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be necessary to pay the purchase-money into Court under the 44th section, "it shall be lawful for the Court to order the expenses of all purchases from time to time to be made in pursuance of the Act, or so much of the expenses as the Court shall deem reasonable, to be paid by the Commissioners, who shall from time to time pay such sum or sums of money out of the moneys applicable to the purposes of the Act as the Court shall direct."

Among the hereditaments comprised in the Act of 1859, there was some property held on trust for the minister and churchwardens of St. Sepulchre's. The trustees agreed to sell the same for 3,300l., and this sum was paid into Court by the Commissioners.

A petition presented under the 44th section of the Chelsea Bridge Act, was heard by his Honour ViceChancellor Kindersley, who made an order thereupon, by which it was directed that pursuant to the Westminster Bridge Act, 1859, the Commissioners should out of such moneys as Parliament should provide and place at their disposal for that purpose, pay to the petitioners their costs and expenses of the purchase or taking of the lands in the petition mentioned by the Commissioners, and of the conveyance thereof to the Commissioners.

The Commissioners appealed against so much of the order of the Vice-Chancellor as directed them to pay the costs of the sale and conveyance to them.

The Attorney-General (Sir Roundell Palmer) and A. Hanson, for the Commissioners.

1st. The words "purchases from time to time to be made in pursuance of this Act" apply only to purchases made after the money has been paid into Court, and not to the antecedent purchase by the Commissioners,

Re Strachan's Estate, 9 Hare, 185.

choose between two conflicting decisions; one of Lord Justice Turner, when Vice-Chancellor, the other the decision of Vice-Chancellor Kindersley now under consideration.

The question was, whether the Commissioners were liable to pay the costs incurred in relation to the sale to them of certain land, which Parliament had empowered them to take. The Westminster Bridge Act, 1859, was the statute which conferred the authority, but in accordance with a mischievous practice, it did not in itself contain any complete rule, but borrowed many of its provisions from the Westminster Bridge Act of 1853, and amongst them those relating to costs of this nature. On reaching the Act of 1853, there was however still another stage to traverse, for that Act did no more than refer to the Chelsea Bridge Act. The precise effect of these references might perhaps be a question, but in the present case both sides were willing to take the rule as it was given by the latter Act. The material sections of this Act were the 44th and 49th. The 44th section was only so far material, that it showed, that trustees and others dealing with the lands of persons under disability, were not allowed the ordinary power of trustees to deduct their reasonable expenses out of the capital of the trust fund. The 49th section in effect provided, that wherever money was paid into Court under the 44th section, it should be lawful for the Court to order the expenses of all purchases from time to time to be made in pursuance of the Act, or so much of them as the Court should deem reasonable, to be paid by the Commissioners.

The Vice-Chancellor had taken the words "from

time to time" apart from the context, and giving them their natural interpretation, had extended the language of the section to all purchases made in purmissioners in the first instance, or those subsequently suance of the Act, whether those made by the Com

2nd. The 82nd section of "The Lands Clauses Consolidation Act, 1845," would, it is true, if ap-made by other persons, out of the moneys arising from plicable, support the order, but the Chelsea Bridge Act contains provisions of its own respecting the purchase of land, and therefore the Lands Clauses Consolidation Act is impliedly excluded,

Re Cherry's Estate, 10 W. R. 305. Pontifex for the petitioners.

sales. His Honour considered that abstract justice required this interpretation. But his Lordship was unable to agree with the opinion of the Vice-Chancellor. It was impossible thus to isolate words from the context in which they were found, or to admit, that in a case governed by positive law, abstract

1st. The Vice-Chancellor's construction of the lan- justice demanded any departure from established rules. guage of the 49th section is right.

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A secondary meaning was indeed admissible, wherever the primary meaning would lead to an absurdity or an impossibility; but to depart from the obvious construction on mere grounds of abstract justice, was to legislate and not to interpret.

The Vice-Chancellor's attention did not seem to have been called to the case of Ex parte Strachan (loc. cit.). There the application was similar to the present, and the words of the Act, on which the decision turned, were almost exactly the same. In that case the ViceChancellor held, that those words did not enable him to give the costs which the present petitioners desired. The case was decided in the year 1851, and had, no

doubt, since then been frequently referred to and followed, and ought, in his Lordship's opinion, to govern the present application.

