come to that conclusion independently of the letter as to employing the defendant at a reasonable remuneration. He next came to the construction of the bond, and the defendant's contention that gas-fitting was not included in the prohibition. On the one hand it was certain that the defendant had carried on all three businesses, if three they were, and the assignees had done the same; and it was equally clear that, in the catalogue of the stock in trade, printed before the sale, the term "gas-fitting" was not used, though part of the stock belonged to that branch of the business. On the other hand the defendant said that he had always considered them as three distinct businesses, and that he had executed the bond under the impression that it did not extend to the gas-fitting business; and it also appeared that the plaintiff and the defendant's son did not at first intend to carry on the gas-fitting business. Under these circumstances it would have been very difficult to determine whether gas-fitting was or was not included in the bond; and he, therefore, thought it proper to direct an action to be brought against the defendant (the plaintiff being at liberty to use the son's name on giving a proper indemnity), and the equity would be reserved upon the usual terms. Hobhouse, Q.C., suggested that Mr. Rolt's Act (25 & 26 Vict. c. 42,) prevented the Court from adopting this course; but that it might direct an issue. 18 DEC. 1863. THE MASTER OF THE ROLLS (after some discussion as to Mr. Rolt's Act) held, that it prevented him from allowing the cause to stand over with liberty to bring an action. It was not a case for directing an issue, and he should, therefore, dismiss the bill, so far as it prayed an injunction against carrying on the gasfitting business, without costs, and without prejudice to any action on the bond. Master of the Rolls. 19 DEC. 1863. Ban Equitable Mortgage-Deposit. A gave B an unsigned writing, by which he directed C, as soon as his own lien was satisfied, to deliver to assignment of three leasehold properties, and he delivered to B the original lease to himself of two of the properties. This was a lease of a reversion to A for life, who died before it took effect in possession :— Held, that the writing and lease together constituted an equitable mortgage of the third property not comprised in the lease. This was a creditor's suit to administer the estate of James Terrell deceased. James Terrell, being indebted to the plaintiff, proposed to him to secure the sums advanced, and interest thereon, by a charge on VOL. III. some leasehold property at Alphington, which he held under two leases for lives, and accordingly he wrote and delivered to the plaintiff an unsigned memorandum as follows : "Messrs. S. & Co., will be pleased, as soon as their lien is satisfied, to deliver to Mr. Daw (the plaintiff) the assignment from K to myself of a field and garden in Alphington, and Little Crab Marsh, and Cross Park. "Bartholomew Yard, September 11, 1856." At the same time James Terrell delivered to the plaintiff a reversionary lease by which Little Crab Marsh and Cross Park were demised to him for the term of ninety-nine years, if he should so long live, the term to commence from the death of the survivor of three persons therein-named; and also a letter from the agent of the lessor notifying the execution of the lease, and a slip of paper containing a memorandum of the contents of the lands demised. The other documents the date of this transaction, in the hands of Messrs. relating to the properties agreed to be charged were, at S. & Co., the bankers of James Terrell, as a security for a debt. James Terrell died intestate in 1859, and letters of administration were granted to the defendant Mary Terrell, his widow. It was admitted that the deeds which were deposited with S. & Co. were handed by them to the intestate on their debt being paid off, and that these deeds had ever since remained in the possession of the intestate or his representative. Southgate, Q.C., and Kekewich, for the plaintiff, contended that the memorandum created a good equitable mortgage of the Alphington property, Dighton v. Withers, 31 Beav. 423; Ex parte Arkwright, 3 M. D. & D. 129; As to the form of the decree, they cited, Selwyn, Q. C., and Wickens, for the administratrix. Swanston, for the heir-at-law, said that as to the Alphington property no security or memorandum of deposit (except the unsigned one before stated) had been given the reversionary lease of Little Crab Marsh and Cross Park had been deposited with the plaintiff, but the intestate's interest in this lease had ceased with his life, and the deed then became absolutely worthless; he contended that there was no actual deposit of title-deeds such as would create an equitable mortgage, Ex parte Perry, 3 M. D. & D. 252. THE MASTER OF THE ROLLS, without calling for a reply, said that there was, in his opinion, a good agreement to give an equitable mortgage, and that, although no deeds were deposited relating to the Alphington property, the transaction was to be regarded as one entire transaction, and a good M equitable mortgage of the Alphington property was property, shares in companies, or other investments, created. Minute. Declare the plaintiff entitled to a charge in the nature of an equitable mortgage on the Alphington property, and direct such property to be sold, and pay the plaintiff his principal and interest and costs out of the proceeds, so far as they will extend, and -the mortgaged estate being admitted to be insufficient-usual administration decree; adjourn further Trustees - Investment on Real Security-Annuity-Capital― Remainderman— Residuary Legatee. A lestatrix directed the executors and trustees of her will to invest such a sum of money as, when invested, would produce the annual