Cross v. Brown.

plaintiff, but Mr. Tanner failed to comply with them, and another quarter's annuity became due. The defendant subsequently paid the annuity, and all arrears, but refused to pay the costs which had been

incurred in the suit.

Mr. Roundell Palmer and Mr. Frith, in support of the motion. The defendant was repeatedly requested to pay the annuity, but he took no notice of the applications until the suit was instituted, and after putting the plaintiff to considerable costs, he has satisfied the suit by paying the annuity, but he has refused to pay the costs.

Mr. Frith. The costs are still due, and the plaintiff is quite willing to proceed with the suit to recover them.

The MASTER OF THE ROLLS. I shall not allow the suit to go on merely for the costs.

Mr. Hare, for the defendant, stated that upon consenting to accept a government annuity, it was also arranged between the parties that the plaintiff should pay the difference between the expenses out of pocket and the full costs of suit.

Mr. Frith. The defendant failed to observe any arrangement.

The MASTER OF THE ROLLS. In consequence of the agreement respecting costs, I am of opinion that the defendant, W. H. Tanner, must pay the costs incurred by the plaintiff out of pocket in this suit and also upon this notice of motion.

[See Sivell v. Abraham, 8 Beav. 598.]

CROSS V. BROWN.1

July 25, 1851.

Infant- Maintenance - Decree.

The Court directed a reference to appoint a guardian to an infant, and approve of proper maintenance, to be inserted in the decree, upon the hearing of a suit, without any petition being represented.

THE testator in this cause bequeathed a fund to trustees, in trust, as to one moiety for the infant defendant Brown. At the hearing of the suit,

Mr. Simons, for the infant, asked for a reference to the master to be directed by the decree to appoint a guardian, and approve of a proper maintenance for the infant.

1 20 Law J. Rep. (N. s.) Chanc. 560.

In re Steele.

Mr. K. Parker and Mr. Wright appeared for the plaintiffs, and

Mr. Freeling and Mr. Wright, Jr. for the defendants

LORD CRANWORTH, V. C., doubted whether such a direction could be inserted in the decree, and whether it ought not to be obtained on a petition presented by the infant; but after consulting with Mr. Colville, the registrar, his Lordship directed the reference as to the guardian and maintenance to be inserted in the decree.

Costs

In re STEELE.1

Aug. 2, 6, 1851.

·Mortgagor-6 & 7 Vict. c. 73, ss. 37, 38, 43- Solicitor's Bill-Delivery-Taxation.

A solicitor, acting on behalf of mortgagees, sold the mortgaged premises, and on the 27th of June, 1850, he retained the amount of his bill of costs out of the proceeds of the sale. On the 29th of June, 1850, he sent a copy of the bill to the solicitor of the mortgagor, and on the 27th of June, 1851, the mortgagor applied for an order for taxation: — Held, that the taxation might have been had upon the common order; that the petition was presented in time; that it could scarcely be considered a payment of the bill of costs until the petitioner had the means of knowing the amount of the surplus, and that he was entitled to taxation, but that he must pay the costs beyond the costs of the common order.

THIS petition was presented by William Bennett, the son and sole personal representative of a deceased mortgagor, praying that the bill of costs of Adam Rivers Steele might be taxed, notwithstanding the trustees for sale had allowed him to retain the amount out of the purchase-money.

In 1844 the father of the petitioner executed a mortgage of certain leasehold estates, to secure a sum of 500l. to Collinson Hall. After the death of both the mortgagor and mortgagee, the mortgaged premises were put up to sale by auction, and were purchased by a son of the petitioner for 6951. This purchase had since been completed.

The petitioner had assigned his interest in any surplus, arising from the purchase-money, to the trustees of a building society, as a collateral security for advances made by the society to the petitioner's son, to enable him to complete the purchase of the premises.

On the 27th of June, 1850, after the receipt of the purchase-money, Mr. Steele, as solicitor for the mortgagees in the matter of the sale, retained the amount of his bill of costs, amounting to 777. 19s. 2d.

On the 29th of June, 1850, Mr. Steele sent to Mr. Archbutt, the solicitor of the petitioner, his bill of costs.