But the Court was still able to pronounce the order right, although dissenting from the reasons which the Vice-Chancellor had given. It was, as every one would feel, important that means should exist for reimbursing trustees and others acting for persons under some incapacity the costs properly incurred in these transactions. And the reason was, that if they were not allowed to incur such expenses as a prudent management would entail, they would be compelled to hand over the property to the Commissioners without taking any measures to deduce a satisfactory title or to obviate objections-a course extremely prejudicial to the parties for whom they acted. Considerations of this nature had induced the Legislature to lay down those general rules which were contained in the Lands Clauses Consolidation Act. It had been rightly argued, that the rule given by that Act as to costs must be considered as incorporated in the Chelsea Bridge Act. The general provisions contained in the Lands Clauses Consolidation Act were, by the 1st section of that Act, to be treated as part of every subsequent Act of the like nature, unless expressly varied or excepted.

The general provisions as to costs, were therefore to be taken as part of the Chelsea Bridge Act, unless expressly varied or excepted. If the special Act itself furnished a complete rule, that was necessarily an exception of the general Act. But suppose the rule given by the special Act applied only to costs of one kind, did that infer an exclusion of the general Act

as to costs of another kind?

Now the costs in question might be divided into two classes: first, the costs incurred by the persons whose lands were taken before the money was brought into Court; second, the costs arising subsequent to that event. The Lands Clauses Consolidation Act provided for both. The 82nd section gave the rule as to costs of the former class. And since the 49th section of the Chelsea Bridge Act applied, as the Court had determined, only to costs of the latter class, the costs of the former class were left untouched, and the 82nd section of the Lands Clauses Consolidation Act was thus let in.

In opposition to this view, the case of Re Cherry's Estate (loc. cit.) was urged. But that case really contained nothing inconsistent with it. There the Act directing the land to be taken, (9 & 10 Vict. c. 34, authorising the construction of a new street) referred to the 3 & 4 Vict. c. 87, which was prior to the Lands Clauses Consolidation Act, and thus passing over this last-named Act took the rule from an antecedent Act. And not only so, but the Act in question contained these remarkable words:"All and singular the enactments, exemptions from stamp duties and provisions in the said last-mentioned Act, (that is, the 3 & 4 Vict. c. 87,) contained, shall extend and be con

strued in all respects as if the said last-mentioned Act had been passed for the purpose of authorising the laying down and construction of the new street by this Act authorised to be laid down and constructed; and for the purchase and taking of hereditaments, and for the leasing, selling, managing, and disposing of the hereditaments to be taken, and the buildings to be erected thereon, and as if the hereditaments comprised in the schedule to this Act had been comprised in the schedule to the said last-mentioned Act; and as if the moneys authorised to be raised by this Act had been authorised to be raised by the said last-mentioned Act, and as if the said street, hereby authorised to be made, had been by the said Act authorised to be made, except that, &c."—the exception being for the present purpose immaterial.

The complete relation, which these words required, was inconsistent with the admission of a rule taken from a subsequent Act. But the very principle, which in that case compelled the exclusion of the Lands Clauses Consolidation Act, in this demanded its application. The Court was carried back no further than the 9 & 10 Vict. c. xxxix. (the Chelsea Bridge Act, and there it took up the Lands Clauses Consolidation Act, save in so far as it was expressly varied or excepted.

For these reasons his Lordship was of opinion, that the judgment referred to of Vice-Chancellor Turner was right, but finding these costs expressly given by a clause of the Lands Clauses Consolidation Act, which, in consequence of there being nothing to exclude it, formed part of the Act now under consideration, he came to the conclusion that the costs ought to be paid as the Court below had directed The order, however, was drawn in an inconvenient form, inasmuch as it directed the costs to be paid according to the Act, that was, in fact, according to a labyrinth of words. It would be better to order, that the Commissioners should pay these costs, so far as the same were payable under the 82nd section of the Lands Clauses Consolidation Act. Subject to that alteration, the order of the Vice-Chancellor would be confirmed, and the Commissioners would pay costs of the rehearing.

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THE NEW REPORTS.

