gagee having been called in, an agreement was entered into for a transfer of the security to another person, and Mr. Wells, as the solicitor of the mortgagee, was applied to by the petitioner for an abstract of the title to the mortgaged premises for the perusal of the intended transferee. At a meeting of the several parties to perfect the transfer, the clerk of Mr. Wells delivered his bill of costs, amounting to the sum of 197. 1s. 10d. The mortgagor objected to the bill in respect of some of the charges therein contained as being unreasonable, and more particularly a charge of four guineas for drawing an abstract of title, although the same was only a copy of an old abstract then in the possession of Wells, as the solicitor of the mortgagee, with the addition of the abstract of the mortgage deed. The bill also contained a charge of 3s. 4d. in respect of an attendance which had never been afforded by the solicitor, and one of 11. for the service of notices on the tenants of the mortgaged property, which might have been effected more economically by means of the bailiff. The clerk declined either to permit any deduction or abatement to be made in the bill, or the payment to be deferred for a few days, until an interview could be had with Mr. Wells on the subject of the charges objected to. The bill contained some items in respect of business done by the solicitor for the mortgagor. Mr. Goodeve, in support of the petition, contended, that it was sufficient in a case like the present to shew that the items complained of were unreasonable in their nature, and that the bill had been paid under pres sure. Mr. G. Turner, contrà, contended, that according to the statute 6 & 7 Vict. c. 73. special circumstances must be adduced to justify the taxation of a solicitor's bill after payment thereof; that it had not been shewn what (if any) additional expense had been incurred in drawing the new abstract, instead of making a copy of the old one and adding the abstract of the mortgage security; that as to the charge of 3s. 4d. for the attendance, the respondent was willing to give that up; and that the circumstances stated in support of the petition were not sufficient (especially where the bill was of so small an amount,) to justify an order for taxation-Waters v. Tayler (1). The MASTER OF THE ROLLS.-The refusal of the clerk of the solicitor to allow the payment of the bill of costs to stand over for a day or two, to enable the mortgagor to see the solicitor relative to some of the charges therein contained which were objected to, is a special circumstance. The bill was clearly taxable when delivered; and with such means of investigating it as were afforded to the petitioner, there appeared to be at least one material item properly objected to, so that the party receiving payment of the amount of the bill of costs took it, knowing that some of the charges contained in it were objected to by the petitioner, and taxation ought to be allowed; first, because no sufficient opportunity was afforded for the examination by the petitioner of the bill of costs; secondly, because the clerk received payment of the bill, knowing that certain items therein contained were objected to by the petitioner; and, thirdly, because there were overcharges in it. With the exception of the items specified, the bill of costs does not appear to me otherwise than a moderate one. I will not undertake to say what the difference is between the charge made in this bill for drawing a new abstract, and the making a copy of the old abstract, with the addition of the abstract of the mortgage security; but the circumstances adduced are sufficient to entitle the petitioner to a reference for a taxation of the bill. There was a demand of immediate payment of the bill by the clerk, and there clearly appears to be at least one item that is not reasonable in its nature. The circumstance of there being items of charge against the mortgagor introduced into the bill is no objection, and the petitioner in the end, though entitled to the order sought, may perhaps not find the costs of the taxation payable as he may wish, the amount of the items objected to being so small. The taxing Master must have liberty to state special circumstances, and the costs will be reserved. (1) 2 Myl. & Cr. 526; s. c. 6 Law J. Rep. (N.S.) Chanc. 245. Process-Substitution of Service-Agent. Where it appeared that the agent of a defendant abroad had a general authority to act on behalf of his principal in relation to a matter which eventually became the subject of a suit, the Court ordered that service upon such agent of the subpoena to appear and answer the bill, and also of an injunction which had been granted against the defendant, should be deemed good service upon his principal; but before making the order, required a letter to be sent to the principal, stating the proceedings which were being taken. The defendant, Mary Rose Vibart, was the widow and executrix and one of the trustees under the will of Henry Vibart, deceased. By his will, dated in 1839, the testator bequeathed to the plaintiff Elizabeth Murray, Mary Rose Vibart, and William Rose Campbell, two sums of Bank Annuities, and other