On the 27th of June, 1851, two days before the expiration of the year, this petition was presented. Some objection was made by the

1 20 Law J. Rep. (N. 8.) Chanc. 562.

In re Steele.

secretary at the Rolls, to grant the common order, in consequence of which the petition was presented.

The affidavit of Mr. Archbutt, the solicitor for the petitioner, stated that the bill contained many improper charges, which ought not to be borne by the petitioner; that some were unreasonable and extravagant, and in particular a charge of 51. 6s. 8d. for perusing and considering various title-deeds, afterwards abstracted in forty-eight sheets, previous to preparing, and as instructions for particulars and conditions of sale. Mr. Steele, in an affidavit, stated that the bill of costs was, on the 26th of March, 1850, made out by him to that day, being the completion of the sale; that it was afterwards, on the 27th of June, 1850, completed, by him, to that day, and that it then amounted in the whole to 79%. 19s. 2d. and was upon that day, with the consent and approbation of his clients, retained by him out of the moneys then in his hands, arising from the sale of the mortgaged property, but that his bill was not then or at any time formally or actually delivered to his clients, or either of them, but remained in his possession until the same was forwarded to Mr. Archbutt on the 29th of June, 1850.

The affidavit further stated that since the bill of costs was sent in to Mr. Archbutt, other costs had been incurred, and were then due to Mr. Steele from his clients in relation to their trust for sale of the said property, and that further costs would be incurred, in respect of such business, before the termination thereof.

Mr. Goldsmith in support of the petition. The facts warranted the court in making the order for the taxation of this bill: it was satisfactorily made out that the petition for taxation was presented within the year, a time by far too short for persons unskilled and requiring assistance to understand and digest these bills of costs. A case of pressure or undue advantage could scarce be made out, as Mr. Steele had the money in his hands; but it was impossible to read the bills without seeing that they contained both unreasonable and extravagant charges, which were the subject of taxation.

Mr. Roupell and Mr. G. L. Russell objected to any taxation: first, because the petition did not allege any specific overcharge, as a ground for making the order; and the affidavit in support stated but one item, and there the allegation of its being an overcharge was mere conjecture. Secondly, because the bill of costs had been paid by retainer, with the consent of the mortgagee, and the mortgagor, who sought to have the bill taxed, could not be in a better position unless he proved that there was either pressure or fraud; and, thirdly, because the mortgagor's interest was a mere scintilla or possibility of right, which he had assigned to other persons. In re Downes, 5 Beav. 425; s. c. 13 Law J. Rep. (N. s.) Chanc. 159. Barwell v. Brooks, 7 Beav. 345. In re Bignold, 9 Beav. 269.

Mr. Goldsmith, in reply.

The MASTER OF THE ROLLS. The petitioner cannot be treated as

Wombwell v. Hanrott.

a party who has consented to the payment of the bill; it was made out up to the 27th June, 1850, and though the amount was then retained with the consent of the mortgagees, it was without the knowledge or approbation of the mortgagor, who was alone interested in the surplus, out of which these costs were paid. The bill was not delivered to the petitioner's solicitor until two days after this payment was made, but it could be scarcely called a payment until some account was obtained from which the surplus might be ascertained, and the party might know what the payment really was. I think the petitioner is entitled to the order for taxation; but he must pay the costs of as much of the order as are beyond the costs of the commonorder.

WOMBWELL v. HANROTT.1

July 11, 1851.

Power-Appointment - Unappointed Portion- Right to Participate.

F. H. had a power to appoint a sum of 21,792l. consols, to her daughters after the decease of herself and her husband. Upon the marriage of G., one of her daughters, who was a minor, F. H. appointed a moiety of the fund to become the part of her daughter G. to be vested in her, or her husband in her right, to the end that on the decease of the tenants for life, it might be paid to her husband, his executors, administrators or assigns, to and for his and their own use and benefit. No appointment was made of the other moiety of the fund; and upon a bill filed by G. and her husband claiming a moiety of the unappointed fund:

Held, that there was a valid appointment of one moiety of the fund; that the remaining moiety was unappointed, and was divisible between G. and her sister.

