56 mas term. New Orders in Chancery.-Points in Common Law. 44. After the expiration of two months from two months to examine their witnesses; | founded in point of judicial construction, apand if such two months expire in the long pears very inconveniently to circumscribe the vacation, the time within which the parties discretion of those on whom the duty devolves are to examine their witnesses is extended of taxing bills of costs. In the case referred to the second day of the ensuing Michael- to, the plaintiff, as register of the diocese of Exeter, claimed a fee of 4s. 4d. from the defendants, upon their being sworn in as churchwardens at the bishop's visitation, which they disputed, and an action of assumpsit was brought to try the right. After declaration, but before plea, at the instance of the defendants, an order was obtained to stay proceedings, upon payment of the sum claimed, i. e., 4s. 4d., with costs to be taxed. The "directions to taxing officers," state, that where the sum recovered, or paid into court and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed 207., without costs, the costs shall be taxed on a reduced scale. In this case, the taxing master, after a conference with two other masters, taking into consideration the special nature of the action, and that it involved difficult and important questions of law, allowed the plaintiff the costs on the higher scale; but Mr. Justice Coleridge afterwards ordered the master to review his taxation, and upon the motion to rescind this order of the learned judge, the discretionary power exercised by the master, became the subject of consideration by the court. No one could doubt, the question in issue between the parties in this action, was of a nature which rendered it unfit to be tried by a sheriffs' jury in the country, and that had the cause proceeded to trial before a judge at the assizes, he would have certified upon the application of either party, it was a proper cause to be tried before him. The Court of Queen's Bench, however, held that the case fell within the first branch of the rule, directing the taxation on a reduced scale, or in other words, that it was imperative on the master to tax upon that scale. The only case cited was, that of Wallen v. Smith, which occurred very shortly after the "directions to taxing officers" were promulgated. That was a cause referred at nisi prius, where the arbitrator found in favour of the plaintiff, for a balance under 201., the amount of set-off being upwards of 3001. There, the master taxed the costs, as between party and party on the higher scale, and the Court of Exchequer held, that they ought to have been taxed according to the reduced scale. When the question was again presented to the court, in reference to the taxation as between attorney and client in the same cause, it was said, as it was the first time the difficulty had occurred with respect to awards, it would be hard to deprive the attorney of his fair costs, and that the master could ex Otherwise any defendant may move to dismiss the bill for want of prosecution. 46. A subpœna to hear judgment is not to be returnable at any time less than one month from the teste of the writ; and it is to be served at least ten days before the return thereof. 47. There must, unless the court gives special leave to the contrary, be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion, and at least two clear days between the service of a petition and the day appointed for hearing the petition; but, in the computation of such two clear days, Sundays and other days on which the offices are closed, except Monday and Tuesday in Easter week, are not to be reckoned. 48. There must be at least six clear days between the service of a notice of motion by the plaintiff for the appointment of a guardian by whom a defendant who is an infant or a person of weak intellect or unsound mind may defend the suit, and the day named in the notice for hearing the motion. 49. At any time within three weeks after the execution of an attachment for want of answer, the plaintiff may serve a defendant so attached with a notice of motion that the bill may be taken pro confesso against him, and may move the court accordingly, as directed by Order LXXVI. [These Orders will be continued in our next No.] POINTS IN COMMON LAW. COSTS.—TAXATION ON THE REDUCED SCALE, ercise his discretion. Since the case of Wallen v. Smith, a provision has been constantly introduced into rules of reference, as suggested Charge on Lands.-Usury. 