V. wife might possess could only be enforceable in equity; 1866. but after his death she can sue at law. If marriage FITZGERALD is to have the effect contended for, why does it not discharge the right in equity? He referred to Morris v. Moss (a), and Woodward v. Woodward (b). Darley in support of the plea. The right of action is not suspended, but extinguished. The covenant once gone is gone altogether, for the effect of the marriage upon the covenant is to release it entirely; Co. Litt. (c). In Cannel v. Buckle (d), where the wife gave her husband a bond in consideration of the expected marriage, binding herself in that event to convey her real estates to him in fee simple, the bond was considered extinguished and released at law by the marriage, although it wassupported in equity. And the same is assumed to be the law in Acton v. Peirce (e). This is a covenant to pay from six months to six months, during the life of the plaintiff, and is not at all like the case of a covenant to pay a sum of money at the death of the covenantor, as was the case in Melbourn v. Ewart (f), Clark v. Thompson (g), and Furson v. Penton (h). All these cases, and others which might be cited, were cases of bonds given, or covenants entered into in contemplation of marriage. But this is not the case here. In Cage v. Acton, and Melbourn v. Ewart, the bond was in contemplation of marriage, and to provide for the intended. wife after the husband's death, and could not come into effect until after the death of the intended husband. Here theconsideration for the covenant was the plaintiff's residing in Sydney; not marrying without the covenantor's consent; and not cohabiting with any man; and it is therefore in contemplation of marriage. So in those cases there could be no payment during the husband's lifetime, and therefore he could not release the debt. But here the payments were to commence at once, and could be released. The covenant is not in contemplation, but (a) 25 L. J. Ch. 194. (c) 264 b. (e) 2 Vern. 480. (g) Cr. Jac. 571. (b) 9 Jur. N.S. S82. FITZGERALD. 1866. rather in restraint of marriage (a). He referred to FITZGERALD Bacon's Abridgment (b)-Baron and Feme (E). V. FITZGERALD. STEPHEN, C.J. I am of opinion that the plaintiff is entitled to judgment. For the testator, although he would seem not to have contemplated the event of their survivorship, nor perhaps his intermarriage with the plaintiff, yet distinctly covenanted that she should during her life receive (but not by anticipation) every half year the annuity in question. Any portion of it, therefore, which should accrue after his death was not releasable by the husband, for he could have no greater right than his wife brought to him; and if she could not anticipate, neither could he. But independently of this, such accruer was an event that never could by possibility happen during the coverture, and therefore the plaintiff's right to it was not extinguished. It was not even "suspended," for the right to receive it never arose, nor could arise till the husband's death. If the instrument had been a bond, it is possible that a distinction might be drawn, though on this point we give no opinion. The other Judges concurred. Judgment for the plaintiff. (a) See Lowe v. Peers, 4 Burr. 2225. (b) 1 Vol., p. 707. 1867. March 8. DAR Ex parte CASTLE. Court the ARLEY moved for a review of taxation by the In proceedings Prothonotary, the latter having disallowed certain in the District charges for instructions for brief, and for preparing and copying brief, &c. The action was in the District Court, and the costs had been disallowed on taxation of costs as between attorney and client. It is submitted that an attorney ought to be allowed, as against his client, these charges, beyond the amounts specified in the District Court scale of costs. In re Keighley (a) and R. v. Toby (b) were cited. [Stephen, C.J., referred to Ex parte O'Toole (c).] Butler showed cause. (a) 19 L.J.C.P. 167. (b) 12 Q.B. 697. (c) Ex parte O'TOOLE.--April 16, 1861.-Motion for review of taxation. There had been an order for taxation of the costs of Moffatt, an attorney, by the Prothonotary of this Court. But the business had been wholly done in matters relating to the District Court, in or about suitors in such Court, and he had taxed them as between attorney and client, and on the Supreme Court scale. But the Prothonotary stated that he had taxed every item according to the District Court scale, in every instance provided for by the scale. Stephen contra. The reference and taxation are right. There is no power in the District Registrar to tax, except as between party and party; and sections 74 and 75 apply only to things done strictly in the suit; In re Toby*, In re Clippertont, which latter is by the former case overruled. Per curiam. For all proceedings or business in the cause that is in ⚫the Court, or which can be reasonably so deemed, the attorney can only be allowed such charges as are specified in the District Court scale. And for any such proceeding or business, for which the scale may contain no charge, he can charge nothing. So far, the section applies alike to questions of taxation between attorney and client as between party and party. But on the authority of the case cited, we think that the Prothonotary may allow an attorney his costs for and in respect of all business done in advising or assisting the client with reference to the cause. The Registrar of a District Court has no power to tax costs, except as between party and party. The Prothonotary, therefore, must review his taxation in conformity with this decision, with liberty to report specially on any items respecting which he shall entertain doubt whether they came within the terms "business or proceeding in the cause in the Court." April 26.