property, upon certain trusts, for the benefit of his children. The executrix paid all the testator's debts, and ascertained the residue of his personal estate; but neglected to transfer the stock into the names of the trustees. She had resided since 1840 at Boulogne. Numerous applications. were made to her upon the subject without effect; and, on the 12th of November 1844, a writ of distringas was served on the Bank of England by the plaintiff's solicitor, for the purpose of preventing a transfer of the capital or payment of the dividends. On the 27th of December 1844, the plaintiff's solicitor wrote a letter to Mrs. Vibart, referring to two letters dated on the 19th and 30th of November, which had been written to her by his partner, and to which no answer had been returned, and requesting (as had been previously done in the former letters) her authority to apply to the Bank of England for a transfer of the stock into the names of the trustees; and threatening that, in case she persisted in her refusal to authorize the transfer, a bill in Chancery would be filed against her to compel her to do so. On the 30th of December he received a letter from Mrs. Vibart's solicitor, dated the day previously, stating, among other things, that Mrs. Vi NEW SERIES, XIV.-CHANC. bart had handed over to him the letters she had received, and had instructed him to do whatever was necessary on her behalf, and that he was desirous of seeing the probate of the will. Various other letters passed betwixt the solicitors of the parties in relation to the stock, the probate of Mr. Vibart's will, the distringas and the manner of obtaining it; and, from the expressions used by Mrs. Vibart's solicitor throughout, the Court was satisfied that he acted in the matter as her confidential agent and adviser. After a fruitless attempt to prevail upon the plaintiff's solicitor to withdraw the distringas, Mrs. Vibart's solicitor applied to the Bank for a transfer of the stock and payment of the dividends, notwithstanding the distringas; and stated to the other solicitor that he had done this on behalf of Mrs. Vibart. Under the circumstances above stated the present bill was filed, and it prayed for an account of all monies belonging to the testator vested in English stocks; that the said Mary Rose Vibart should transfer to the plaintiff, to herself and William Rose Campbell, upon the trusts of the will, the aforesaid sums of stock; and that the defendant might be restrained from transferring the trust monies to any other person or persons, or for any other purpose. On an application by motion, on the 11th of January, the Vice Chancellor Knight Bruce granted the injunction prayed; and, with reference to the question of the service of the injunction and also of the subpoena to appear and answer the bill, he suggested that the case should be brought under the notice of the Lord Chancellor. Mr. James Anderson, in accordance with such suggestion, now moved, upon affidavits verifying the facts stated, that service of the subpoena for M. R. Vibart to appear and answer the bill, and also of the injunction granted by V. C. Knight Bruce on her solicitor, might be deemed good service upon her. He cited the cases of Hobhouse v. Courtney, 12 Sim. 140; 2 F Hyde v. Foster, 1 Dick. 102; s. c. 10 Law J. Rep. (N.s.) Chanc. 382, n. Kinder v. Forbes, 2 Beav. 503; s. c. 9 Law J. Rep. (N.s.) Chanc. 288. Weymouth v. Lambert, 3 Beav. 333. Webb v. Salmon, 3 Hare, 251. The LORD CHANCELLOR said he would look into the case and speak to it next morning. Before the Court could grant such a motion as this, it must be thoroughly satisfied that authority was given to the solicitor to act in the matter. In cases of this description, there was always danger of the solicitors of both parties playing into each other's hands, and coming to understandings more for their own benefit than their clients'. He felt it his duty to guard against such an occurrence. He thought the best course under the circumstances would be, for the plaintiff to write to the defendant that evening a letter, stating in substance the proceedings which had been adopted, that she might be fully apprised of what was going on. Mr. J. Anderson undertook, on the part of the plaintiff, that a letter such as his Lordship recommended should be written. Will-Construction-Power of Sale. A testator by his will directed that his debts should be paid out of his estate and effects; he then gave all his real and personal estate to his wife for her life, and after her decease directed that all his real and personal estate should be sold, and the produce divided among the persons named in the will. He then directed that the receipts of his executrix and executor should be good discharges to the purchasers of his real and personal estate, and appointed his wife and G. to be the executrix and executor of his will. In a suit to enforce the specific performance of a contract entered into between the executrix and executor and a purchaser of a part of the real estate of the testator,— Held, that the executrix and executor, on proof that the personal estate of the testator was not sufficient for the payment of his debts, had power to enter