sum of 1501., and to pay the annuity to A for life, and after his death to stand possessed of the capital of the annuity for B absolutely; and she appointed her trustees residuary devisees and legatees. The trustees, who had large discretionary powers of investment, secured a sum of 35301. to answer the annuity, on a mortgage at 4 per cent., of freehold ground-rents, which were valued at 43001. Held, that this was a sufficient security, and that the trustees, being also residuary legatees, were not compellable to set apart a larger sum as the capital of the annuity. Caroline Vickery, by her will dated in 1856, and a codicil thereto, dated in 1858, gave her real estate and her residuary personal estate to the defendants, John Evans and William Drury, their heirs, &c., upon trust, to invest such a sum of money in the public stocks or upon the security of freehold or copyhold hereditaments in England, as when so invested would but that they should retain such hereditaments, shares, and investments unconverted as long as they in the exercise of their uncontrolled discretion should think proper, and that in the meantime the rents, dividends, and proceeds of such hereditaments, shares and investments should, with the proceeds of other parts of her trust estate, be applicable to the payment of such annuity, and she declared that her trustees should not be answerable for any depreciation in the value of such shares or investments, nor for any loss which might arise in the sale thereof by reason of their not having sold the same at any particular time, and she gave her trustees the fullest discretionary power she was able to confer upon them to sell the shares and investments or not, and to retain them as long as they might think it expedient so to do. The testatrix appointed the defendants, John Evans and William Drury, executors of her will, and her residuary devisees and legatees in equal shares as tenants in common. The executors duly proved the will, and got in the real and personal assets of the testatrix, which were amply sufficient to answer the trusts of the will, and they appropriated a sum of 35301. to meet the annuity of 150l. This sum was secured by a mortgage, dated the 22nd of October, 1862, of the ground-rents of ten freehold houses, with interest at the rate of 51. per cent. per annum, reducible, on punctual payment, to 47. 5s. per cent., with a proviso that if the mortgagor should pay the interest, and keep the covenants, &c., the mortgagees would not call in the principal sum before the 22nd of October, 1867, and that the mortgagor should not be at liberty to pay off the same before that day. The plaintiff was not consulted on the subject of the investment, and he filed the bill to obtain a declaration that it was not a proper investment; and that a sufficient sum of Consols ought to be purchased to answer the annuity. The ground-rents on which the annuity was securel amounted annually to a sum of 1767., and each of the ten houses was of the annual value of 1001. or upwards. The average of four valuations of the groundrents was 4,3691. At the time when the bill was file several of the houses were unlet.' produce the annual sum of 150%. And she authorised Selwyn, Q.C., and Druce, for the plaintiff, contende), 1st. That the trustees being also residuary legatees, could not exercise the discretion given to them at the expense of their cestuis que trustent. This discretion w not as to what was the proper amount to be invested to answer the annuity, but as to the investment of a proper amount to be previously set apart; and they contended that the amount set apart by the trustees was not sufficient. 2nd. The average of four valuations of the property taken as security was 43697.; the property, therefore, was clearly insufficient to secure 35301, within the Stickney v. Sewell, 1 Myl. & Cr. 8; 3rd. The security could not be realised for five years, and the remainder-man would therefore be kept out of his legacy for that time, if the tenant for life should die in the interval. Southgate, Q. C., and Whitehorne, for the defendants, said that this was a question of the bona fides of the trustees the rule laid down in Stickney v. Sewell (loc. cit) was only a general one, and when trustees had not followed the rule, but had acted honestly, the Court had protected them, Jones v. Lewis, 3 De. G. & S. 471; and they referred to his Honour's judgment in Aspland v. Watte, 25 L. J. Ch. 53. But the security here was most ample, for the lessee would never allow his houses to be forfeited for nonpayment of the ground rents. As to the question between the trustees as residuary legatees and the plaintiff as owner of the reversion of the annuity, the words of the will were express, that the trustees were to invest "such a sum of money as would produce the annual sum of 1507." Selwyn, Q. C., in reply, THE MASTER OF THE ROLLS was of opinion that the freehold ground-rents were a sufficient security; the value of the houses was really included in it, as the landlord might enter if the ground-rent were not pail. On the second point his Honour said that he felt some hesitation, and he had no authority on the subject to guide him. The words in the will were clear, and the Court would not allow the investment to be fraudulently or collusively arranged so as to diminish the capital of the remainderman on the death of the tenant for life, but on the other hand it was not competent for the remainderman to require that the investment should be made at the lowest rate of interest in order to increase his apital. There was no rule which would interfere with the large discretion given to the trustees; if they frand a person who would give 411. per cent. interest, and the security was ample, and there was no fraud or improper conduct, they were entitled to the benefit of what the testatrix had given to them as residuary legatees. On the third point, if the annuitant died before the money was payable under the mortgage, the remainder-man would have a right to have the security sold, and any deficiency made good by the trustees. His Honour thought that it would not be proper to dismiss the bill, and made an order declaring the investment sufficient, and staying the proceedings with liberty to apply. No order as to costs. Note.