57 in that case by Baron Parke, giving the arbi-, Pollock, C. B., said, "The rules was not trator the same power as a judge to certify that intended to prevent a party from having, at his the cause was proper to be tried before a judge of the superior courts, and not before a sheriff. When an arbitrator is invested with such an authority, the rights of the parties in this respect may be considered as sufficiently protected. So, likewise, when a judge refuses to make an order for trial before a sheriff, in cases so triable, or where a judge tries a cause and the plaintiff recovers less than 201., as the scale of taxation is within the direction of the judge, no just ground of complaint arises. actions settled before trial, where the sum paid But in is under 20l., if the costs are to be uniformly taxed upon the reduced scale, without any reference to the intricacy, importance, or delicacy of the questions involved, it is to be feared that the party successfully asserting a right, or his attorney, as the rule is equally applicable to taxation between attorney and client, will often find that he has done so at a considerable pecuniary sacrifice. own expense, any assistance he may wish. Where unusual expenses are incurred under directions given by the client, it is the duty of the master to see that such expenses were incurred not only at the express desire of the client, but with a full knowledge on his part that he could not recover them from the opposite party. If it clearly appears that additional costs have been incurred in consequence of express directions given by the client, with a in his discretion may allow them." full knowledge of the consequences, the master Parke, B., referring to the statute 6 & 7 Vict. And c. 73, observed, that as that act rendered the master's certificate final and conclusive as to the amount due to the attorney, if disallowed by the master on taxation, the attorney could never recover the expenses incurred by him at the express desire of the client. The rule to review the taxation was thereupon made absolute. CHARGE ON LANDS.-USURY. The just principle applicable to costs, appears to be, that the successful suitor should not put his adversary to any wanton or unnecessary expense, but that he should be reimbursed for all his necessary and legitimate expenses. There are undoubtedly an important class of cases, in IS A JUDGMENT AT LAW A which, although the sum in dispute is less than 20%., the successful litigant would not be indemnified by payment of costs taxed on the reduced scale. The omission to invest some competent tribunal with discretionary authority in this matter, may operate disadvantageously in inducing persons to reject overtures of settlement at an early stage and influencing them to proceed to trial; and even where no such consequence can be anticipated, the absence of a remedy for the recovery of reasonable costs properly incurred, can scarcely be looked upon in any other light than as a defect in the adadministration of justice. 66 SECURITY OF ANY LANDS" UNDER 2 & 3 VICT. c. 37, s. 1.? ble importance in relation to the very common THE above mooted question is of considerapractice of taking a warrant of attorney to confess a judgment for securing the payment of bills of exchange, discounted at a greater rate of interest than 57. per cent. per annum. Is a judgment entered up under such circumstances liable to be invalidated on the ground of usury? 1st Vict. c. 37, s. 1, it by no means follows that Assuming that the bills are protected by the Although the "Directions" are imperative attorney given at the time the bills were disthe judgment, founded upon the warrant of upon the taxing officers as regards the scale of counted, is not liable to be upset for its taxation applicable to each particular case, usurious consideration; the above-cited section they are invested with a reasonable discretion providing "that nothing therein contained as to extraordinary expenses, incurred bond shall extend to the loan or forbearance of any fide with the knowledge and at the request of the client. Therefore, in a recent case, where money upon security of any lands, tenements, an attorney, in consequence of express direcor hereditaments, or any estate or interest tions from his client, employed counsel in a therein." case tried before the sheriff, and the master, on that a judgment already entered up or to be taxation between attorney and client, conceived thereafter entered up against any person in any himself bound, under the "Directions," &c., to disallow the expenses of the brief and counsel's fee, the Court of Exchequer granted a rule to review the taxation. In that case The directions to taxing officers, H. T. 4 W. 4, in terms applied only as between party and party, but the substituted rule, T. T., 7 Vict., expressly includes the costs between attorney and client, and the defendant's as well as the plaintiff's costs. See 13 Mees. & W. p. 1. 1 In re J. C. Smith, 2 D. & L. 376. The stat. 1 & 2 Vict. c. 110, s. 13, enacts, of her Majesty's superior courts at Westmin- 66 & Meaning the Directions to Taxing Officers, R. T. 7 Vict. 58 Costs in Actions on Judgments.-Superior Courts: Rolls. 