into the contract, but that the title ought not to be forced on the purchaser without the concurrence of the heir of the testator. Whether the executrix and executor had a legal power of sale-quære. This was a suit by vendors to enforce the specific performance of a contract for sale of land. Joseph Lloyd made his will, dated the 4th of November 1843, which was, in part, as follows:-"I direct all my just debts, funeral and testamentary charges and expenses to be paid out of my estate and effects; and subject thereto, and also to the payment of 51. to my executor hereinafter named, for his trouble in taking upon him such office, I give and bequeath all my freehold, copyhold, leasehold, personal, and other my real and personal estate whatsoever and wheresoever, whether in possession, reversion, remainder, or expectancy, unto my dear wife Susanna during the term of her natural life, for her sole and separate use, and free from the debts and controul of any future husband she may intermarry with; and from and after her decease I direct all my real and personal estate and effects to be sold, either by private sale or public auction, for the best price that can be got for the same, and after payment of the expenses of such sale and incident thereto, I direct the produce thereof to be divided and paid in the following manner." The testator then directed a division among the children of several persons named in the will. The will then proceeded as follows: "And I hereby direct that any purchaser or purchasers of the whole or any part of my real or personal estate shall not be liable to see to the application of the purchase-money, and that the receipt and receipts of my executor, his heirs, executors, administrators and assigns, or other person or persons acting in the administration of this my will, shall be a sufficient discharge or sufficient discharges to the purchasers of the whole or any part of the real or personal estate directed to be sold under this my will." The will then contained a power for his executrix and executor to reimburse themselves the costs and expenses to which they might be put. The testator then appointed Susanna, his wife, and William Gosling, to be his executrix and executor. The testator died soon after the date of his will, and the will was proved by the plaintiffs, Mrs. Lloyd and Mr. Gosling, who put up a piece of freehold land at Battersea, part of the real estate of the testator, for sale by auction, and the defendant became the purchaser of it. Mrs. Lloyd offered to disclaim as to her life estate and to release her dower, and Mrs. Lloyd and Mr. Gosling apprised the purchaser that the personal estate of the testator was insufficient for the payment of his debts, at the date of the contract. The purchaser having declined to complete his contract, a bill was filed against him, by Mrs. Lloyd and Mr. Gosling, to enforce a specific performance of it. The only question between the parties was, whether the plaintiffs could, under the will and the allegation as to the deficiency of the personal estate, convey the estate to the purchaser, and give him a discharge for his purchase-money. Mr. Wigram and Mr. Hardy, for the plaintiffs, contended, that the plaintiffs had a power of sale, and that, under this power and an allegation on their part that the personal estate of the testator at the date of the contract was insufficient for the payment of the debts, they could of themselves effectually convey the estate to the defendant, and give him a discharge for his purchasemoney. Mr. Teed and Mr. Goldsmith, for the defendant, contended, that the plaintiffs could not make a title to the land. The following cases were cited :- Ball v. Harris, 4 Myl. & Cr. 264; s. c. 8 Law J. Rep. (N.S.) Chanc. 114. Eland v. Eland, 4 Myl. & Cr. 421; s. c. 8 Law J. Rep. (N.s.) Chanc. 289. Page v. Adam, 4 Beav. 269; s. c. 10 Law J. Rep. (N.S.) Chanc. 407. Forbes v. Peacock, 11 Sim. 152; s. c. 9 Law J. Rep. (N.S.) Chanc. 367, s. c. on a Case sent to the Court of Exchequer, 12 Mee. & Wels. 630; 12 Law J. Rep. (N.s.) Exch. 460, s.c. on the Master's Report, 12 Sim. 528; 13 Law J. Rep. (N.s.) Chanc. 46. KNIGHT BRUCE, V.C. said, that he gave no opinion whether the mere charge of debts on the real estate would or would not confer on the executors a power of sale at law or in equity. Looking, however, at this will, he thought that under the terms of it there was a manifest intention, on the part of the testator, that the estate should be sold for the payment of debts. He thought, also, that the heir was to have nothing to do with the sale, and that the executors were to have the conduct of it. He thought that the plaintiffs, undertaking to prove that there were debts at the date of the contract, had a power to enter into the contract for sale. He should purposely avoid saying, whether or not the concurrence of the heir was necessary, but that he thought the plaintiffs could compel his concurrence. The following order was made : The plaintiffs undertaking to prove that there were debts of the testator owing and unpaid at the date of the contract, declare, that the executors had full power to enter into the contract in question; without prejudice to any question, whether the concurrence of the heir-at-law will not be necessary to convey the legal estate. Cause to stand over for the plaintiffs to produce such proof of debts. Reserve further directions and costs. The required proof having been given, but there being a difficulty in finding the heir of the testator, the cause was brought on again for the purpose of deciding, whether the heir was a necessary party to concur in the sale. The same authorities were cited. KNIGHT BRUCE, V.C.