1839. Heighington v. Grant.

that the objects of the bill having been determined to be two, and the petitioner had been exclusively charged with a fixed arbitrary proportion for the costs relating to the interest, and also with half of the general costs of the suit, which would have been equally occasioned if the question of interest had never been raised.

Mr. G. Richards and Mr. W. C. L. Keene, contra, contended, that by the long established practice in the Master's office, where the court directs the taxation of the costs of one of the several objects of a suit, it is understood to carry, not only the costs of so much of the suit as relates exclusively to that particular object, but also a portion of every general proceeding in the suit; and that if the court had intended that the extra costs occasioned by the question of interest should be ascertained, it would have directed the taxation. in other words, limiting the taxation to such extra costs only. 2 Smith's Pr. 640, 2d edit., where it is stated, that the order giving to a party a portion only of the costs of suit may be framed in two ways: in one way it may be so expressed as to involve an apportionment of the whole of the general charges; in the other way it may be expressed so that the exception shall only extend to the excess of expense incurred in consequence of the excepted matter. The author then gives the following illustration :-"Suppose a bill filed for tithes of three titheable articles, and the court, as to one of them (say milk,) decides against the plaintiff, and gives him the costs of the suit, except so much as relates to the tithes of milk; at first sight it appears, that when you have taken away the excess of expense occasioned by the claim for tithes of milk, the whole of the other costs ought to be paid; but the law on the subject is, that inasmuch as the tithes *of milk was a [*231] substantive claim, it must bear its due proportion of the general charges of the suit: for although, if the bill was confined to one object, most of the general charges would be the same as if filed for ten objects, yet a party having one sure ground of suit shall not be allowed to bring forward nine other claims without any risk of costs. In the supposed case, the question as to the tithes of milk might have formed a distinct subject for a suit, but the party united it with two other claims; it is reasonable, that as the question of the milk had the full benefit of the suit, it should bear its proportion of the general expense."

Mr. Pemberton, in reply.

April 26.-THE MASTER OF THE ROLLS:-Since the petition was heard, I have inspected the bill of costs, and have received a certificate stating the particular mode in which the taxation was conducted ;(a) *and it [*232]

(a) To the Right Hon. the Master of the Rolls.

My Lord:-I beg most respectfully to certify to your Lordship, that in taxing and apportioning the costs in the above cause, in pursuance of the decree, the following mode of ascertaining the arionnt of "so much of the plaintiff's costs of the suit as seeks to charge the defendant John Grant with interest on the balances from time to time remaining in his hands," was pursued :—The bill

1838. Heighington v. Grant.

appears, that in the taxation, after all costs charged had been reduced to costs between party and party, the number of objects sought by the

was first taxed, disallowing all costs that were not strictly costs as between party and party; the number of objects which the bill sought, was then taken into consideration, and decided to be substantially two: namely, an account of the testator's personal estate, and the payment of interest on the balance from time to time in the hands of the defendant. The bill was then read through, line by line, by the respective clerks in court, in the presence of the solicitors, and, after considerable' discussion, was agreed, that of 72 folios of which the bill consisted, 52 related generally to both the objects of the suit, 9 solely to the question of interest, and 10 to the question of the account, which, being apportioned according to the practice, gave the following results; of the general 52, 264 were added to the 9 folios relating to the question of interest, and 264 to the 10 folios having no such relation, giving, of the whole 72 folios, 354 to the object of interest, and 36 to that of the account,-proportions sufficiently near one-half, to justify the agreement between the clerks in court to adopt that rule as to the bill and the general fees connected with it. This apportionment runs through Michaelmas term 1830, and Hilary term 1831.

The answer being subjected to the same investigation, showed the following result of 78 folios, its total length, 394 related generally to both objects, 184 to the object of interest, and 20 to the other object; 19, therefore, of the general folios, being added to the 18 relating to the object of interest, and 19 (the other half of the general folios) to the other object, the folios stood: 574 to the object of interest, and 40 to the account; being again nearly one half to each object: and the costs of the answer, and the term fee of Easter term 1831, in which term it was filed, were divided in half.

In the same term a motion, by the plaintiff, for the defendant John Grant to pay into court the amount of moneys admitted by his answer to be in his hands, related wholly to the object of account, and did not touch the question of interest; no part, therefore, of the costs of such motion were charged against the defendant.

In Trinity term 1831, the plaintiff obtained an order to amend, and amended his bill accordingly by 41 additional folios; 30 folios, or three-fourths of which amendments, relate to the question of interest, and the costs are apportioned accordingly; charging the defendant with the proportion of three-fourths of the costs of that proceeding.

