1851. GREENWOOD am also equally satisfied, that there was no intention on the part of Hodgson to conceal that fact from Baker, and that he might easily have ascertained how the matter really stood, if any thing had suggested to him CHURCHILL. any such inquiry. The only other point remaining is, what is the proper construction to be put on this order of August 1849. Upon this point I think, that Mr. Leman has correctly construed the order, when he considered that he could only deal with the costs included in the Taxing Master's certificate. But, for the reasons which I am about to state, I am of opinion, that, according to the true construction of the terms of this order, the Taxing Master's certificate ought to have included the costs relative to the five interlocutory proceedings, already taxed and paid under the orders made by the Court. It is not denied, nor could it be with reason, that, if no costs had been taxed and paid to Hodgson, this order would have included the costs of those five interlocutory proceedings, which form the subject of the present dispute. The words of the order are manifestly large enough to include them; the order is perfectly silent as to the existence of any previous order for taxation of costs; it does not say costs not already taxed, and both the petition and the affidavits, on which the order was founded, are silent as to any costs having been already taxed. In this state of things, the question on the true meaning of the order is this:- whether I am to read the words "the costs, charges and expenses of the Plaintiffs properly incurred in the said suits and otherwise in relation to the matters comprised therein," as meaning "all the costs, &c.," or whether I am to read these words as equivalent to "such of the costs &c. บ. 1851. GREENWOOD v. CHURCHILL, &c. as have not already been taxed and paid." I have no doubt but that the former, which is the primâ facie meaning, is the proper construction. It is true, that in ordinary cases, where the costs are taxed for the purpose of ascertaining the amount due to the solicitor, these words might bear the latter construction, or, if they did not, the Court would restrain the solicitor from receiving more than the amount due to him; but in order to construe this order properly, the scope and object of it must be looked at. These costs are to be taxed, not for the purpose of ascertaining what is due to Hodgson, but for the purpose ostensibly of giving Baker half the profits of conducting these suits; and the profits are extended to and directed to include the profits derived from the costs, charges and expenses properly incurred in the suits and otherwise in relation to the matters comprised therein. How could this be effected, unless all the costs were taxed? On what principle was any and what portion to be excluded? That a portion of the costs had been previously paid to Hodgson was an advantage to him, as he had thereby obtained so much more capital for the purpose of carrying on his own business. If the costs already taxed were to be omitted from the certificate, why was no mention made of such omission? The absence of any such statement of omission is the stronger, as the order suggested the possibility of a previous taxation, inasmuch as it prefaces this order, by a reference to the Master to whom the taxation of costs in these causes had been referred, thereby intimating at least, that a previous order for taxation had already been made. If this order is to be construed as omitting all costs already taxed, the consequences might have been, that all the costs of the suit having been already taxed, with the exception of of a very small portion, that small portion might be the whole of the advantage to be obtained by Baker under this order, or, in other words, that the order itself might be all but nugatory. It is true that the order says, that the amount of such costs, when certified by the Master, shall be paid to Hodgson, the solicitor of the Plaintiffs; but I am of opinion, that this does not alter the meaning of the previous passage, and that these words, relating to the payment to Hodgson, must be taken to mean, that the amount of such costs, or so much thereof as shall then remain due to Hodgson, shall be paid to him. It is manifest that the Plaintiffs might, in the interval between the date of the order and the Master's certificate, have paid, voluntarily or otherwise, a part of the costs so incurred by them. In my opinion, therefore, the Master ought to have included in his certificate of costs, under the order of August 1849, the total amount of all the costs, charges and expenses of the suits and otherwise, in relation to the matters comprised therein, incurred by the Plaintiffs, including as well the paid as the unpaid portion of such costs. I do not mean to say that the Taxing Master was compelled to tax over again the costs he had already taxed. I think that he might have adopted his previous taxation for this purpose; but I am of opinion, that, in order to give effect to the plain and obvious meaning of this order, the Taxing Master ought to have included in the certificate the amount of the five previous bills, which had already been taxed by him. I am satisfied that this is the construction which the Court would have put on this order, if the terms of the order had been framed by the Court itself, after an adverse hearing between contending parties, upon a proceeding in the cause, of which the Court had not 1851. GREENWOOD v. CHURCHILL. 1851. GREENWOOD บ. CHURCHILL. been informed of the fact, that some costs of interlocutory proceedings had already been taxed and paid. I am satisfied, that the circumstance that the order was made by consent, cannot affect the construction of it, and I am therefore prepared to give effect to the order, according to that which I consider to be its real meaning. But in what way can this best or indeed properly be done on this petition as it now stands? Mr. R. Palmer, who felt the force of this objection on his opening, has treated the petition, all along, as one to review the Master's certificate. Mr. Roupell strongly contends that the petition is for a different purpose; and on looking at the prayer, it certainly does not, in terms, pray that the Master may review his certificate, but it does pray a retaxation; and I think, that if a few words were introduced into the prayer of the petition, praying specifically that it might be referred back to the Master to review his certificate, for the purpose of including therein the costs of the five interlocutory proceedings already taxed by him, I might properly make an order to that effect, which is, in my opinion, the only order I can properly make. I am prepared, therefore, to give the Petitioner leave to amend his petition, by introducing a few words into the prayer for this purpose; and upon the petition, as amended, I will make an order, referring it back to the Taxing Master to whom the taxation of costs in these causes has been referred, to review his certificate of taxation, by including therein the amount of the costs, charges and expenses of the five interlocutory proceedings, specifying them. In this view of the case, as this petition, when so amended, will be reduced, in substance, to an appeal from the Taxing Master's decision on the construction of of the order, I cannot give any costs of this petition on either side; but it must take the same course as if it had been originally a petition of the description to which I now permit it to be converted, and on which, as altered, I will make the order I have already stated. 1851. GREENWOOD v. CHURCHILL. THIS HARRIS v. MOTT. HIS was a claim for the specific performance of a contract for sale of some freehold and copyhold premises. A testatrix, by her will, dated in 1805, devised the property in question to Elizabeth (afterwards the wife of William Harris), "to and for her own sole and separate use and benefit." ate use. entered into a contract for sale and died, having devised the estate to her husband, who sued for a specific performance. The purchaser objected, that power to enter By an agreement made the 23d of January 1849, between William Harris and Elizabeth his wife, of the the feme covert one part, and the Defendant Mott of the other part, had neither Harris and wife agreed, and the latter, "separately and apart from her husband, in respect of any separate estate she might have in the hereditaments," agreed to sell the property to the Defendant Mott, for the sum of 6101. 12s. Before the contract had been completed, Elizabeth Harris died, having, by her will, dated in 1849, devised all these freehold and copyhold estates to her husband William Harris and his heirs. into a contract or to devise The Court declined to com the estate. pel a specific |