Master of the Rolls in Chambers in an administra- in the will "due and received" must be read as
tion suit.
and receivable."

Alfred Brettle, the testator, by his will dated 1852, bequeathed to trustees his residuary personal estate upon trust, during the life of Sophia Cunningham, a married woman, to pay the income thereof from time to time, and as "the same shall be due and received, but not in the way of anticipation, into the proper hands of her the said Sophia Cunningham for her sole and separate use and benefit, exclusively and independent of her said present, or any future husband, and so as not to be subject or liable to or for his or their respective debts, control, interference or engagements," and declared, "that the receipts in writing of the said Sophia Cunningham shall alone, notwithstanding her coverture from time to time as the same income shall become due, be effectual discharges for the same.”

The testator died on the 31st October, 1856. At the date of his death, the testator was a member of a partnership, the articles of which provided, that on the death of any member his share of the partnership capital should be secured by the bond of the surviving partners, and be paid, together with interest, to the executors of such deceased partner, in fifteen annual instalments.

The share of the testator in the partnership was found to be 57,4077. 14s. ; and, in accordance with the provisions above-mentioned, the surviving partners secured, by their bond, to the executors of the deceased testator, the payment of that sum by fifteen annual instalments, on the 31st of October in each year, together with the interest thereon.

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Osborne, Q.C., in limine, objected to the present appeal, as being from an order made in Chambers, McVeagh v. Croall, 1 N. R. 408, 531.

appellant, distinguished Me Veagh v. Croall from the Selwyn, Q.C., and Beales, for Mrs. Cunningham, the present case. Here counsel had been heard before the

Judge in Chambers.

As to the main point, the point in dispute really and received" in the will, which, not to force a harsh turned upon the effect to be given to the words "due construction, might be read as "due and receivable." Cunningham from anticipating her income. She is The object of the testator had been to prevent Mrs. not permitted to assign it until it has become "due and receivable" by her trustees. Now,

before their Lordships, showed that a debt would not Hemsworth v. Campbell, 1 N. R. 503, be considered as "due and receivable " until the debt could be enforced. By the terms of the articles of partnership and the bond, the payment of the instal ment of principal and interest due to the executors for the year 1860 could not be enforced until the 31st of and receivable." Still less could the income be conOctober of that year. They were not therefore "due sidered, in the words of the deed, as "then accrued and become payable.'

"

Osborne, Q. C., and G. M. Colt, for Robert Cruttwell, the respondent.

The income consists of interest on a bond debt accru

Re Roger's Trusts, 1 Drew. & Sm. 338;

and, therefore, the income from October to May was in truth "due and receivable," although the day of actual payment was postponed.

Beales in reply.

Mrs. Cunningham, having some difficulty in obtaining de die in diem, ing payment of her income, owing to the proceedings in the suit, Robert Cruttwell, one of the executors, on several occasions paid various sums of money to her for her maintenance, receiving from her assignments of the arrears of her income. The last of such assignments was by a deed dated the 23rd of May, 1860, whereby Mrs. Cunningham assigned unto Cruttwell, his executors, administrators, and assigns, all the interest and annual produce, and the moneys which had "then accrued and become payable of the residuary, real, and personal estate of the respect testator, by way of further charge, for securing to Cruttwell, &c., the several sums of principal and

interest due to him.

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to her in

The question was, whether this was a valid charge in regard to the income accruing between the 31st of October, 1859, and the 23rd of May, 1860, the date of the deed.

The Master of the Rolls had had the point argued before him in Chambers by counsel, and made an order, the effect of which was to treat the charge as valid in regard to the income accruing between the 31st of October, 1859, and the 23rd of May, 1860.

KNIGHT BRUCE, L.J., said, that the present question concerned interest due on a debt governed by special circumstances, since the interest could only be demanded once in each year, or, in ordinary language, then alone became due. By the will of the testator Mrs. Cunningham was restrained from anticipating her income "not due, or received," but the word

"received" could not be construed otherwise than "receivable." It was on the meaning of those words that the present contention arose. His Lordship's opinion was in favour of Mrs. Cunningham's contention. He considered the instrument inoperative as a charge on the income accruing from the 30th of December, 1860, to May, 1861.