In Michaelmas term 1831, the defendant put in his answer to the amended bill, containing 35 folios, 25 of which relate to the question of interest; and the defendant is charged with that proportion of the office copy of the said answer.

In the next charge of abbreviating the pleadings, the defendant is specifically charged with the number of folios ascertained, as before, to apply to the question of interest.

In Michaelmas term 1831, and Hilary term 1832, the costs of replication rules, and going into evidence, applying only to the question of interest, are wholly charged against the defendant.

The costs of setting down the cause and the other general fees, up to and including the hearing, are apportioned by the general amount of the folios of the pleadings, including the depositions ; giving, of the total 299 folios, 203 to the question of interest-a proportion so near two-thirds as to induce the adoption of that rate of apportionment from Easter term 1822 to Trinity term 1832.

After the decree, the costs are apportioned according to the two objects of inquiry directed thereby; when both are in progress, the attendance and term fees are halved; if any proceeding related to one object only, the costs are wholly allowed, or wholly struck off, according to circumstances: the proceedings in the Master's office embrace a period from Michaelmas term 1832 to Michaelmas term 1838.

During the progress of the suit in the Master's office, two bills of revivor became necessary, one on the death of a plaintiff, the other on the marriage of one of the female plaintiffs; and, as the revival of the suit was necessary for both purposes, the costs thereof are divided in halves.

Apart from the question of apportionment, the petition presented by the defendant John Grant seeks to show that he has been improperly charged with the cost of a motion, made by him, to pay a sum of 9167. 158. 11d. into court.

1838.-Heighington v. Grant.

bill was considered and held to be substantially two: the account of [*233] the personal estate and the payment of interest on balances and that, upon a minute examination of the bill, it appeared that nine [*234] folios related exclusively to the object of interest, ten and a half ex

clusively to the object of account, and fifty-two and a half folios generally to both objects of the suit ; and this computation left the number of folios, and the costs relating to the two objects, so nearly equal, that the clerks in court agreed so to consider them.

A similar process was applied to the amended bill, and left a proportion of three-fourths for the costs as to the interest, and one-fourth only for the costs. of the account and in the subsequent proceedings the costs were apportioned exclusively to one object or the other, according to the amount actually incurred, on the same principle; and the motion for payment of money into court related exclusively to the interest.

The petitioner is wholly inaccurate in representing that he was charged arbitrarily with a definite proportion of costs, without reference to the actual costs *occasioned: this was not the case-the proportion was [*235] determined by the amount of costs computed to be actually occasioned. I think that in this case, the petitioner was justly charged with a proportion of the costs of the suit which might have been incurred, even if the bill had not sought to charge him with interest on balances, because, in fact, the same points of the bill were required to sustain the charge for in

ter est.

Mr. Mills, one of the clerks in court who assisted in the taxation, has certified to me the mode in which the taxation was conducted; Mr. Smith, the other clerk in court who assisted in the taxation, has excused himself from

With regard to this part of the taxation, I take the liberty of certifying, that the motion related wholly to the question of interest, the above sum being the defendant's own calculation of the amount of interest in his hands; and as no reservation of the costs could be found in the minutes, (no order being ever drawn up,) it appeared that he ought to be charged with the costs of this proceeding; indeed, little or no opposition was offered thereto. I have the honor to be, my Lord, your Lordship's very obedient servant.

Siz Clerks office, April 4, 1839.

To the Right Hon. the Master of the Rolls..

Richard Mills.

We the undersigned clerks in court beg to certify, that (assuming the details to be correct) the apportionment of costs in the annexed certificate of Mr. Mills, has been made according to the rules which have been adopted, where decrees or orders direct the Master to tax so much of the costs of a suit as relate to a particular object of the suit, or where the words of the decree or order, in any way render an apportionment of the costs of the suit necessary.

S. H. Lewin.

George Gatty

James Thomas Horne.
John Wainewright.

W R. Baines.

Oswald Milne.

1838-Eland v. Eland.

giving a certificate; but I have received from several other clerks in court certificates that, if the facts be as stated, (which there is no reason to doubt,) the taxation has been conducted according to the practice.

I am therefore of opinion that the petitioner has wholly failed to make out his case, and that the petition must be dismissed with costs.[1]

ELAND V. ELAND.

1838: July 12, 20, November 16, December 19.

The testator, having charged his real estate with his debts and legacies, devised it to his eldest son A. B. in fee, and appointed him executor. A. B. mortgaged the estate, and covenanted against all incumbrances, except the legacies: Held, first, that the mortgagee took for his se curity the estate, minus the amount of legacies; and secondly that the unpaid debtors of the testator were entitled to the fund reserved in the mortgage deed for legacies, in priority of the legatees.