66 The first point that presents itself, upon the who obtains merely a deposit of deeds, and I construction of this section, is simply-what is apprehend, must, since the recent enactments, the meaning of the words “shall operate as a be considered equally at least with the depositee, charge," what is a charge upon land at law ? as lending upon the faith of the land; at any I use the words 'at law' expressly, because a rate, it can no longer be alleged, as was said by charge at law is a very different thing from a Sir J. Jekyll in Brace v. Duchess of Maricharge in equity, and there is nothing in the borough, a judgment creditor has no right to statute, nor could it, I conceive, be intended to the land, he has neither jus in re nor ad rem." confine the word charge to its equitable inter- In conclusion, I cannot help inclining to the pretation, and to restrict the remedies of the opinion, that whenever the point is decided by judgment creditor to a court of equity alone. a competent authority, it will be held that a Now, at law, nothing, I apprehend, amounts modern judgment is a security upon land withto a charge upon land, short of an actual con- in the proviso of the 1st sec. of the above-cited veyance. If A. agrees to grant an annuity, usury act. and to 'charge' the same upon his lands, the A. E. F. annuity deed either actually conveys the fee simple to trustees, or demises the lands for a term of years; in either case, an actual trans- COSTS IN ACTIONS ON JUDGMENTS. mutation of possession is necessary to carry into effect the agreement of the parties: hence, if the judgment is to have any operation at all, by virtue of the words "shall operate as a charge," it must be considered in force and effect as tantamount to an actual conveyance of the debtor's lands. This seems to be the straightforward construction, and it will appear, upon reflection, to be strengthened rather than controlled by the subsequent portion of the section, pointing out the effect the judgment shall have in equity; for, as in the contemplation of equity, that which is agreed to be done is considered as actually performed, · - an agreement to charge is equivalent to a charge itself; so also, a mere writing under hand is, in equity, of as binding debt, founded upon a judgment recovered in a previous action for a debt under 201., and the attorney proceeded to tax the costs of the action on the judgment. The Master declined to tax the costs without a judge's order. A summons was accordingly taken out, under 43 Geo. 3, c. 46, sec. 4, which was opposed. Mr. Baron Platt, after consulting his learned brothers, made an order for the costs, stating that the judges had resolved to allow costs in actions on judgments in all cases where the defendant pleaded, (and of course failed to maintain his plea,) without reference to the nature of the plea. A VERDICT was obtained in an action of Greenwood v. Armstrong, 6 May, 1845. force as a more solemn and formal instrument. veyance. In Rolleston v. Morton, Lord Chancellor Sugden, upon commenting upon the very words, DECISIONS IN THE SUPE- Kolls Court. (contained in the Irish stat. 3 & 4 Vict. c. 105, [Reported by SAMUEL MILLER, ESQ., Barrister-at s. 22,) made the following strong observations: "The act of parliament is perfectly clear, and free from all ambiguity and doubt; that which formerly by force of the stat. of Westminster was a general charge upon the lands, now becomes a specific lien; words cannot be more express;" and again, “ we are no longer dealing with a general lien, but with a specific incumbrance." b Law.] PRACTICE-SERVICE OF BILL.-CONSTRUC TION OF ORDER 23 OF AUGUST, 1841. Semble, The 23rd order of August, 1841, does not apply to the Attorney-General, in a case where it is necessary to make him party to a bill. In the case of Turquand v. Mosedon, it was ON the hearing of this cause, which was a held that a deposit of title deeds was clearly suit for the administration of the estate of a within the proviso of the 1st sec. of the 2 & 3 person named Cleghorne, it was suggested by Vict. c. 37, and that, having accompanied the Mr. Wray, as amicus curie, that the Attorneyexecution of a bond as a collateral security, it General, who was a defendant, having only took the bond (which was usurious) out of the been served with a copy of the bill, and not protection of the statute. having therefore appeared or put in any answer, Now, if a deposit of title deeds, which is a the suit was defective for want of parties. The security upon land, in equity only, be within bill simply prayed that the Attorney-General, the proviso, à fortiori must a judgment be on being served with a copy of the bill, might within it, which is a security upon land, nor in be bound by all the proceedings in the cause. equity only, but at law likewise; an individual Mr. Pitman, for the plaintiff, said, this was advancing money on the security of a judgment, a case within the 23rd order of August 1841, gets a greater hold upon the land than one where no account, payment, conveyance, or 1 Dru. & War. 195. b 7 Mee & Webb, 504. c 2 P. Wms. 490. Superior Courts: Vice-Chancellor. 