the case of Jupp v. Geering (2); in other cases the rule had been acknowledged. Hall v. Smith, 1 Bro. C.C. 438. Mr. J. Parker and Mr. Goodeve, in support of the bill of revivor, contended, that after a final decree had been made, in which the Court ordered the plaintiff to pay costs, that was as much a debt decreed by the Court as any other process of law could make it. It would be absurd to say that a debt was lost merely by the death of a party to whom it was due. The case of Jupp v. Geering might be considered an authority in favour of the plea; but in that case Sir J. Leach took upon himself to overrule the decisions of three Lord Chancellors and in Morgan v. Scudamore it was decided, that there might be a revivor for costs alone. In that case Lord Loughborough acted upon the case of Price v. Humphrey (3). [The VICE CHANCELLOR said, the words attributed to Lord Loughborough were manifestly incorrect, and he must, therefore, suppose that the reporter had made a mistake. The old practice appeared to have continued down to Lord Camden's time; after that, the rule seemed to have been unsettled until Lord Eldon decided that there could not be a bill of revivor for costs alone. His Honour always thought this a very hard rule; but the question really was, whether such was the rule of the court or not: if it were so, it must be acted upon still, until it was finally altered, which might easily be effected.] Further cases cited Lloyd v. Powis, 1 Dick. 16. Blower v. Morrets, 3 Atk. 772. (2) 5 Madd. 375. (3) 1 Dick. 381. A search was made for this case in the register's book, and it was supposed that the case meant by the reporter was that of Mears v. Mears, Reg. Lib. 1765, f. 237. The VICE CHANCELLOR.-I am glad that this case has been brought forward, and I have been much pleased with the arguments in support of the bill. It is unquestionable, and indeed it seems to be admitted by the other side, that from a very early period down to the time of Lord Camden, the rule of the Court was that a bill of revivor would not lie for costs alone. Some exceptions there were, as, for instance, where the costs were ordered to come out of a fund, &c., but that the rule existed in that way is undeniable. The fact that the chief argument against the rule has been on the ground of its morality, proves the existence of the rule. It also appears, that, although Lord Camden took upon himself to decide in the manner in which Lord Loughborough states that he did, of so little authority was that decision held, that it was expressly overruled by Lord Bathurst. Then we have the decision of Lord Loughborough, in Morgan v. Scudamore, in 1796; and it is to be remarked, that that decision cannot be said to have settled the law, for Lord Eldon, in Jenour v. Jenour (4), laid down the rule itself in a general way. He says, "You cannot revive for costs alone; but if costs are to be paid out of an estate, you may revive for them." He states the general rule, and that that general rule was subject to exceptions. This shews that his Lordship was alive to the state of the practice at that time. Lord Redesdale also gives the general rule, that there cannot be revivor merely for costs; and he so laid down the rule in the second edition of his book, in 1787, in the third edition, in 1814, and in the last edition, in 1828. No point of practice is better settled than this. Then, it appears that the question came on again in 1820, which was twenty-four years after the decision of Lord Loughborough; and there, Sir John Leach, in answering the argument which had been used by Mr. Spence, acknowledged the general rule, and so decided; and that decision still remains undisturbed and now, twentysix years after that, this case comes on. I am not, in a question of this kind, to enter into the original propriety of the practice. But it strikes me, one cannot conceive that (4) 10 Ves. 562 it could have been just, that, without any exception, and, under all circumstances, and at any time, a bill of revivor might have been filed for procuring the payment of costs. That would have been giving a perpetuity which no other general rule has. I am told that this general rule of practice is wrong, but I am not told how it should be corrected, whether at once, to reverse it simpliciter, or how otherwise. If a new rule is to be established, it must be by a superior authority; I have only to consider what is the rule at present, and I do understand it to be, that, if there is a decree for payment of costs, and such costs are not taxed before the abatement, and are not within the excepted cases, there cannot be a revivor for those costs alone. I cannot think that the mere circumstance of something remaining to be done under the decree would have the effect of giving a right in perpetuity to revive for costs. Whatever absurdity there may be in the original rule, there would be much greater in allowing this perpetuity. It has been contended, that this plea is wrong, because it is a plea of an immaterial thing, meaning that the documents were all delivered up. Upon the best consideration I can give the matter, I think the fact stated in the plea, that the documents were delivered up, was a material fact to be stated. My opinion is, that the practice is too strongly laid down for me to disturb it; and I must hold this plea good. when the plaintiff's contract was entered into, that afterwards the mines having become more valuable, that amount was not then a fair rent, and the lease granted by the defendant was therefore contrary to the act:-Held, upon a demurrer for want of equity, that a party coming for performance of a contract could only have it as it actually existed, and that as the rent reserved in the plaintiff's contract was not the best that could be obtained, it was contrary to the act, and in effect fraudulent. The plaintiff, therefore, could not have his contract enforced, and the demurrer was allowed. Held, also, that it was an undeniable proposition, that when a party entered into a contract without having the power of performing it, and afterwards acquired the right to do so, he was