Westfield v. Skipworth, 1 Phil. 278; s. c. 12 Law J. Rep. (N.S.) Chanc. 431.

The MASTER OF THE ROLLS.-By the 125th Order of May 1845 the costs were made costs in the original cause, unless the Court otherwise ordered. An order of course might be obtained in this Court, or an order might be made at the hearing in the other branch of the Court before the Judge who heard the cause, and he might consider both the merits and the costs, and determine the question ; but upon an order obtained in this Court the Judge had no power to look into the merits. It was argued that because the discovery sought was in aid of the defence to the original bill, the costs were costs in the original cause; there might be something to make it not merely an order of course, but that could not be considered here. The order sought to be discharged was obtained here as of course, upon a petition in which no allusion was made to the original cause; this was irregular, and it must be discharged.

than the mortgage debt:-Held, that the defendants were entitled to the difference in value between the term and the fee.

This was a foreclosure suit, instituted by the plaintiff, to whom an estate had been mortgaged for a term of 500 years, against the persons who were entitled to the estate under the will of the mortgagor, some of whom were infants. By the decree made at the hearing, the usual accounts were directed; and, by consent, there were also contained in it a reference to the Master to inquire whether it would be for the benefit of the infants that the property should be sold as an estate in fee, and a direction that, if he should find that a sale was beneficial, it should be made accordingly. The property was accordingly sold under the decree; but the purchase-money was less than the mortgage debt and interest. The cause now came on for further directions; the only question being as to the costs of the devisees.

Mr. Bates, for the plaintiff, asked that the whole of the purchase-money should be paid to the plaintiff.

Mr. H. Humphrys, for the defendants, contended that they ought to have costs, on the ground that the reversion, which had been included in the sale, was exclusively their property.

Mr. Bates, in reply, contended that this gave the defendants no title to costs, as the reversion of an estate expectant on a term of 500 years was in fact worth nothing. Mr. Malins, for the purchaser.

KNIGHT BRUCE, V. C. said that as the property must have sold better in the form in which it was sold than if it had been sold as a term, he thought that the defendants were entitled to something in that respect. He thought that the best course would be that a reasonable offer should be made by the plaintiff, and accepted by the defendants, by way of compromise. If this was not done, and the defendants insisted on their rights, there must be a reference to the Master to inquire what was the difference of the value.

A compromise was made according to the suggestion of his Honour.

By indenture, dated in October 1734, Mr. Belke conveyed a piece of land in Romney Marsh to five trustees in fee, upon certain trusts to be administered by the Society for Promoting Christian Knowledge; and directed that, whenever the trustees should be reduced to three, the land should be conveyed to the treasurers and secretaries for the time being of the Society.

In 1806, the land was conveyed to the persons who were then the treasurers and secretaries, of whom the Rev. J. H. Pott was the survivor. Mr. Pott died intestate, and the legal estate in the land passed to his heirs according to the custom of gavelkind.

A petition was now presented by the treasurers and secretaries of the Society for Promoting Christian Knowledge, stating the above circumstances, and that the land produced only 251. a year, and that the gavelkind heirs of Mr. Pott were numerous, and that some of them were infants and married women; and praying that, under these circumstances, the Master might appoint some person to convey the land at once to the petitioners.

By the 11 Geo. 4. & 1 Will. 4. c. 60. s. 23, it is enacted, that where all the persons in whom any land may have been vested in trust for any charity shall be dead, it shall be lawful for the Court of Chancery, on the petition of the persons or body administering such charity, to insert advertisements, &c. (see the order at end of the report); and if no person shall, &c., then it shall be lawful for the said Court to appoint any new trustees for

such charity; and such land may be conveyed to such new trustees by any person whom the said Court may direct.

Mr. W. P. Murray, for the petition, cited-In re Nightingale's Charity (1).

KNIGHT BRUCE, V.C. (after conferring with the Registrar), said that the petition was very reasonable, and that he would make the order as prayed.