59 other direct relief was sought against the, their respectively attaining their ages of 21 Attorney-General, and that it was not neces- years, and the other moiety thereof to be paid sary to call upon him to appear or put in any on their respectively attaining the ages of 25 answer to the bill. years, with benefit of survivorship. The testator then gave his two leasehold messuages in Great Russell Street, Bloomsbury, to his executors, upon trust, in case his daughter-in-law, Mary Ann Darbon, widow of his late son, should remain the widow of his son at his The Master of the Rolls said, the cases to which the order was intended to apply were those where there was a mere duty to perform, without being coupled with any interest; but where the Attorney-General was a party, as in this case, he might have important public in-decease, out of the rents and profits thereof to terests to protect. Mr. Wray said, that if the plaintiffs would undertake to amend their bill, by adding to it a prayer that the Attorney-General should appear to and answer the bill, he would not object to the cause being heard; but the plaintiff's must also discharge the order they had obtained for entering the memorandum of pay to his said daughter-in-law, so long as she remained the widow of his said late son, the clear annual sum of 50%., by half-yearly payments, the first payment to be made at the expiration of six months after his decease; and upon further trust to lay out and invest the surplus rents, issues, and profits of his said two leasehold messuages in the names of his said trustees, in the public stocks or funds, or upon This arrangement was acceded to, and the government or real securities, at interest. cause was heard, and a decree made for a refer-And the testator directed that his said trusence to the Master. The Master of the Rolls, tees should stand possessed of such surplus, however, said, it must be understood that the and of the interest, dividends, and ancourt only decided that in this case the bill ought to have been served and an answer put service. in. Christopher v. Cleghorn, April 29th, 1845. Vice-Chancellor of England. [Reported by E. VANSITTART NEALE, Esq., Barrister at Law.] WILL, CONSTRUCTION OF. ACCUMULATION. ANNUITY. nual produce thereof, upon such and the like trusts for the benefit of his wife for her life, and after her decease, for the benefit of his three grand-daughters, and with such benefit of survivorship between them as were thereinafter expressed and declared concerning the stocks, funds, and securities to be purchased with his ready monies and the monies to arise from the sale of his residuary personal estate, and the interest, dividends, and annual proceeds thereof respectively; and from and immediately after his A. by his will gave certain leasehold property decease, in case his daughter-in-law, Mary to trustees, upon trust to apply the rents Ann Darbon, should have married again at his and profits, in the first place, in payment of decease, or from and after the decease or second an annuity of 501. to his daughter-in-law, marriage of his said daughter-in-law, as the and to accumulate the surplus for the case might be, then upon trust that his benefit of his three grand-daughters: Held, trustees should with all convenient speed sell that the annuity was not a charge upon a and dispose of his said two leasehold messum of money in the hands of the trustees, suages or tenements, and lay out and invest which had been accumulated from surplus the monies arising from the sale thereof in the rents, although the leases of the property public stocks or funds, or upon government had nearly expired, the testator having expressly excluded any sale of the property, except in the event of the death or second marriage of his daughter-in-law. or real securities, at interest, and stand possessed of such last-mentioned stocks, funds, and securities, and of the interest, dividends, and annual produce thereof respectively, upon such and the like trusts for the benefit of his wife for her life, and after her decease, for the benefit of his three granddaughters, for their sole and separate uses and benefits, and with such benefit of survivorship between them as were therein before expressed concerning the stocks, funds, and securities to be purchased with his ready monies and the monies to arise from the sale of his said residuary personal estate, and the interest, dividends, and annual produce thereof respectively. JOHN DARBON, the testator in the pleadings named, by his will, dated in January 1819, after giving certain specific legacies and making certain provisions out of his real estate for the benefit of his wife, gave the residue of his personal estate to his executors, upon trust with all convenient speed after his decease to sell and convert the same into money, and invest the produce thereof in government stock or funds, or on real securities, and to stand possessed of such stocks or funds upon trust to permit his wife, Elizabeth Darbon, to receive The testator died in July 1821, leaving his the interest, dividends, and annual produce widow and daughter-in-law and his grandthereof for her life, and after her decease, then daughters, the youngest of whom attained her in trust for his three grand-daughters, Eliza- age of 25 years on the 15th of October, 1835. beth, Sarah, and Sophia Darbon, equally, one The rents of the two leasehold houses amounted moiety of the respective shares of his said to 957. a-year, and the executors, after paying three grand-daughters to be paid to them on the annuity of 50%. to the testator's daughter 60 60 Superior Courts: Vice-Chancellor.