-The report of the Prothonotary having come in, the Court held, after argument, that instructions for plaint, and advising with counsel thereon, and instructions for and drawing briefs, were not matters in the cause, but in reference to the cause for the assistance of the client, and should be allowed. But not so fees paid to counsel for appearing in the Court in any stage of the cause, and a refresher to counsel falls within the rule. 12 Q.B. 697. † Id. 687. Registrar has no power to tax costs, except as between party and party; and on taxation by him, the only costs that can be be reasonably ney his costs, as between attorney and client, for and in respect of all business done in advising or assisting the client with reference to the cause. 1867. Ex parte STEPHEN, C.J. An attorney is entitled to be paid a reasonable amount for his labour, unless it is shown that he is deprived of such a right, either by the legislature or his own agreement. In Ex parte O'Toole it was decided that for all matters in the cause in the Court, the attorney could not recover more than the amount specified in the scale; but that for matters in reference to the cause and out of Court, the attorney was entitled to make a reasonable charge. This decision has been acted on ever since, and appears to me to be right. It is clear that matter may be properly inserted in a brief for the assistance of counsel; as for instance, the character of the parties, the terms on which they have been, &c., the expense of which cannot be fairly thrown on the other side. I am of opinion, therefore, that the attorney is entitled to charge such claims against his client without reference to the District Court scale of costs. The application, therefore, must be be granted, but without costs, as it is an attorney advocating his own interests. HARGRAVE, J. I am of the same opinion. The decision in O'Toole's case is to be supported on public grounds. The client acquainted with the Act and the scale of costs knows what he will have to pay. There is not the same uncertainty as in the Supreme Court. But for items not mentioned in the scale, the client ought to pay a reasonable amount-the right of the attorney to be paid such amount not having been taken away. CHEEKE, J., concurred. Rule absolute (a). (a) See Marshall on Costs 237. BRUNKER against BRECKENRIDGE and another (a). DECLARATION on an overdue promissory note for £252 10s., dated the 25th August, 1866, and payable one month after date, made by the defendant in favor of W. H. Whyte or order, and indorsed by Whyte to the plaintiff, and not paid. 1867. March 19. Action by in dorsee of a promissory note made by the defendants in favor of W. or order, and indorsed by W. to the Plea, plaintiff. that after the granting a rule nisi for the compul sory seques estate, certain profits became due and payable from the defendants to the insolvent estate of W., for and in respect of the carriage of goods in a vessel of W.'s, Seventh plea-as to £43 6s. 8d., parcel (b) of the amount of the said promissory note-that after the granting of the rule nisi in the first plea mentioned, certain freight became due and payable from the defendants to the insolvent estate of the said W. H. Whyte, tration of W.'s for and in respect of the carriage of goods in a certain vessel of the said W. H. Whyte for the defendants; and the defendant paid the said freight to the said J. P. Mackenzie, as the official assignee of the said insolvent estate, as in the said first plea mentioned. Averment, that the said W. H. Whyte refused to deliver the said goods to the defendants, unless the defendants should pay to him the amount of the said freight-and that by reason of such refusal on the part of the said W. H. Whyte, he lost and deprived himself of the use of the said vessel for a certain period; and that afterwards, the said W. H. Whyte refused to deliver the said goods to the defendants, unless the defendants would give to him their promissory note for the amount of the said freight, together with damages for the said loss so occasioned as aforesaid, by the detention of the said vessel, owing to the refusal of the said W. H. Whyte to deliver the said goods as aforesaid; and in order to obtain possession of their said goods, the defendants gave to the said W. H. Whyte the promissory note (being the promissory note for the defendants; that the defendants paid the said freight to the official assignee of W.'s estate; refused to deliver the goods to the defen and that W. dants, unless they should pay him the freight; and that by reason of such refusal, W. deprived himself of the use of the vessel for a certain period; and that afterwards, W. refused to deliver the goods to the defendants, unless they gave him their promissory note for the amount of freight and damages caused by the detention of the vessel. The plea then alleged, that in order to obtain possession of the goods, the defendants gave W. the promissory note sued on; and that there was never, except as aforesaid, any value or consideration for the making of the note, and that the plaintiff took the note with notice of the premises. Held, on demurrer, a good answer, as the promissory note had been given for a claim by W., which was utterly unfounded, although made bona fide. (a) Before Stephen, C.J., Cheeke, J., and Faucett, J. (b) There were other similar pleas to other parcels of the amount of the note. |