-Jones v. Lewis (loc. cit.) was reversed on appeal. See Lewin on Trusts, 4th edition, p. 242, note (e). Practice-Mortgage pendente lite—15 & 16 Vict. c. 86, s. 52. Persons who have, pendente lite, taken mortgages on the shares of purties to a suit may be brought before the Court by a supplemental order under 15 & 16 Vict. c. 86, s. 52. This was a suit for administering the real and personal estate of Samuel Brandon. A decretal order, dated the 4th of June, 1825, and several orders of revivor and supplement, and other orders, had been made in this suit; and the Court had appointed a receiver to receive the rents of the estate. Subsequently to these orders various parties to the suit had mortgaged their shares. The plaintiff Parker had applied to have the mortgagees of these shares made defendants by a supplemental order under 15 & 16 Vict. c. 86, s. 52. The mortgagors and the mortgagees were acting by the same solicitor, and they all concurred in the application. The Registrar, however, objected, on the ground that it would be sufficient if, without making the mortgagees parties, the receiver were ordered to pay the rents, which might be attributable to any mortgaged share, in discharge of the interest due upon it. He requested that the matter should be mentioned to the Court. Hardy, in support of the application, submitted that as, under the old practice, these mortgagees might have been brought before the Court by a supplemental bill, the Court ought, in like circumstances, to the same effect. under the new practice, to make a supplemental order No expense would be entailed on other parties by these mortgagees being made parties, and their presence would be very convenient for the purpose of taking the accounts. Similar orders had already been made in the present suit. KINDERSLEY, V.-C., said that he felt some hesitation on the ground of expense. The mortgagees, if now made parties, would have to be served on all future occasions. As, however, such orders had already been made under similar circumstances, he would, subject to what the Registrar might say, make the order. The order was subsequently made.* Note.*-See Freeman v. Pennington, 3 De G. F. & J. 295. incumbrances were, by arrangement between the two tenants for life, paid off by them out of their private moneys in certain proportions, and part of one of such estates was taken by a railway company for the purposes of their Act, and the purchase-money paid into Court: Held, upon petition by the tenant for life of the land taken by the company, for payment to him out of the fund in Court of the amount of the incumbrance paid off by him, and for the investment of the residue of the fund, that the company was liable for the costs of the appearance of the persons interested in remainder expectant on the life estate of such tenant for life. Under the will of John Romney, deceased, certain lands in the county of Lancaster were settled upon the petitioner, George Romney, for life, with remainder to his first son in fee, with remainder, if he should have no son, to the respondent, John Romney, for life, with remainder to his first son in fee; and by the same will certain other lands in the same county were settled upon John Romney for life, with remainder to his first son in fee, with remainders over in case he should have no son. The entirety of the estates so settled were liable to charges amounting to nearly 40007. By an agreement in writing entered into by George Romney and the respondent John Romney it was agreed that the lands settled upon George should be considered liable for one-fourth of such charges, and that the lands settled upon John should be considered liable for threefourths of such charges, the lands settled upon John being three times as valuable as those settled upon George; and thereupon the charges were paid off in such proportions by George and John out of their private moneys, the proportion so paid off by George amounting to 9197. 16s. 9d.; and George and John at the same time executed a memorandum, declaring that they did not intend that such charges should merge in the inheritance for the benefit of those entitled in remainder, but that they intended the same to be kept alive for their own private benefit. Subsequently to the date of such agreement, portions of the lands settled upon George were taken by the Furness Railway Company for the purposes of their undertaking, and the purchase-money amounting to 1,4307. was paid into Court. The petition prayed that out of the fund in Court the sum of 91917. 