"received" must be read as "receivable," and that the TURNER, L.J., said, he concurred that the word income must be considered as "due and receivable," according to the terms of the instrument by which the

During argument the Court decided that the words income was "due and receivable." He could not hold,

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Lands Clauses Consolidation Act, 1845-Costs

of re-investment-Apportionment.

Upon a single re-investment in land of moneys paid into Court by more than one railway company, a small proportion of the purchase-money was taken from the residue of a fund paid in by the L company, part of which had been previously re-invested in land, and a further part of which was left for future re-invest

ment :

Held (dubitante, KNIGHT BRUCE, L.J.), that the L company must bear equally with the other companies the costs of the re-investment.

This was an appeal, by the London, Chatham, and Dover Railway Company, from an order of the Master of the Rolls, made upon the petition of the Warden and Scholars of Merton College, Oxford, for the sale and re-investment in the purchase of an estate of the following sums of Consols, standing to the credit of the College, viz., 5017. 10s. 1d. paid in by the Midland Railway Company, 2601. 3s. 3d. paid in by the Wycombe Railway Company, and 5571. 6s. 2d. paid in by the Bedford and Cambridge Railway Company, and so much of the sum of 2061. 78. paid in by the appellants, as should be required to make up the purchase-money (13507.), and for the payment of the costs of the reinvestment (except the ad valorem duty) by the four companies equally.

The 2061. 7s. was what remained, after a previous investment in land, of a sum of 6637. 9s. originally paid in by the appellants; and they now contended that, as they had already paid the costs of one previous investment, and, through the arbitrary selection made by the College, they would have to pay the costs of at least one future investment, while the other companies would only pay a portion of the costs of a single investment, they ought to be relieved altogether from the costs of the present investment, or at least to contribute to such costs only in proportion to their contribution to the purchase-money.

Hobhouse, Q.C., and Kekewich, for the appellants, contended that the Court had not laid down any gene

Ex parte Christ Church, 9 W. R. 474;
Ex parte The Governors of St. Thomas' Hospital,
7 W. R. 425.

G. S. Law, for the College, and Sergeant, Streetan, and Speed, for the other companies, in support of the order, cited,

Re Byron's Estate, 2 N. R. 294; 32 L. J. Ch (N. S.) 584;

Re The Maryport and Carlisle Railway Company, 1 N. R. 506.

Hobhouse, Q. C., in reply.

TURNER, L.J., said, that though it was impossible to lay down a general rule, which might not inflict hardship in particular instances, it was important, in the interest of railway companies themselves, that there should be some general rule in these cases. Such a rule had been laid down in the case of Ex parte The Bishop of London, subject to exception in cases of extreme hardship. He could see nothing in the present case to distinguish it from that of Re Byron's Estate; and, having regard to the provisions of the Lands Clauses Consolidation Act, 1845, he did not think that any sufficient reason had been shown for departing from the general rule.

KNIGHT BRUCE, L.J., was not quite satisfied as 0 the proper order to be made in this particular case. He thought that there ought to be no costs of the appeal.

Minute.-Appeal dismissed without costs.

Master of the Rolls.
18 FEB. 1864.

Re YETTS.

} Taxation-Order of Course-Special Application.

A solicitor delivered a bill of costs with a cash xcount at the foot, which shewed a balance due to ki larger than the amount of the bill, and then brought an action for the whole amount :

Held, that, under the circumstances, the commN PA order to tax was improper, and that a special applica tion must be made.

Joseph Yetts had been employed as solicitor and agent in a suit, by William Woodgate, and had delivered to him at different times four separate bills of costs. Owing to the lapse of time, only the fourth of these bills could now be taxed. This fourth bill con tained at the foot a cash account, which debited Woodgate with the unpaid balance of the previous bills, together with 3041. 68. 3d., the amount of the present

ral rule in Ex parte The Bishop of London, 2 De G. F. & J. bill, and (after crediting him with a cash payment)

14;

at all events, the rule could not apply to a case like the present, where its application would work a manifest injustice. They cited,

shewed a balance of 6231. 12s. in favour of Yetts Yetts commenced an action for this sum of 6234 12h, and thereupon Woodgate obtained an order, as ef course, to tax the (fourth) bill of costs. This order,

which was in the common form of an order to tax after action commenced, contained the following clause :

the Consols to the plaintiff, to secure 4007. and interest, and such further advances as might be made either to her or her husband. A further advance of 1307. was made by the plaintiff in September, 1860, to Robert Ellis, the husband of Hannah Ellis, on his sole receipt and a promissory note for that amount. Notice Selwyn, Q.C., and Batten, now moved to discharge but they refused to pay the income as it accrued to of both advances was given to the trustees of the fund,

"And it is ordered that all further proceedings at law against the petitioner in respect of the said bill be stayed pending such reference."

this order.

