I now come to consider the questions raised by the plaintiff's motion to review-viz., as to the power of the Master, under the decree of reference, to tax the mortgagees their costs of suit, and as to his having taxed these costs as between solicitor and client. Upon the first question, I am clearly of opinion that the original decree of the Primary Judge, although very concisely expressed, was intended by the parties to express, and does in terms sufficiently express, all the mortgagees' costs;" not only the costs specially secured by the mortgage instruments, but also the costs of suit, where not taken away by the decree of the full Court. 66 It certainly would have been much better if the decree of reference had been drawn in accordance with the English forms in "Seton" (a), so as to expressly include both these costs; but the words used in the decree are perfectly general in themselves-are sufficiently wide to include all such costs; and the draft minutes show that the parties perfectly understood the alteration to include the costs of suit. This interpretation of the decree of reference is also quite in accordance with the established rights of mortgagees, properly conducting themselves in redemption suits. The first ground of the plaintiff's motion to review must therefore be disallowed. Upon the second point of the motion-to review-I am of opinion that the Master was in error in taxing these costs as between solicitor and client. There are no words in the decrees before him directing such taxation to be as between solicitor and client, and the Master's duty is clearly never to tax as between solicitor and client unless specially so directed by the Court; nor are mortgagees ever entitled to costs as between solicitor and client. (a) The forms given in Seton are the following:- "Let the following accounts be taken, viz. 1. An account of what is due to the defendant for principal and interest on his mortgage in the pleadings mentioned and for his costs of this suit; such costs to be taxed, &c." "Let an account be taken of what on the day of was due to the defendants for principal and interest in respect of their mortgage, security, &c., and for such (if any) costs, charges, and expenses as are secured thereby, or as they are entitled to under their said mortgage security; such costs, charges, and expenses to be taxed, &c. And tax the defendants costs of suit and amount to be added.' See Seton on Decrees, by Harrison and Leoch (3rd ed., 461, 462), Rep. 1867. BROUGHTON V. RODD and others. 1867. V. The report must, therefore, go back to the Master, BROUGHTON accompanied with the above declaration in addition to the declarations I have already made upon the defendant's exceptions. I reserve costs of all parties on these exceptions, and on plaintiff's motion, till the Master's further report appears. RODD and others. On the petition of infant cestuis que trusts, preferred in a suit brought by one trustee execution of direction of yet come on reference was IN MACARTHUR against REGAN and another. N this suit, which was instituted by A. H. Macarthur, one of the executors and trustees of the will of James White, of Burrangong, in the Lachlan District, against his co-trustees and co-executors, W. Regan and E. Taylor, praying that the trusts of the said will might be carried into execution, and that accounts might be taken of the dealings of the defendants with the trust property, which they were charged the Court, and with having mal-administered and mismanaged in which had not various ways, a petition was presented by Sarah for hearing, a Regan and three other infants, cestui que trusts under directed to the the said will, by T. Musgrave, their step-father and next friend, praying that the said trustees-the plaintiff and defendants in the suit-should pay for the use of the petitioners, their proportion of the issues and profits of the trust estate, from time to time, as they should arise, into the hands of the said T. Musgrave, their stepfather, who was now supporting and maintaining them, and should also pay to him the aggregate of the petitioners proportion of the said issues and profits, already received by the said trustees, during the time he had been so supporting and maintaining them; and that the petitioners might have the benefit of the suit. Master to appoint a guardian, and to make enquiries as to the income of the infants, and the proper amount to be allowed for their maintenance. The petitioners stated that no part of the issues and profits of the trust property, in which they were interested, had been applied for their benefit since the testator's death in 1865-that in March of that year the petitioners mother intermarried with the said T. Musgrave, since which time the petitioners had been living 1867. MACARTHUR V. REGAN with their mother and step-father, and had been entirely supported by him out of his own individual means. Mr. Musgrave had been in occupation since 1865 of a public-house, part of the trust estate, but the annual and another. value of the property so occupied by him (and which he had considerably improved out of his own means) being only about £30, was far less than the proportion of the issues and profits which the petitioners were entitled to claim under the will, and which was required for their maintenance and support. The bill in this suit was filed in May and issue joined in December, 1866. Since that date the plaintiff had taken no further proceedings. Davis, for the petitioners, submitted that a husband is not bound to maintain his wife's children by a former husband; Tubb v. Harris (a), Cooper v. Martin (b), Billingsley v. Critchett (c); that, in cases like the present, maintenance will be allowed out of the children's. fortune, Douglas v. Andrews (d), Haley v. Bannister (e), Cavendish v. Mercer (f), Ainsworth v. Pratchett (g), 26 Vic., No. 12, sec. 61. As to allowance for past expenditure, he cited Ransom v. Burgess (h). A petition is the mode of application which should be adopted in this case, as there is a suit already in existence relating to the trust property, 2 Daniel Ch. Pr. (i), Ex parte Larkin (k), Ex parte Angell (1). In Fairman v. Green (m), the Court refused to make an order like that now asked for on petition, but no bill had then been filed in that case. The infants shares, according to the returns required by the Stamp Act, amounted to £1191. It is submitted that the prayer of the petition should be granted, and, if necessary, that a reference should be directed to the Master to ascertain the infants shares. Paterson for plaintiff in the suit. The plaintiff has no objection to the relief prayed if the Court thinks fit 1867. to grant it, but submits he is entitled to his costs of MACARTHUR appearing on this application, whether the petitioners are successful or not. REGAN and another. Gordon for defendant Taylor, and Owen for defendant Regan, submitted that it was impossible to make such an order as the petitioners asked for. There has been great delay in the proceedings of the suit, which in fact is practically abandoned. The defendants are in a position to move to dismiss the bill with costs. In such a case, or if the plaintiff should at once dismiss his own bill, how could the petitioners get the benefit of the suit as they pray. Again, the income of the property is not known, it may be considerable or it may be nothing, and the Court will not make an order for the payment of an indefinite sum. The petitioners should have filed a bill for the administration of the trust property. The PRIMARY JUDGE. I cannot make an order for the payment of a sum of money, but I see no objection to a reference. There must be first a preliminary reference for the appointment of a guardian of these infants, and Mr. Musgrave may be so appointed if the Master finds that he is a proper person for the office. There will also be a reference to the Master to ascertain the amount of the petitioners income, and to enquire as to the proper amount to be allowed for their maintenance. I make no order as to costs at present, but reserve the consideration of them until the coming in of the Master's report. AN INDEX TO THE PRINCIPAL MATTERS IN THE CASES AT COMMON LAW. ACCEPTANCE OF OFFICE must be alleged on motion for quo 259 ACTION. 1. An action in the Supreme Court will not lie on a 1 2. An action will not lie on a judgment recovered in a District ADMINISTRATION BOND. 253 146 See JUDGMENT, 1. Attorney General v. Buckland Held, that the contract was a contract for the sale and pur- The plaintiffs having delivered at the station only 1054: ALIGNMENT. See POLICE (TOWNS) ACT, 1. Ex parte Crozier 244 85 132 of affidavit in support of quo warranto refused. R. v. Smith 259 of petition of right by adding a count setting forth new A-6 244 |