-In this will, there is an express power of sale, and but one, and that not to arise until after the death of the testator's wife. She is alive. I decline deciding against a purchaser, without binding myself as to the point abstractedly, that, whether the wife disclaims or does not disclaim, and whether she has or has not dis claimed, this power of sale is now exercised. It must be taken that the express power is not exercised. In a There is also an implied power. manner, in a sense, in some way, there does exist a power of sale; there being debts, which fact is proved. There is in this particular will an intention exhibited, that a sale should be made by the executors or one of them, and not otherwise. The next question is, whether a legal power is so created in them as that the heir-at-law is not a necessary party. I think that question is one of too great nicety to decide against the purchaser in a suit for specific performance. I decline to compel the purchaser to take the title without the heir joining. The following order was made :— Declare-That the plaintiffs had right and power to enter into the contract, there being a charge of debts by will and debts owing at the date of the contract; but, without determining whether a conveyance from the heir-at-law, if there be one, is or is not necessary, declare, that the title be not forced on a purchaser without the concurrence of the heir, if there be one. And, the defendant admitting that the testator was seised in fee at the date of his will and death, refer it to the Master to inquire who was the heir-at-law of the testator. No costs on either side up to the present time. Reserve further directions and costs. Vendor and Purchaser-Specific Performance- -Title-Creditors' Suit-Abstract. In the year 1809, R. devised his real estate, subject to the payment of his debts, upon certain trusts, and in 1813, a bill was filed on behalf of the testator's creditors, against the executors and trustees of his will, seeking payment of his debts. Much irregularity occurred in the conduct of that suit, after a decree had been made therein; and the suit became abated in the year 1838 by the death of two material parties. The trustees of the devised estates sold the same under very stringent conditions of sale to W, and in the abstract of title the creditors' suit was neither mentioned nor referred to; but the existence of it became known to W, the purchaser, whereupon a separate report therein was obtained from the Master, stating the amount of the testator's debts remaining unpaid, but such report was never properly confirmed. On a reference to the Master, in a suit instituted against the purchaser W. for specific performance, the Master reported against the title, which was confirmed by the Court; the circumstances, in the opinion of the Court, not justifying a further inquiry, or the further detention of the purchaser, to enable the plaintiff to make a better title. In this case the Master found, on a reference directed to him as to title, that a good title could not be made to the estate, the subject-matter of the suit. The plaintiff, Fraser, by virtue of certain indentures, dated in the year 1839, had power given him as a trustee to sell the real estate of the testator, John Revett, which was charged with the payment of his debts. A bill having been filed in 1813 by Jessup and other creditors of John Revett, who died in the year 1809, for payment of their debts, a decree was made therein in the year 1817, in the usual form, directing an accouut to be taken of the testator's estate and effects, debts, &c. The Master, in the month of February 1844, made a separate report in that suit of the testator's debts, which amounted to 1,0521. The defendant Wood, the purchaser of the testator's estate, and against whom the present bill was filed for a specific performance of his contract for purchase of the estate, dated the 12th of May 1842, objected (inter alia) that the existence of the decree in the creditors' suit of Jessup v. Revett prevented a good title being made to the estate. From the year 1817 to 1844 no claim was made in the creditors' suit of any debt, except those mentioned in the Master's separate report. On the 18th of May 1842 the abstracts of title were delivered, and the only question turned on abstract No. 7, in which it was stated that the testator, John Revett, by his will, gave to Catherine, his wife, a certain mansion house, and all other his real and copyhold estates, in Suffolk or elsewhere, and also his personal estate, for her life, subject to the payment of his just debts, and the expenses of proving his will; and in the will was contained a power to sell all |