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Hills v. MacRae. — In re The South Wales Railway Company.

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Motion Costs-Serving Warrants on Plaintiff in one Suit to attend Proceedings in another Suit.

The court, on motion by consent, ordered the plaintiff in one suit to serve the plaintiff in another with warrants to attend before the master in proceedings in the first suit.

THIS was a motion, on behalf of the plaintiff in the suit of Davis v. Mac Rae, that the plaintiff in the suit of Hills v. Mac Rae might be at liberty to serve him with warrants to attend the proceedings in the master's office in the suit of Hills v. Mac Rae. The Vice-Chancellor Knight Bruce had made an order staying further proceedings in the suit of Davis v. Mac Rae, the defendant consenting that the plaintiff should be at liberty to attend the proceedings before the master in the suit of Hills v. MacRae.

Mr. Woolley, for the motion, said that the plaintiff Hills was willing to consent, but was apprehensive that his costs of serving the warrants would not be allowed, unless he served them under the order of the court.

Mr. W. Morris, for Hills, referred to the case of Smith v. Guy, 2 Coop. tem. Lord Cottenham, p. 289.

TURNER, V. C. made the order.

In re THE SOUTH WALES COMPANY.2

Aug. 4, 1851.

Lands Clauses Consolidation Act, 1845, ss. 80, 82-Public Undertak ing-Land vested in a Trustee

Costs of taking.

The South Wales Railway Company took some land, part of a copyhold estate, which was vested in a trustee, who died leaving an infant heir. The company having required a surrender of the lands to be made to them, the parties beneficially entitled to the estate presented their petition under the 11 Geo. 4, & 1 Will. 4, c. 60, and obtained an order that a party should, in the place of the infant, surrender the whole estate to a new trustee, who surrendered to the company the land taken by them for the purpose of their undertaking, Upon a petition by the Railway Company objecting to the payment of the costs of and incident to this petition :

Held, that the taxing master was wrong in allowing, as against the company, the costs of procuring a new trustee and tenant.

120 Law J. Rep. (N. s.) Chanc. 533.

220 Law J. Rep. (N. s.) Chanc. 534.

In re The South Wales Company.

THIS was the petition of the South Wales Railway Company praying that the certificate of the taxing master might be quashed, and that the items in the schedule, or such as were referred to in the petition, might be disallowed, and for a reference back to the taxing master to review his report.

The South Wales Railway Company was incorporated by the 8 & 9 Vict. c. 190 and the provisions of the Lands Clauses Consolidation Act, 8 Vict. c. 18, were incorporated with it; and by the 9 & 10 Vict. c. 239, the company was authorized to make the Margam devi⚫ation.

By an agreement, dated the 8th of June, 1849, the company agreed to pay to Eliza Jones and Evan David, the sum of 300l. for the purchase of the freehold and inheritance in fee simple of all those pieces of land containing 1 a. 21 p., situate in the parish of Coity, in the county of Glamorgan; the sum of 3007. to include all satisfaction, or compensation for permanent damage or injury, or other damage or loss or inconvenience occasioned by severance or otherwise, to the remainder of the estate.

The lands formed part of a larger estate, and were copyhold of the manor of Coity Anglia, and not freehold, and on the 24th of August, 1838, on the surrender of Richard Lewellen, John Truman had been admitted tenant to the hereditaments, to hold the same to him and his heirs, as feoffee in trust, to the use of Eliza Jones for life, with remainder to John Jones and his heirs, according to the custom of the manor. In September, 1841, John Truman died intestate as to trust estates, leaving William Bligh Truman, an infant, his customary heir.

By an order, dated the 28th of July, 1850, made upon a petition presented by Eliza Jones and John Jones, on the 3rd of July, 1850, under the 11 Geo. 4, & 1 Will. 4, c. 60, it was ordered that Samuel Cook Frankish should, in the place of William Bligh Truman, the infant, surrender all the trust estates to Henry Young and his customary heirs, as feoffee in trust, to the use of Eliza Jones, and her assigns, for life, and after her decease to the use of John Jones, his heirs and assigns, according to the custom of the manor.