JAMES M. HEYWOOD by his will, dated the 2nd of April, 1796, gave considerable property, which it was subsequently ascertained amounted to 21,7927. 8s. 9d. consols, after the death of his daughter Frances (afterwards the wife of Thomas Orby Hunter) and her husband, unto her child and children at such times and in such parts, shares and proportions and subject to such conditions as she by any writing under her hand and seal, executed in the presence of two or more credible witneses, should direct, limit or appoint; and in default thereof, to pay the same unto all and every child and children of his daughter share and share alike.

By a deed-poll, dated the 21st of June, 1824, and duly executed under the hands of Thomas Orby Hunter and Frances his wife, after reciting that a marriage was intended between George Wombwell and Georgiana Mary Orby Hunter then a minor, and in order to her preferment in marriage, and the said Frances Hunter, with the approbation of her husband, did appoint that one full moiety or half part or share of the 21,7927. 8s. 9d. consols should, after the solemnization of the marriage, be and become and be considered as the part, share

VOL. VII.

120 Law J. Rep. (N. s.) Chanc. 581; 14 Beavan, 143.
6

Wombweli v. Hanrott.

and proportion of the said G. M. O. Hunter, and should from thenceforth become, and be, and should be considered, and taken as an interest vested in her, or in the said George Wombwell in her right, to the end and intent that such moiety or half part should and might with all convenient speed after the decease of the survivor of them the said Thomas Orby Hunter and Frances his wife, be transferred, assigned and made over unto the said George Wombwell, his executors, administrators, or assigns, to and for his and their own absolute use and benefit.

Charlotte Orby Hunter and Georgiana Orby Hunter were the only two children of Thomas Orby Hunter and Frances his wife; and in 1834, Frances Hunter died, without having executed any other appointment of the 21,7921. 8s. 9d. consols, and Thomas Orby Hunter died on the 13th of December 1847, and the question now raised was, whether the moiety of the 21,792l. 8s. 9d., which remained unappointed, belonged to Charlotte, or was divisible equally between Charlotte and Georgiana as in default of appointment.

Mr. R. Palmer and Mr. Bagshawe, for the daughter Georgiana and her husband. The will of the testator contains no words to exclude the appointees of one moiety from participating in the unappointed portion. The power was to appoint the fund to the two daughters; and in default of appointment, it was given to them equally: this was in some respects a trust, but it did not contemplate an equal distribution of the fund- Butcher v. Butcher, 1 Ves. & B. 79. But the right of a party to participate in the unappointed portion of the fund could not be defeated in the absence of an express appointment. Fitch v. Weber, 6 Hare, 145; s. c. 17 Law J. Rep. (N. s.) Chanc. 361. Wilson v. Piggott, 2 Ves. jun. 251. Henderson v. Constable, 5 Beav. 297; s. c. 11 Law J. Rep. (N. s.) Chanc. 332; and it could not be asserted as in Boyle v. the Bishop of Peterborough, 1 Ves. jun. 299; s. c. 3 Bro. C. C. 243; that the power was gone because there had been a partial execution.

Mr. Walpole and Mr. Eade, for the daughter Charlotte and her husband. The deed-poll of the 21st of June, 1824, must be considered as having fully executed the power, as it directed what was to be and become and be considered the part, share, and proportion of Georgiana. She must, therefore, be considered as having received her share, and the deed must be read as depriving her of any further interest in the remaining fund; while, at the same time, it operated as an appointment, and an implied gift of the remaining fund to the remaining daughter Charlotte-Fortescue v. Gregor, 5 Ves. 552. Simpson v. Paul, 2 Eden, 34. Alloway v. Alloway, 4 D. & War. 380, 391; s. c. 2 Con. & Law. 509. The appointment also was made to the husband, his executors and administrators; it related to a reversionary interest of the wife in a chose in action, and could not have been claimed by him under his marital right; it therefore differed from Hewitt v. Lord Dacre, 2 Keen, 622; s. c. 2 Con. & Law. 509; Alexander v. Alexander, 2 Ves. sen. 640; 2 Sugden on Powers, 296, 6th edit.