs of the supplemental cause. I deprive the surviving plaintiffs of their costs of the original suit, I cannot deprive them of the costs of the supplemental suit: for some machinery was necessary to be put in motion, in order to determine what was to be done with the fund in court. And my opinion is that that fund must be applied, in the first instance, in paying, as between solicitor and client, the costs of Woolley and Johnson of both suits; then the other defendants in the original suit must be paid their costs of both suits out of it; and Mrs. Jackson and her children must be paid the costs of the supple mental suit only.

Smith v. Poole.

SMITH V. POOLE.

Statute of Limitations-Debt-Debtor and Creditor-Acknow ledgment of debt.

1841: 24th February.

In 1835 A. filed a creditor's bill, against the administrator of his debtor, founded on a debt due on a promissory note, but in respect of which no payment of either principal or interest had been made since 1823. In 1832 the administrator, on the citation of a third person, signed and exhibited, in the Ecclesiastical Court, an inventory and account of the late debtor's assets and debts, in which A.'s debt was entered. Held that that entry was a sufficient acknowledgment, within Lord Tenterden's Act (9 Geo. 4, c. 14,) to take the debt out of the Statute of Limitations (21 Jas. 1, c. 16.)

THIS was a creditor's suit.

The plaintiff was the surviving executor of Phoebe Smith. He sued in respect of a debt of 2001. and interest which he alleged to be due, to her estate, on a promissory note, from [*18] the estate of James Poole, whose *administrator the defendant, Daniel Poole, was. Phoebe Smith had appointed James Poole one of her executors, but he had neither proved nor acted.

The debt had become irrecoverable by lapse of time, unless the after-mentioned inventory and account was a sufficient acknowledgment of it, within Lord Tenterden's Act (9 Geo. 4, c. 14, s. 1,) to take it out of the operation of the Statute of Limitations (21 Jas. 1, c. 16.)

The inventory and account was signed by Daniel Poole, and was exhibited by him on oath, in May, 1832, in a suit intituled "Poole v. Poole," which had been instituted against him in the Consistory Court of Lichfield. The character in which the plain. tiff in Poole v. Poole sued, did not appear; but he was, of course, interested in James Poole's personal estate, and was, probably, one of his next of kin.

Smith v. Poole.

The document exhibited consisted of two parts, the inventory and the account. The inventory purported to be a full, perfect and particular inventory of all and singular the goods, chattels, and credits of James Poole which had, at any time since his death, come to the hands, possession or knowledge of Daniel Poole, his administrator; and it set forth the particulars of which the assets consisted, and the amount or value of each of them. The second part of the document purported to be a true, full and particular account of all payments and disbursements necessarily made and paid, by Daniel Poole, on acconnt of debts due and owing from James Poole, and other expenses connected with the administration of his personal estate and effects. Its contents were partly as follows: "This exhibitant declares that he hath paid for the expenses of the letters of administration *granted, to this exhibitant, by the court of Lichfield, [*19] the sum of 1387. 10s. This exhibitant further declares that he hath paid for the expenses of the funeral of the deceased, 861. Os. 9d. This exhibitant further declares that he hath paid the following sums to the several persons undermentioned, for debts on simple contract, rent, taxes, wages, &c. This exhibit ant further declares that he hath paid the following sums, to the undermentioned persons, in discharge of the principal and interest on the several bonds and notes due to them respectively from the deceased, &c., &c. This exhibitant further declares that he hath retained, to himself, for principal due to him from the deceased on note of hand, the sum of 4957., and he further declares that he hath retained, for interest on the same, from the 16th of November 1818 to the present time, the sum of 332l. 1s. 3d. This exhibitant also declares that he hath also retained, to himself, for moneys received by the said deceased on his account, the sum of 2137. 6s. 7d.: to twelve years' interest thereon, 1267. 6s. 7d. This exhibitant further declares that there are still outstanding and owing the following sums and claims against the estate of the said deceased from the several persons undermentioned, viz. Executors of the late Mr. James Cope, on bond, 2007: three years' interest thereon, 301. Executors of the late Phoebe Smith, on note, 2007.: interest thereon from the 1st Oc