The surrender was accordingly made, and Henry Young was admitted, and from him the company took a conveyance of the part they had purchased.

The petition then stated that the hereditaments formed a considerable property, and comprised several acres, while the company were purchasers only of 1 a. 21 p. thereof.

On the 4th of June, 1851, the taxing master, under an order dated the 13th of March, 1851, certified that the bill of costs relating to the purchase amounted to 1047. 13s. 2d., and that he had taxed the same at 937. 18s., and that the costs of the taxation amounted to 97. Os. 4d. The taxed bills contained the costs of Eliza Jones and John Jones, and it was insisted that the company, under the Lands Clauses Consolidation Act, 1845, was not liable to pay, and that the master ought to have disallowed the costs amounting to 55l. Os. 2d. being items relating to the petition of the 3rd of July, 1840, or consequent thereon.

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In re The South Wales Company.

It was also insisted that the company ought to receive, instead of paying, the costs of taxation.

The schedule comprised the costs of seeking information respecting Mr. Truman's customary heir, and of the petition for obtaining the appointment of a new trustee, and his admittance.

Mr. Roundell Palmer and Mr. G. L. Russell. The company is not to be called on to bear the costs of having a copyhold tenant admitted on the rolls of the manor. The costs related to a matter of title, and the petition presented related to the entire copyhold estate and not to the portion purchased by the railway company. The master had, therefore taxed the costs upon a wrong principle.

Farrar v. The Earl of Winterton, 4 You. &. C. 472. The Midland Counties Railway Company v. Westcomb, 11 Sim. 57; s. c. 9 Law J. Rep. (N. s.) Chanc. 324. The Midland Counties Railway Company v. Caldecott, 2 Rail. Ca. 394. The Eastern Counties Railway Company v. Tufnell, 3 Rail. Ca. 133.

Mr. Glasse and Mr. Freeling, in support of the master's certificate. The Lands Clauses Consolidation Act, 1845, (8 Vict. c. 18,) ss. 80, 82, provided for the costs of parties whose lands were taken by the promoters of an undertaking, and all analogous costs were allowedIn re Taylor, 1 Hall & Twells, 432; s. c. 1 Mac. & Gor. 210. If the expenses were caused by the railway company requiring their conveyance, or by requiring acts to be done which the owner of the estate could dispense with, they must pay the expenses, though an application to the court included other parts of the estate besides those taken by the company, since no extra costs could be caused by an increase of the quantity-In re Branmer's Estate, 14 Jurist, 236. No objection had been raised before the master of this increase of expense: there was no defect of title: the interference of the company who wanted a party to surrender made the application to the court necessary: the infant was a perfectly good trustee so long as no surrender was required: the legislature provided that parties should have their costs, and to deprive them of those costs was to deprive them of their estate without remuneration. The master, therefore, had taxed the costs upon the proper principle.

The MASTER OF THE ROLLS. These costs do not fall within the provision of 8 Vict. c. 18, which directs that they shall be paid by the promoters of the undertaking where they relate to the purchase and taking of the lands, or which have been incurred in consequence thereof. Neither are they costs of obtaining proper orders. Neither do they fall within the 82nd section, which directs the payment of all reasonable expenses incident to the investigation, deduction and verification of the title. These provisions do not relate to the getting proper persons to make the conveyance. If they did, it might relate to getting proper persons to pay off a mortgage. In this case there was no tenant to the copyhold estate, a portion of which was taken by the South Wales Railway Company; the lord of the manor

Bullivant v. Bellairs.

therefore, had he known of that fact, might have availed himself of it, and by proceeding as for a forfeiture he might have compelled the vendors to put a tenant upon the court rolls. A tenant had now been placed upon the rolls for the whole estate, who may now convey. But I think the master was wrong in allowing as against the company the costs of procuring the new trustee and tenant.

