Pemberton v Topham
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 1838 |
| Date | 15 November 1838 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 962
ROLLS COURT
[316] pemberton v. topham. New. 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, contrb, 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...
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Colburn v Simms
...which orders have been made for dismissal of the bill on motion of the Defendant submitting to the Plaintiffs demand. Pemberton v. Topham, 1 Beav. 316; Holden v. Kynaston, 2 Beav. 205. 2HAEE.S64. , COLBUBN V. SIMMS 233 statutes referred to, which clauses (as I understand them) suppose the u......
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Sivell v Abraham
...232 ; Stagg v. Knawles, 3 Hare, 241 ; Robinson v. Kosher, Y. & C. (C. C.) 7 ; Field v. Robinson, 7 Beavan, 66. (1) Pemberton v. Topham, 1 Beav. 316; Hailden v. Kynaston, 2 Beav. 204; Field v. Robinson, 7 Beav. 66, Darner v. Lord Portarlington, C. P. Cooper (t. Cot.), 229, and 2 Phillips, 30......
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...and the Defendant might also have paid the debt and costs, and procured the bill to be dismissed before the hearing. Pemberton v. Topham (1 Beav. 316); Holden v. Kynastm (2 Beav. 204). the vice-chancellor [Sir James Wigram]. The suit is instituted by a simple contract creditor on behalf oi ......
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...Mr. Turner moved to stay all proceedings in the cause, on payment of the legacy claimed and the costs of suit. Pemberton v. Topham (1 Beav. 316). [67] Mr. Kindersley, for the Plaintiff, opposed the application, unless the Defendant also paid the costs of a distringas, which the Plaintiff, f......