then bound to perform it. This bill was filed by William Carne and three other persons, suing on behalf of themselves and all other the adventurers or shareholders in the North Wheal Rose Mining Company, in Cornwall, against the defendant Mitchell and others, who acted on behalf of all the shareholders in the East Wheal Rose Mining Company. It was stated that John Oxnam, by his will, dated the 7th of June 1810, gave to his wife, since deceased, all his freehold estate called Warrens, during her life, and afterwards he gave the same to John Oxnam, a defendant, for his life, and after his decease, to his first and other sons, as tenants in tail. That in the year 1829, John Oxnam, the defendant, granted a lease of the property, by way of mortgage, to Hugh Jane, for ninety-nine years, if the said John Oxnam should so long live, upon trust for securing the sum of 250l. to Hugh Jane. This term was afterwards assigned and transferred to Thomas Nicholas, with a power of sale, in case the sum of 250l. should not be paid. Default having subsequently been made in payment of this sum, the property was sold to John Huddy, by public auction, and at the time of the auction, it was stated by the auctioneer, and by Thomas Nicholas, in the presence of the defendant, John Oxnam, that the purchaser of the hereditaments would be entitled to all the minerals under the same. It was then stated, that the mines worked by the North Wheal Rose adventurers, were situated in land adjoining the aforesaid hereditaments, and it became desirable for them to get a sett or lease of the minerals under a field called the "Wood ground." The company, therefore, applied to John Oxnam and John Huddy, to grant them such lease, and after some discussion as to who had the power of granting the lease, John Huddy entered into an agreement, on the 14th of December 1839, with the North Wheal Rose Company, authorizing them to dig and search for minerals in the field called "Wood ground," and to carry off the said minerals belonging to him, and to grant a deed for the sett, at the rate of one-fifteenth of the minerals, which consisted of lead and tin, with the full knowledge and approbation of John Huddy and John Oxnam. It was then stated, that the mines having become very valuable, another company in the neighbourhood called the "East Wheal Rose Company," made endeavours to obtain a lease of such mines for their own benefit, and applied to John Huddy and Oxnam, when a plan was adopted under which Huddy, for 4991., assigned to the defendant Mitchell, the said appurtenances, for the residue of the term of ninety-nine years, determinable as aforesaid, in trust for the East Wheal Rose Company, and afterwards an act of parliament was obtained, dated the 1st of August 1843, empowering the person entitled to the possession of the lands, to grant a lease for twenty-one years of the minerals, and a lease was consequently made to the East Wheal Rose Company, under which they had entered and continued to work the mines. It was then charged, that this lease was fraudulently obtained, contrary to the rights of the plaintiffs; that under the act of parliament it was directed, that the best rent should be obtained from the mines, and that although one-fifteenth part of the minerals raised was a fair rent before the works had been commenced, that now as the mines had turned out to be so very beneficial, onefifteenth was not a fair rent, and was, therefore, contrary to the act of parliament. The bill prayed, that the lease granted to the East Wheal Rose Company, might be delivered up to be cancelled, and that the agreement entered into on the 14th of De cember 1839, by Huddy and Oxnam, to allow the plaintiffs to take the minerals, might be enforced, and a lease made in pursuance thereof, under the powers given by the act of parliament. A general demurrer for want of equity was put in to this bill. Mr. Stuart and Mr. Prior, appeared for the demurrer. Mr. Bethell and Mr. Follett, in support of the bill. It The VICE CHANCELLOR said that, having regard to the charge in the bill, that the rent of one-fifteenth of the minerals raised was less than the value which ought to be obtained, and that, in consequence thereof, the lease was void under the act of parliament, he should allow the demurrer. appeared to his Honour, that the effect of the memorandum of agreement of December 1839 was, that Huddy undertook to grant a lease of all the mines belonging to him, under the Wood ground field. He authorized them to dig and search for minerals, and to carry off the minerals belonging to him, and to grant a deed for the sett at the rate of one-fifteenth of the minerals raised; so that, in fact, he agreed to grant a lease at that rent, and a party coming to the Court for the performance of a contract, could only have it as it actually existed, and by that must stand or fall. As to the question of equity, he was of opinion, that it was an undeniable proposition, that when a party entered into a contract without having the power of performing that contract, and afterwards acquired the right which he contracted to dispose of, he was then bound to perform it. The bill stated distinctly, that the act of parliament authorized a lease to be granted at the best rent which could be obtained, and that although one-fifteenth was the best rent formerly, it was not a fair rent now, and was, therefore, contrary to the act, and, in effect, fraudulent. He did not see what power he now had to order the lease to be cancelled; and he should, therefore, allow the demurrer. In January 1830, two new trustees were appointed of a marriage settlement, which had been executed in 1817, in the place of two of the original trustees, one of whom was dead, and another (William Buckle) had been found a lunatic by inquisition in 1823. Another of the original trustees afterwards went to America, and, as the power contained in the settlement for the appointment of new trustees did not apply to such a case, a petition was presented to the Court in November 1845, praying for the appointment of a new trustee in the place of the trustee who was