[See Ex parte Collins, 19 Law J. Rep. (N. s.) Chanc. 244. Ranken v. the East and West India Docks and Birmingham Junction Railway Company, 12 Beav. 298; s. c. 19 Law J. Rep. (N. s.) Chanc. 153.]

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BULLIVANT v. BELLAIRS.1

July 9, 1851.

Administration-Prospective Order.

Order made on a claim that the money to be received in respect of mortgages, forming part of the personal estate of an intestate, should be got in by the administrator, and divided from time to time by him among the parties interested.

THIS was a claim instituted for the administration of the estate of a testator. Four persons, and the representatives of another person deceased were entitled to the testator's residuary estate in fifths. All the testator's personal estate had been realized, with the exception of some mortgages.

The claim came on for further directions.

Mr. Metcalfe, for the plaintiff, said, that it was desired that, if pos sible, the testator's estate should be administered and wound up without any further application to the court, and that a prospective order should be made for distributing the produce of the mortgages.

Mr. C. M. Roupell and Mr. Batten, for the other parties.

KNIGHT BRUCE, V. C., said, that he did not see any objection to a prospective order for a division of the money to be received from the mortgages. A declaration might be made that the four survivors and the representative of the deceased person were entitled in equal shares to the testator's personal estate; and directions might be given that the balance found due from the administrator of the testator should be paid into court, and that the costs should be paid, and that the administrator should then get in the mortgages, and that the money to be so received from time to time, should be divided among the parties so declared entitled, and that the subsequent costs should be paid by the administrator out of any moneys in his hands, and there should be liberty to apply.

120 Law J. Rep. (N. s.) Chanc. 549.

Macintosh v. The Great Western Railway Company.

MACINTOSH v. THE GREAT WESTERN RAILWAY COMPANY.1

July 3, 1851.

Amendment Application to the Master-68th Order of May, 1845.

Defendant answered the original bill, and upwards of four weeks elapsed from the time such answer was put in. The plaintiff amended his bill, and the defendant put in his answer. An application by the plaintiff to the master for leave to amend, within four weeks after the answer to the amended bill had been put in ; —

Held, not to be obnoxious to the 68th order of May, 1845.

THE defendants put in their answer to the original bill, and upwards of four weeks elapsed from the time of the answer being put in.

The plaintiff amended his bill. The defendants put in their answer to the amended bill.

Within four weeks after the answer to the amended bill had been put in, the plaintiff applied to the master under the 67th order of the 8th of May 1845. Ord. Can. 308; 14 Law J. Rep. (N. s.) Chanc.

290.

The 67th order is as follows:-"A special order for leave to amend a bill is not to be granted without affidavit to the effect, first, that the draft of the proposed amendments has been settled, approved, and signed by counsel; and second, that such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff."

The 68th order is as follows:-"After the plaintiff has filed, or undertaken to file, a replication, or after the expiration of four weeks from the time, when the answer, or last answer, is deemed sufficient, a special order for leave to amend a bill is not to be granted without further affidavit, shewing that the matter of the proposed amendment is material and could not, with reasonable diligence, have been sooner introduced into such bill.

The master refused leave to amend on the ground that the application ought to have been made under the 68th order.

This was a motion that the order of the master might be reversed, and that the plaintiff might have leave to amend.

Mr. Russell and Mr. Bazalgette, for the motion, cited Arnold v. Arnold, 1 Phil. 805; s. c. 16 Law J. Rep. (N. s.) Chanc. 236.

Mr. T. Stevens, for the defendants, cited-Christ's Hospital v. Grainger, 1 Phil. 634; s. c. 15 Law J. Rep. (N. s.) Chanc. 145. Dean v. Hickinbotham, 4 Hare, 302; s. c. 14 Law J. Rep. (N. s.) Chanc. 469. Winthrop v. Murray, 7 Hare, 150; s. c. 18 Law J. Rep. (N. s.) Chanc.

484.

120 Law J. Rep. (N. s.) Chanc. 550.

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