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WATERS

v.

TAYLOR.

reciting that Waters had, by his bond, bearing even date with the present deed, become bound to Mills in the penal sum of 59581., for securing the sum of 29791. 1s., being the total amount of principal and interest then due to him individually, with interest at 5 per cent., payable in manner therein mentioned; and reciting a similar bond from Waters to Mills, Robinson, and Young, in the penal sum of 10,1747., for securing the sum of 50877. 6s. 1d., being the total amount of principal and interest then due to them in respect of their late partnership, with interest at 5 per cent., payable in manner therein mentioned: it was witnessed, that Mills assigned, and Robinson and Young released, to Waters, the several sums of 73941. 5s. 5d. and 3852l. 14s. allowed by the Master; and it was also witnessed, that Waters (with the approbation of Robinson and Young) assigned, and Birch, Chambers, and Mayhew released, to Mills, all the annuities and other sums of money, debentures, mortgages, and other incumbrances charged upon or affecting the Opera House, and to which Waters, and Birch, Chambers, and Mayhew, or any of them, as his mortgagees, was or were in any manner entitled, as in the several beforerecited deeds mentioned, and all sums of money, stocks, funds, and other securities whatsoever, which, by virtue of any decree or order of the Court of Chancery, in the before-mentioned suits touching the Opera House, might become payable to Waters, out of the sums standing to the credit of the causes of Waters v. Taylor and Taylor v. Waters, as a proprietor or creditor of the Opera House; and the monies (if any) due and to become due since the 24th of August 1814 and the 29th of September 1814, in respect of the interest of so much of the several sums of 7394l. 5s. 5d. and 3852l. 14s. as consisted of principal money, and the payments due and to become due since the 24th of August 1814, in respect of the annuity of 250l., and the eventual sum of 5000l. payable for the

repurchase

repurchase of the annuity of 250l., if any persons for the time being entitled to the Opera House should be desirous to redeem that annuity, together with all securities for the interest, payments, and eventual sum respectively; to hold to Mills, discharged from the claims of Birch, Chambers, and Mayhew (but only for the purpose of giving priority to the then securities in that respect), upon trust, in case Waters should, on the 4th of February then next, pay to Mills the sum of 29791. 1s., and to Mills, Robinson, and Young the sum of 50871. 6s. 1d., with interest at 5 per cent., in manner therein mentioned, to forbear making any disposition of the several premises thereby assigned; and, in case of payment of the several before-mentioned principal sums and interest, to reassign the same premises to Waters, or as he should direct, subject to the charges of Birch, Chambers, and Mayhew; but, in case default should be made in payment thereof, then in trust that Mills should, at his discretion, and without the privity of Waters, enforce payment of and receive the interest, payments, eventual sums, and other premises thereby assigned, and out of the produce pay himself the expenses of the execution of the trust, and retain the sum of 29791. 1s., and the interest thereof; and, in the next place, pay to Mills, Robinson, and Young the sum of 5087l. 6s. 1d., and the interest thereof; and should pay the surplus to Birch, Chambers, and Mayhew, according to the priority of their securities, and in satisfaction thereof, and, subject thereto, to Waters. The deed contained a proviso that in case the interest in respect of the sums of 29797. 1s. and 50871. 6s. 1d. should be regularly paid on the 4th of August and the 4th of February, in every year, or within twenty-one days afterwards, Mills individually, and Mills, Robinson, and Young collectively, would forbear from proceeding to enforce payment of the before-mentioned several sums, before the 5th of July 1826, unless

1837.

WATERS

v.

TAYLOR.

the

1837.

WATERS

1.

TAYLOR.

the Opera House should be previously sold, by Waters, or under any trust or directions for sale created or given by him, or unless the monies and funds in any suit in Chancery thereby assigned, or so much as should be sufficient to discharge the principal and interest monies thereby secured, should be sooner directed to be paid out of court to the persons entitled thereto.