gone to America. A reference was ordered upon that petition, and the Master, by his report, found (among other things) that William Buckle had become a lunatic and incapable of acting as trustee; and also found that another trustee had been appointed in his place; and he approved of a proper person to be appointed a trustee in the place of the original trustee, who had left this country. A petition was now presented in the matter of the lunatic, and in the matter of the act 1 Will. 4. c. 60, by the parties beneficially interested in the trust fund, and by the other trustees, praying that the committee of William Buckle might join with the continuing trustees in transferring the trust funds into the names of the new trustees. Mr. Campbell supported the petition, and stated that the parties were desirous of avoiding the expense of another reference, if the Court would act upon the report which had been already made in the reference upon the former petition. NEW SERIES, XV.-CHANC. This suit was instituted for the administration of the estate of John Russell, deceased, by Elizabeth Russell, his wife, on behalf of her five infant children. A decree was made in 1838, for a reference to the Master, to take the accounts of the estate, when it appeared that three promissory notes were found in the possession of the testator, at his decease, bearing date the same day as that upon which the testator had made his will, and that the executors had paid the amount of these bills to the different persons in whose favour they were drawn. The plaintiff opposed this payment by the executors, and contended, that there had been no consideration for the promissory notes, and that the executors were not justified in having paid their amount. During the investigation before the Master, the plaintiffs obtained the attendance of counsel to argue the question, and the executors also engaged counsel to argue on their behalf. Various discussions took place, and the Master finally decided, that the executors 2 P were entitled to their discharge, in respect of these several sums, and stated, that the inquiry had been necessary and proper, for the purpose of investigating the circumstances connected with the transaction. Upon the cause coming on for further directions, it was referred to the taxing Master to tax all parties their costs (the costs of the executors, as between solicitor and client); the taxing Master thought that he was not authorized to allow in the costs incurred by the plaintiff, the charges for fees paid to counsel, upon their attendance before the Master, or for the briefs and copies of papers furnished to counsel upon such attendance. A petition was now presented by G. Healey, the husband of one of the testator's children, praying that the taxing Master might be directed to review his report upon the taxation of costs, and to allow the plaintiffs their costs, in respect of the attendance of counsel before the Master upon the inquiry as to the promissory notes, or so much of such costs as were properly incurred by the petitioner. Mr. Bethell and Mr. Bagshawe, for the petition, contended, that under the terms of the 120th Order of the 8th of May 1845 (1), the taxing Master ought to have allowed the costs of the attendance of counsel in the Master's office. A difficult question had been raised, which related to the title of the executors to a discharge for the sums so paid by them in respect of the promissory notes, and the Master had himself stated that the inquiry was necessary and proper. Mr. Stuart, Mr. Willcock, Mr. Toller, and Mr. Bates, appeared for the different parties to the suit, in opposition to the petition, and contended, that this was not a question relating to pleadings or title; and, therefore, the Master was not empowered to allow the plaintiffs their costs for the attendance of counsel. The VICE CHANCELLOR.-It appears to me, that I am bound by the decree made (1) 120th Order-Where costs are to be taxed as between party and party, the taxing Master may allow to the party entitled to receive such costs, all such just and reasonable expenses as appear to have been properly incurred in procuring the attendance of counsel in the Masters' offices, upon questions relating to pleadings or title. Ord. Can, 333; 14 Law J. Rep. (N.s.) Chanc. 296. in this cause, which has directed that it should be referred to the taxing Master to tax the costs of the suit, and the costs of the executors as between solicitor and client. Under this decree, the costs of the petitioner were to be taxed as between party and party. There is no complaint as to what the Master has allowed, but as to what he has disallowed. The Master had the 120th Order of May 1845, for his guide, and I think that if, in fact, the taxation took place after the time when these Orders came into operation, the taxation must be governed by that Order. Now it is admitted that the taxation was not completed till January in this year; and, therefore, the case comes within the New Orders. By the 120th Order, where costs are to be taxed between party and party, the Master is to allow all just and reasonable expenses; amongst other things, procuring the attendance of counsel in the Master's office, upon questions relating to pleadings or title. It has not been argued that this is a question relating to pleadings, but to title; because it was a question whether a certain sum which the executors charged in passing their accounts ought to be allowed or not. I cannot induce myself to think such a question as this is one relating to title. Take the words in their ordinary acceptation. If two professional gentlemen were talking together, and one of them were to say that he had been attending the Master upon a question of title, would any person suppose that he meant a question relating to the allowance of an item in an executor's account? I do not think that the terms of the 120th Order would justify the Master in allowing costs for the attendance of counsel upon such a question; and, therefore, I think that the taxing Master was right, and this petition must be dismissed with costs. |