The order made was as follows:-Let the Master order two successive advertisements to be published in the London Gazette and one or more of the newspapers circulating in the county of Kent, giving notice that the representatives of the Rev. J. H. Pott are within twentyeight days to appear, or give notice to the Master of their title, and prove their pedigree or other title as trustees; and, if no person shall appear, or give such a notice within such twenty-eight days, or the person who might appear or give such notice shall not, within thirty-one days after such notice or application prove his title to the satisfaction of such Master, then it is ordered that the Master do appoint a proper person to convey the piece of land to the petitioners mentioned as the treasurers and secretaries of the Society.

of the residue mortgaged his share, and was afterwards convicted of felony. This suit was instituted for the administration of the testator's estate, and the mortgagee of this share and the Attorney General were made defendants to it. The cause now came on for hearing for further directions. The terms of the decree were arranged between the parties; with the exception of one question, as to the costs of the Attorney General.

Mr. Russell, Mr. Prendergast, Mr. J. H. Palmer, Mr. Daniel, Mr. Malins, and Mr. Surrage, appeared for the different parties.

He

Mr. Wray, for the Attorney General, contended that he was entitled to his costs. The Attorney General is differently situated from a private individual. has no personal interest in the matter. He represents the public; and, if costs are not allowed him, the loss must fall on the public.

[KNIGHT BRUCE, V.C. asked if the Attorney General had disclaimed.]

Mr. Wray. The Attorney General never disclaims. There never was an instance, a precedent of the Attorney General having disclaimed. Such a thing was never known. The Attorney General appears in all cases where he is made a party.

This was a petition by the mortgagor under the 1 Will. 4. c. 60.

Lewes was trustee of some monies which he lent upon a mortgage in fee. The fact that he was a trustee was stated in the mortgage deed.

In 1847 Lewes was found lunatic by inquisition, and the mortgagor presented this petition, praying that the committee might be appointed to receive the mortgage money, and be directed to execute a reconveyance.

Mr. W. M. James appeared for the petitioner, and contended that the extra costs which he, as the mortgagor, must incur in consequence of the lunacy ought not to be borne by the petitioner.

Mr. R. W. Moore, for the parties beneficially interested in the mortgage money, insisted that they ought not to pay those

extra costs.

Mr. White, for the committee.

Ex parte Richards (1), In re Marrow (2), In re Townsend (3), Ex parte Clay (4), and King v. Smith (5) were cited.

The LORD CHANCELLOR said that after the decision of Lord Lyndhurst he thought the costs must be paid by the mortgagor, who executed the mortgage with notice that the mortgagee was only a trustee.

ment creating the power, but not raising any objections to the fitness of the persons nominated by the Master, were overruled.

A testator by his will gave the residue of his real and personal estate to three trustees (of whom his wife was one) in trust for his wife for life, with remainder in trust for certain other persons. The will contained the usual power of appointing new trustees, and vested the nomination and appointment of them in the continuing and acting trustees or trustee for the time being. The wife and one only of her cotrustees survived the testator. They acted in the execution of the trusts of the will, and appointed a new trustee in the room of the one who had died in the testator's lifetime. The wife subsequently married the defendant Reay, and survived her co-trustee appointed by the will. Reay became bankrupt, and applications were then made to Mrs. Reay, on behalf of those beneficially entitled in remainder to the trust property, to appoint certain persons to be trustees thereof. Mrs. Reay objected to the persons named, but offered to appoint others of her own nomination. A correspondence on the subject was continued between the parties from 1842 until 1847. Mrs. Reay still refusing under the circumstances to exercise the power, the present suit was instituted for the appointment of new trustees. The decree simply referred it to the Master to approve of two fit and proper persons (the trustee appointed since the death of the testator having declined to accept the trust) to act

as

The Attorney General v. Clack, 1 Beav. 467.

The Solicitor General, contrà, submitted that the Court had by its decree taken away the discretion vested in the continuing trustee. No objection had been made to the persons in favour of whom the Master had reported; and the present Lord Chancellor invariably held in the cases of trustees appointed under the Municipal Corporations Act, that unless unfitness in the persons nominated by the Master was shewn, the Court would not interfere with his discretion. He cited

Attorney General v. Dyson, 2 Sim. & Stu. 528; s. c. 4 Law J. Rep. Chanc. 164.