A. B., the executor and also devisee of real estate subject to debts and legacies, mortgaged it,
first, to C. D. subject to the legacies, and afterwards to E. F. subject to the mortgage to C. D. :
Held, that E. F., taking with notice of C. D.'s mortgage, took subject to the legacies.
THE testator, Thomas Eland, by his will dated in June, 1817, after direct-

ing all his just debts and funeral and testamentary expenses to be [236] fully paid and satisfied, and charging his real estate in aid of his personal estate with the payment thereof accordingly, gave and devised to his wife one annuity or clear yearly rent charge of SO., which he expressly charged upon his real estate at Metham thereinafter devised, and he directed the same to be paid to her half-yearly, and the first payment thereof to commence upon the half-yearly day that should next happen after she should leave their children at Metham aforesaid, and go to live elsewhere; with powers of distress, entry and sale, in case the same should be in arrear. And the said testator gave to the plaintiff, his second son, Abraham Eland, the legacy or sum of 20007., and to his daughter Margaret the legacy or sum of 6007., to be paid to them respectively when and as they should attain their respective ages of twenty-one years: and subject to the payment of the said rent charge and the several legacies thereinbefore bequeathed, the testator gave, devised and bequeathed his messuage, &c., and hereditaments at Metham, and his personal estate, unto his son Thomas Eland, his heirs, execu tors, administrators and assigns, and he appointed him executor.

By a codicil to his will, dated in December, 1816, the testator gave a legacy of 500l. to his daughter Mary.

The testator died in 1817, leaving Thomas Eland his eldest son and heir at law, who proved his will and entered into possession of his property. The testator's daughter Mary died an infant shortly after the testator's death, namely, in August, 1817; Margaret attained her age of twenty-one

[1] Affirmed by the Lord Chancellor, 24th December, 1839.

1838.--Eland v. Eland.

years in December, 1829, and married Nicholas Blanshard; and Abraham attained his age of twenty-one years in 1832, *at which [*237] respective times their legacies became payable.

In April, 1826, while all the legatees were infants, by indentures of lease and release, dated the 5th and 6th of April, 1826, made between Thomas Eland, therein described as "the eldest son and heir at law and devisee in fee, named in the last will and testament of Thomas Eland deceased," of the one part, and Mary Dunn Crooke of the other part, after reciting that Thomas Eland had occasion to borrow 1000l., which Mary D. Crooke had agreed to lend, he, Thomas Eland, mortgaged the property devised by the testator, to Mrs. Crooke in fee, for securing the 10001. and interest; and he covenanted against incumbrances, "save and except the legacies given and bequeathed by the said will of the said Thomas Eland deceased to Abraham Eland, Margaret Eland and Mary Eland," payable to them when they should attain twenty-one, "and save also and except an annuity of 801. to Mary Eland, the mother of the said Thomas Eland, given and devised by the said will of Thomas Eland, deceased."

By indentures of lease and release, dated the 9th and 10th of May, 1826, Thomas Eland mortgaged the property to a Mrs. Seaman in fee, to secure 5007. and interest; and the deed contained the following clause:-" And it is hereby declared that the hereditaments and premises hereby granted and released, or intended so to be, are already mortgaged to Mary Dunn Crooke, by indentures of lease and release bearing date respectively the 5th and 6th April last, and both made or expressed to be made between the said Thomas Eland, party hereto, of the one part, and said M. D. Crooke, of the other part, for the sum of 1000l. and interest."

*By another indenture, dated the 27th of April, 1830, made between [*238] Thomas Eland, of the first part, Mrs. Crooke, of the second part, and Nicholas Blanshard, (who had married the testator's daughter Margaret,) of the third part, after reciting the indentures of the 5th and 6th of April, 1826, and that Thomas Eland had applied to Mrs. Crooke to lend him 500l., Thomas Eland covenanted that the property should remain as a security for the 5007.; and reciting the bequest, by the will and codicil of the testator, of 600l. to his daughter Margaret, with which he had incumbered his hereditaments at Metham; and reciting that, on the day of the date thereof, Thomas Eland had paid unto Nicholas Blanshard the said legacy of 500l.,-Blanshard and Thomas Eland joined in releasing the property from the legacy of 5001. By the death of the testator's daughter Mary, Nicholas Blanshard, in right of his wife, became entitled to one-third part of her legacy, and the plaintiff Abraham Eland, who at that time was under twenty-one, also became entitled to another third; and by an' indenture of the 27th of April, 1831, made between Thomas Eland of the first part, Mrs. Crooke of the second part, and Nicholas Blanshard of the third part, after reciting the indenture of the 27th of April, 1830, in consideration of a further sum of 3501., Thomas Eland exVOL. I.

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