-Queen's Bench. in-law, invested the surplus in the funds, and paid the dividends of the stock so purchased to the testator's widow until her death, which happened on the 9th of February, 1831, subsequently to which the whole of such surplus and dividends had been suffered to accumulate, and amounted to 9007. 3 per cent. annuities. This suit was instituted by one of the granddaughters, and the bill prayed that herself and sisters might be declared entitled to the surplus rents, and that the 900l. and the future surplus rents, after paying the annuity of 50%., might be divided between them. The testator's daughter-in-law, on the other hand, insisted that as the leases of the houses would shortly expire, all accumulations should be reserved for the purpose of satisfying the annuity, for which there would otherwise be no provision. but the costs of the suit must be paid out of the fund. Darbon v. Rickards, April 18th, 1845. Vice-Chancellor Wigram. [Reported by J. H. COOKE, Esq., Barrister at Law.] PRACTICE. -- SOLICITOR. SUBSTITUTED Service of subpoena upon a solicitor who had been, and continued to be, employed by the defendant in the matters to which the suit related, allowed to be taken as good service, the defendant not being found, after due inquiry. Mr. Koe and Mr. Rogers said, that the subpoena to appear and answer upon the deMR. Greene moved that the service of a annuity being given out of the rents and fendant's solicitor, might be deemed good serprofits of the leasehold houses, and there being vice. The circumstances were these: Trustees an express disposition of the surplus, the in- of a settlement had committed a breach of trust tention of the testator could only be carried by disposing of a portion of the trust fund in into effect by an order according to the prayer favour of the tenant for life under the settleof the bill. Mr. Bethell and Mr. Glasse, contrà, urged that it was plainly the intention of the testator to secure to his daughter-in-law an annuity of 501. during her life, and for that purpose he had set apart a particular portion of his estate. If therefore the rents and profits of the leasehold houses out of which the annuity was payable had been at any time insufficient to provide for the annuity, the arrears would have been a charge upon the corpus of the estate, and as the accumulations in the hands of the trustees must be considered as a part of that corpus, they ought to be held liable in the first place to the annuity. They cited Arundell v. Arundell, 1 Myl. & K. 316; Stamper v. Pickering, 9 Sim. 176; Boyd v. Buckle, 10 Sim. 595; Foster v. Smith, 2 Yo. & Col. C. C. 193. The Vice-Chancellor said, that in order to arrive at a proper conclusion as to the rights of the parties in this case, the court must look at the particular language of the will. If it was said that at all events the leaseholds were charged with the payment of the annuity, then if any portion of the annuity should be in arrear, the whole must be sold; whereas it was plain the sale of the leases was only directed in the event of the death or second marriage of his daughter-in-law; and the fact of the testator's having directed the sale to take place at that time, was conclusive against the inference that it should take place at any other time. He intended, therefore, that the annuity should be paid, and the surplus rents accumulate, and by this arrangement it seemed that the testator expressly excluded any sale. What he meant was, that the annuity should be a charge on the whole, so as to prevent his wife from taking the rents and profits which, to the extent of the annuity, were intended as a provision for his daughter-in-law. The three granddaughters were therefore entitled to the accumulations; ment. of the trustees, who had assisted him with a The latter mortgaged estates in favour part of the trust fund. A portion of this had been replaced by means of a sale of part of the mortgaged property. instituted the suit against the trustee of the The surviving trustee mortgage deed, for the purpose of enforcing a sale and replacing the balance due to the trust fund under the settlement. had kept out of the way, and had thus avoided The defendant service. Mr. Rosser, upon whom service was now sought to be substituted, had been concerned in the mortgage transaction between the tenant for life and the trustee of the settlement, and in the sales. Rosser had continued acting in the suit down It was sworn that Mr. to the present time. The following cases were cited in support of the motion: Weymouth v. Beav. 391; Hobhouse v. Courtnay, 12 Sim. Lambert, 3 Beav. 333; Cooper v. Wood, 5 148. stating the facts of the case, and especially that & 18, 1845. Queen's Bench. CERTIORARI.-SPECIAL CASE.-COSTS. The Court of Quarter Sessions granted the appellants (against an order of removal) a special case, which was set down for argument in the crown paper, but which, when called on, could not be heard, because the |