Wickens, contrá, contended that the order was proper; for if a defendant to an action at law had a good equitable defence to a part of such action, he was entitled in equity to an injunction to stay further proceedings in respect of that part.

THE MASTER OF THE ROLLS said, that to stay further proceedings at law in respect of this bill of costs was to stay part of an action, which could not be done without staying the whole action, and to this Woodgate was not entitled. A special application was necessary in such a case as the present, unless the consent of the solicitor to a common order to tax could be

obtained. The present order must therefore be discharged with costs. But if counsel could agree on an order to tax the costs which would meet the circumstances, it might, to save the expense of a special application, be inserted in the present order.

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the plaintiff, who therefore instituted this suit.

Kenyon, Q.C., and North, for the plaintiff, contended that the two sums of 4007. and 1307. were valid charges on the separate estate of Hannah Ellis, and that she was not restrained from anticipation by the terms of the will,

Acton v. White, 1 Sim. & S. 429.

Selwyn, Q.C., and Hetherington, for Robert and Hannah Ellis, cited, contrà,

Field v. Evans, 15 Sim. 375;

Baker v. Bradley, 7 De G. M. & G. 597. [THE MASTER OF THE ROLLS said, that as they had raised no objection by their answer on the ground of Mrs. Ellis's power of anticipation being restrained, they could only do so now at the risk of losing their costs, to which, as the matter then stood, he thought they were entitled.]

Baggallay, Q.C., and Rowcliffe, for the trustees, were only heard on the question of costs.

THE MASTER OF THE ROLLS said, that the mort

Married Woman-Mortgage of separate Estate-gage for 4007. created a good charge on Mrs. Ellis's

Further advances.

A married woman mortgaged her separate estate to secure 4001. and further advances, to be made to her or to her husband. A further advance was made to the

husband alone:

Held, that the further advance was not a charge on the estate so mortgaged.

interest in the sum of Consols; but it could not be extended to cover the further advance of 1307. It was true that the mortgage was given by the wife to secure moneys to be advanced at a future time to her or her husband, as well as moneys which were actually advanced at the date of the mortgage; but he thought that some further act or signature of the woman herself, at the time of the further advance, was required to make such further advance a good charge on her

do away entirely with the protection of the separate

use.

Master of the Rolls.
19 FEB. 1864.

}

LYSAGHT v. WEST-
MACOTT.

The defendant, Hannah Ellis, under the will of her separate property. To hold otherwise, would be to father, was entitled for her life to the dividends on a sum of Consols which was vested in the defendants Shorrock and Forrest, upon trust from time to time to pay the dividends as they should accrue, and be received into the proper hands of Hannah Ellis, or to such person as she in writing, signed by her hand, should, notwithstanding coverture, appoint, for her sole and separate use; and it was declared that the receipt of Hannah Ellis, or of the person or persons to whom she should so direct or appoint the same to be paid as aforesaid, signed with her or their hand or hands, should from time to time be a good discharge for so much of the dividends as should be therein expressed to be received.

Hannah Ellis, by deed dated the 11th of June, 1860, to which her husband was also a party, in consideration of 4007. advanced by the plaintiff to her and her husband on their joint receipt, mortgaged her interest in

Practice-Sub-mortgage-Redemption-
Form of Decree.

In a suit for redemption against the executors of the original mortgagee and sub-mortgagee, a reconveyance was ordered to be made by all the defendants, on the plaintiff paying into Court what was due from him to the original mortgagee.

This was a suit for the purpose of having certain annuities granted by the plaintiff to Henry Westmacott declared void, except so far as they were securities for money actually advanced to the plaintiff.

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