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![handle is hein.slavery/ssactsengr0797 and id is 1 raw text is: PEMBERTON V. TOPHAM
The testator died in 1820, leaving two legitimate children, namely, James Hare,
then of the age of four years, and Maria Henrietta Hare.
James Hare, the son, died in 1834, in the eighteenth year of his age, and the
question was, whether he took a vested interest in the personal estate.
Mr. Pemberton and Mr. Blenman, for the Plaintiff, who was a son of Mrs. Hare
by a second marriage, [316] cited Hanson v. Graham (6 Ves. 238), Branstrom v.
Wilkinson (7 Ves. A20), Murray v. Addenbrook (4 Russ. 407), Mills v. Robarts (1 R.
& Myl. 555).
Mr. Burge and Mr. Glasse, for the administratrix of James Hare, the younger,
,deceased.
Mr. Kindersley and Mr. Wray, for Maria Henrietta Hare, the surviving child of
the testator.
Mr. Piggott, for Sir Hussey Vivian.
Mr. Girdlestone, for the second husband of Mrs. Hare.
Mr. Pemberton, in reply.
THE MASTER OF THE ROLLS [Lord Langdale] held that James Hare, the younger,
took a vested interest in the personal estate, which therefore belonged to his next
of. kin.
(316] PEMBERTON V. TOPHAM. Nov. 15, 1838.
In a creditor's suit instituted by the Plaintiff on behalf of himself and all other
creditors, the Defendant is entitled on motion, at any time before decree, to have
the bill dismissed, on payment of the demand of the Plaintiff and his costs as
between party and party; but if there be other Defendants, their costs must also
be paid.
This was a creditor's suit, instituted by Thomas Pemberton, on behalf of himself
and all the other creditors of Jonathan Stanway, who should come in and contribute
towards the expences of this suit, [317] against the trustees and executors under his
will and the parties beneficially interested in the real estate of the testator. The
object of the suit was to obtain payment of the testator's debts out of his personal
and real estate.
The testator was indebted to the Plaintiff in £30 on a promissory note. The
Defendants had appeared, but had not put in their answer.
Mr. H. W. Cole, on behalf of the executors, now moved, that on payment to the
Plaintiff of the amount due on the promissory note for principal and interest, together
with costs of suit to be ascertained by the Master, this bill might stand dismissed, or
that all future proceedings might be stayed.
Mr. Pemberton, contrh, contended, that the Plaintiff was not entitled to dismiss a
bill, filed not only for his own benefit, but for the benefit of all the other creditors of
the testator; and secondly, that if this suit were stayed, the Plaintiff ought to be
allowed his costs as between solicitor and client, which he might probably obtain if
this suit proceeded.
He contended also, that the executors ought also to pay the costs of the other
Defendants to this suit and of this motion.
THE MASTER OF THE ROLLS [Lord Langdalc] said, that the Plaintiff could only be
entitled to costs between solicitor and client where there was a deficiency of assets,
or, in other words, out of the creditor's own fund: and his Lordship held, that on
the Defendant's discharging the demands of the Plaintiff in this suit, and on payment
of the [318] costs, taxed as between party and party, of the Plaintiff and the other
Defendants, the executors were entitled, at any time before decree, to have this suit
dismissed; and that until decree the other creditors had no interest in the suit.
It was therefore ordered, that the Defendants the executors, should pay to the
Plaintiff £30, with interest to be ascertained by the Master; and it was referred to
the Master to tax the costs of the Plaintiff and of the Defendants, other than the
executors, including the Plaintiff's costs of this application; and it was ordered, that
the same should be paid by the Defendants the executors, and thereupon, and on
payment of the £30 and interest, it was ordered that the bill stand dismissed out of
Court.
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