WIGRAM, V.C. said his impression was that it was usual to give special directions to the Master to appoint new trustees in cases similar to the present; and he was very far from saying that the Master ought not to have regarded the power given by the will. In the absence of any special directions, the case must be decided upon abstract principles. The question was, whether the Court could say that the appointment must be set aside, when no objection was taken to the fitness of the persons of whom the Master had approved. The decree made it the appointment of the Master, and his Honour could not say that it ought to be set aside. At the same time, it might be intimated that the Master had mentioned in a private note reasons for his selection of the persons named by the plaintiffs, which deserved the attention of the other parties.

Exceptions overruled, with costs.

480.

v. Robarts, 1 Jac. & Walk. 251.

Feb. 16.

MALINS v. GREENWAY.
CRADDOCK v. GREENWAY.
MALINS v. GREENWAY.

Costs-Application at Hearing-Petition after Decree-Trustee.

If the decree at the hearing make no provision for the costs of a trustee, the Court will not entertain any petition in respect of them at the hearing on further directions.

At the hearing of the above-mentioned causes on further directions, the executor of one of the defendants in the first-mentioned cause brought on a petition in respect of the said defendant's costs, for which no provision had been made at the hearing. The petition stated the following facts:-The bill in the said cause was filed in December 1839 by Mr. and Mrs. Malins and their children, on behalf of themselves and all other the creditors of one George Greenway, then deceased, against Jane Greenway, his executrix, and also against W. W. Greenway and James Williams Buchanan, trustees under a certain indenture, whereby the said G. Greenway had covenanted to pay to them the sum of 1,000l. and interest, in trust for the sole and separate use of Mrs. Malins. The bill stated that G. Greenway was in his lifetime co-partner with Buchanan, as solicitor, at Nuneaton, in Warwickshire; that large sums were due to them as such co-partners at the death of G. Greenway, two-thirds of which belonged to him; and that Buchanan had realized a considerable amount of such debts. It prayed an account against Jane Greenway and (if needful) against Buchanan; and that the said principal sum and interest might be raised out of the real and personal estate of G. Greenway. The cause was set down to be heard as a short cause, and the solicitors of the plaintiffs gave an undertaking not to ask for a decree against Buchanan. By the decree on the hearing, W. W. Greenway and Buchanan were declared to be entitled to the said sum of 1,000l., as trustees for the plaintiffs, and to be considered as specialty creditors for what might be found due in respect thereof; a reference to the Master to take the usual accounts was ordered; and further directions and costs were reserved. In consequence of the decree not authorizing the partnership accounts to be taken, the Master disallowed certain interrogatories to the extent of eighty folios, which had been exhibited in respect thereof. Buchanan also opposed a petition to confirm a report by the Master certifying that as against Buchanan, Jane Greenway, the executrix, was entitled to the proportion of the partnership assets mentioned in the bill. Buchanan died in December 1846, and his costs amounted to the sum of 150l. J. Greenway

died in the following month, having appointed Olive Aukhorne Greenway her executrix. The first-mentioned cause was revived against O. A. Greenway, but not against the petitioner, the executor of Buchanan, it being alleged that the bill had been originally filed against Buchanan solely in his capacity of trustee, and that his death had determined all his interest therein. In July 1848 the Master made his general report, finding the said sum of 1,000l. and interest to be due, and the testator's personal estate to consist of certain sums of stock, then standing to the credit of the first and thirdly mentioned causes. When the causes were set down to be heard on further directions, the petitioner's solicitor applied to the surviving trustee, and requested that care might be taken at the hearing to make provision for Buchanan's costs; but he received no reply. This petition was then presented, praying a reference to tax the costs, charges, and expenses of Buchanan in the first-mentioned cause, and of the petitioner's present application, and that provision might be made for the payment thereof out of the said stock then standing to the credit of the said causes, or by such persons, &c. as the Court should direct.

Mr. Bacon and Mr. J. H. Taylor, in support of the petition, submitted that the general rule of the Court not to grant the prayer of such a petition as the present at the hearing on further directions, was not inflexible. Buchanan was a trustee, and from the special circumstances of his case he had been compelled to defend himself separately from his co-trustee. The present application was not in the nature of a bill of revivor for costs.

WIGRAM, V.C. (without hearing any of the counsel in the several causes,) said that where the decree at the hearing made no provision for the costs, trustees, as well as any one else, would lose them. Trustees had no lien for their costs on the fund in court. The practice on this point was well established, and his Honour would not make a precedent to the contrary.

Petition dismissed, with costs.