Bew v Bew
| Jurisdiction | England & Wales |
| Year | 1899 |
| Date | 1899 |
| Court | Court of Appeal |
Practice - Costs - Appeal as to - Trustee - “Costs, Charges and Expenses” - Discretion of Judge - Leave to Appeal -
Where costs are in the discretion of the judge, the Court of Appeal will assume that he has exercised his discretion as to them and will not entertain an appeal, unless it is satisfied that he has not exercised his discretion but has applied some rule which he considered as excluding it.
An appeal from an order for payment of “costs, charges and expenses” will not lie as to “costs” only, if the order is right as to “charges and expenses.”
THIS was an action by a husband against his wife to establish as against her a trust in his favour of a sum of 300l. The plaintiff alleged that in September, 1897, he being engaged to be married to the defendant, then Fanny Walker, widow, he lent her the sum of 300l. to be advanced, together with a sum of 300l. of his own, to a friend of his named Moss, on mortgage of certain freehold premises belonging to Moss; and that it was arranged that the mortgage for the whole 600l. should be taken in the name of the defendant alone, which was accordingly done by a mortgage dated September 6, 1897. The parties married a few days after the mortgage, but separated after a short period. In December, 1897, the defendant called in and received payment of the whole mortgage debt of 600l., but refused to pay 300l. of it to the plaintiff, alleging that the 300l. was a gift made by him as an intended provision for her prior to the marriage. The plaintiff then brought this action claiming a declaration that the defendant was a trustee of the moneys secured by the mortgage, as to 300l. part thereof, and interest thereon, for the plaintiff; and alternatively, that 300l., part of the moneys secured by the mortgage, was money lent by him to the defendant for the purposes of such mortgage. Under an order made in the action by Stirling J., 300l. was paid into court by the defendant.
During the progress of the action the defendant died, and the action was revived against her executors.
The trial took place on December 8, 1898, before Kekewich J., who made a declaration that the late defendant, the wife, had been trustee for the plaintiff of the 300l. in question, with interest, and he directed taxation of “the costs of the defendants of this action, including the costs, charges and expenses of the late defendant Fanny Bew as trustee as between solicitor and client.” Then the payment schedule directed that such costs, and costs, charges and expenses, when so taxed, should be raised and paid out of the fund in court, and that the residue of the fund should be paid out to the plaintiff. In giving judgment the learned judge said that the plaintiff had been careless in advancing the money, and that he did not see his way to depriving the wife (and consequently her estate) of her costs, charges and expenses as trustee, though she had denied the trusts.
It was said that the defendants' costs and the trustees' costs, charges and expenses would nearly exhaust the fund.
The plaintiff appealed from so much of the judgment “as directed that the defendants were entitled as trustees to their costs of the action as between solicitor and client, including therein any costs, charges and expenses properly incurred by them as such trustees beyond the costs of the action, out of the money paid into court,” and asked that the defendants might be ordered to pay the plaintiff the costs of the action and of the appeal.
No leave to appeal had been given.
The appeal was heard on July 29, 1899.
Warrington, Q.C., and Buckmaster, for the plaintiff. The question is as to the effect of s. 49 of the Judicature Act, 1873 (36 & 37 Vict. c. 66), and Order LXV., r. 1, of the Rules of the Supreme Court, 1883. Sect. 49 says that, “No order made by the High Court of Justice or...
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