In the early part of the month of January 1822, Mills died, having appointed two executors, of whom Alexander Robert Sutherland, Doctor of Physic, was the survivor. Mills's representatives delivered to Waters further bills of costs for business done subsequently to the deed of the 20th of July 1819, and down to his death, and also for preparing that deed, amounting, together, to the sum of 1920l. 16s. 7d., or thereabouts; and it appeared, by an account annexed to such bills, that in the year 1825, Mills's representatives received a considerable sum of money which they applied in liquidation of the last-mentioned costs; but that a balance still remained due from Waters.

After the death of Mills, Waters employed William Leake, and subsequently John William Bury, as his solicitor.

By two deeds, dated the 15th of March 1823, Waters assigned to Henry Winchester, for the benefit of himself (Winchester), and other creditors of Waters (amongst other things), the Opera House and its appurtenances, and all sums of money, stocks, funds, and other securities then or thereafter payable or transferable to or on account of Waters, by virtue of any decree or order of the Court of Chancery, then or thereafter to be made in any suit or suits then pending, or to be thereafter instituted, respecting the Opera House or its con

cerns;

cerns; and also all monies due from the representatives of Mills, or of Mills, Robinson, and Young, and all property belonging to Waters, then in the tenure of, or claimed to be held by, Chambers or Mills, or Mills, Robinson, and Young, by way of mortgage, security, or otherwise.

On the 10th of March 1832, Dr. Sutherland received from Leake, as the solicitor of Waters, the sum of 3971. 5s. 3d., in part discharge of Mills's claims upon Waters.

By an order of the 30th of April 1836, it was ordered, that the sum of 55,1117. 6s. 10d. Bank 3 per cent. annuities, standing in the name of the AccountantGeneral, in trust in this cause, to the account of Waters, and 7981. 8s. 5d. cash in the Bank, to the credit of the cause, to the like account, or any interest thereafter to accrue due upon the Bank annuities, should not be transferred or otherwise disposed of, without notice to Dr. Sutherland.

Dr. Sutherland, in the month of July 1836, presented a petition, praying for payment, out of the fund in Court, of the amount still due to him, as Mills's representative, under the deed of 1819.

On the 2d of November 1836, before Dr. Sutherland's petition had been heard, a petition was presented by Henry Winchester, alleging that the several bills of costs, the amount of which was secured by the before-mentioned deeds, were never investigated or settled by any person on behalf of Waters, previously to or at the times at which those deeds were executed; and that the sum of 5500l. only had been allowed by the Master in respect of the annuity of 250l., and the sum of 26007. only,

1837.

WATERS

v.

TAYLOR.

1837.

WATERS

V.

TAYLOR.

in respect of the annuity of 2001.; and that, at the time at which the deed of 1819 was executed, it had been referred back to the Master to review his report, with respect to the sum of 5500l.; and that several years after the date of that deed Waters was compelled to pay the sum of 55001. into Court, in part payment of his purchase-money, although a previous order, made before the date of the deed, had permitted him to retain that sum, as well as the sum of 26007. out of his purchasemoney.

The petition also stated, that it was alleged, that after the date of the deed of 1819, Robinson and Young transferred their interest in the 50871. 6s. 1d. to Mills; and it went on to state, that the sum of money received by Mills's representatives in the year 1825 was received and applied without the knowledge or concurrence of Waters, and that the same arose from the sale of certain stock which had been invested in the names of Mills and one Pearce, and which had reference in some manner to the mortgage security to Mills, mentioned in the deed of 1819; and that Mills's bills of costs in Taylor v. Waters amounted to 7471. 4s. 4d., or thereabouts, which sum was included in the security of 1819; that the bill in that suit was afterwards dismissed, in the year 1821, as against Waters, and his costs ordered to be taxed; and that those costs were taxed at the sum of 2291. 19s. 4d.; and that, by an order, made in this cause, on the 22d of May 1830, it was referred to the Master to tax all parties their costs of the suit, up to that time, as between solicitor and client; and that it was ordered that so much of the 3 per cent. annuities then standing to the credit of the cause as would raise the amount of the costs, when taxed, should be sold, and that out of the money produced by such sale the costs should be paid to the solicitors of the parties;

that