16s. 9d. should be paid to George Romney in discharge of the encumbrance paid off by him, and that the residue of the fund should be invested in consols, and the dividends thereof paid to him during his life. George Romney was unmarried, and the petition. was served upon John Romney and his first son an infant. Shebbeare appeared for the petitioner. Held, that his right was paramount to that of the creditors of the client (who was dead), under a decree for sale made in a suit to administer his real and personal estate. Such charging order must, however, be strictly confined to the costs incurred in the suit in which it was obtained. This was a petition by the solicitor for the plaintiffs in the suit of Wilson v. Round to obtain an order charging his costs upon certain real property, the following circumstances :— under The original plaintiff in this suit, John Wilson, was the mortgagee of the property in question, and the petitioner had been employed by him in certain actions which had been prosecuted by the plaintiff for the purpose of enforcing his security, as well as in this suit, which was one for foreclosure, and in which a decree of foreclosure had been made, which had become absolute. John Wilson had afterwards died, and the present plaintiffs were his personal representatives. A creditors' suit had been instituted for the purpose of administering his real and personal estate, in which a decree ordering the sale of his real estate had been made. Eddis, for the petitioner, asked that the costs, charges, and expenses incurred in the actions, and the present suit, might, under section 28 of the Attorneys' and Solicitors' Act, 1860 (23 & 24 Vict. c. 127), be declared to be a charge upon the property, and that an order might be made for raising and paying the amount. De Gex, for the plaintiffs and the other persons entitled to John Wilson's estate, objected, on the grounds that a decree having been made in the administration suit, an order could not now be made interfering with the order for sale of the property made therein for the Bush, for John Romney and his son, asked for their benefit of the creditors, but that the petitioner ought costs as against the company. to take the benefit of that suit alone. He also con tended that the petitioner had no claim at all to ask been informed that a petition was presented, and they in this suit for the costs incurred in the actions. STUART, V.-C., thought that the petitioner's rights, under the section in question, were paramount to those of the creditors under their suit, but that the costs which could be made a charge upon the estate were only those incurred in the present suit. The order must be, that the costs, charges, and expenses of the petitioner, of or in reference to the suit, should be taxed, and in default of the plaintiff's paying the amount which should be certified to be due, should be raised by sale or mortgage of the property the subject of the suit, with liberty for the plaintiffs to make proposals in Chambers in reference to the sale. Practice-Motion to Dismiss. Notice of motion to dismiss for want of prosecution was given in June, 1863: replication was filed before the motion could be heard. No evidence was subsequently put in, nor any further step taken. On a second motion to dismiss being made, the Court ordered the plaintiff to set down the cause for hearing within a week, otherwise the bill to be dismissed with costs. Notice of motion to dismiss the bill in the suit, for want of prosecution, was given by the defendant in June, 1863; but before the motion could be heard, replication was filed. Since the filing of the replication no step had been taken in the suit, nor any evidence filed by the plaintiff. J. Pearson now moved to dismiss the bill. Gill, for the defendant, agreed to pay the costs of the motion, undertaking to proceed to a hearing forthwith. persisted in presenting another for the same object, the costs of the preparation and presentation of the second petition were disallowed. The petitions in this matter, reported on the merits ante, p. 192, now came on to be heard on the question of costs. It appeared that a petition had been prepared on behalf of the legatees under the will of the testator R. Chaplin, other than Mary East, but had not been presented when a petition was presented by the next of kin of the testator raising the same question. The solicitor of the legatees had, previously to the presentation of the latter petition, been applied to on behalf of the next of kin, and asked what he meant to do; but he declined to give any explanation. The solicitor for the next of kin immediately after their petition was answered, called on the town agent for the solicitor to the legatees, and asked him to accept service for them, which he refused to do: the former then went down to the country and served the country solicitor the same evening. The petition of the legatees was presented a few hours before such service was effected on their country solicitor: and it was subsequently served on the next of kin and other parties interested. Kenyon, Q.C., and Woodrofe, for the legatees, now contended that the costs of preparing the petition should be allowed to them out of the fund in Court. Daniel, Q.C., and A. G. Marten, for the next of kin, urged that the presentation of the second petition was altogether unnecessary, and that the legatees ought to be made to pay all the costs occa sioned thereby. C. Hall, Eddis, and E. R. Turner, for various respondents to both petitions, asked that their costs might be provided for. WOOD, V.-C., said that it might well happen that, Pearson insisted that the bill ought now to be dis- where a fund was paid into Court under the Trustee Relief Acts, two petitions might be bona fide prepared having the same object, and raising the same issues. Where this happened, it was usual to allow the costs of preparing the second petition. But it was of importance not to permit a fund to be squandered away in payment of costs. Here the persons who presented the second petition had been communicated with, and asked what they intended to do; but they refused to give any explanation. The petition of the next of kin was then presented, and the solicitor for the legatees had been asked to accept service, which they, perhaps, properly, had declined to do. But, knowing, as they must have known, that this petition would raise the same question as that which they had prepared on behalf of the legatees, they ought then to have stayed their hands. Under these circumstances, he should not allow the legatees any costs connected with the |