*THE LORD JUSTICE KNIGHT BRUCE.-The decree in this *31 cause made in the year 1854 was not made adversely. The Court that in form pronounced it seems not to have been asked to exercise any judgment on the subject, and the decree remains wholly unquestioned. It directed certain inquiries; of these a portion and only a portion has been answered by the certificate now before us, a certificate which was approved by the ViceChancellor WooD, and is to this effect: [His Lordship read it.]

The appeal motion of which we have now to dispose is directed against an order of the Vice-Chancellor declining to vary this certificate, and therefore against the certificate, but substantially against so much of it only as relates to the domicile of the late Mr. Matthews; the appellant contending that Mr. Matthews was in and throughout the year 1838, and thenceforth to his death, domiciled in England; the opposing respondents that in or after the year 1839 he became domiciled in Tuscany, from the year 1843 or some earlier time, continually until his death, which happened in the year 1850.

I doubt whether the inquiry as to domicile should have been contained in the decree, considering the state of circumstances that existed when the decree was made, a state of circumstances which seems still existing. We, however, perhaps correctly, perhaps incorrectly, thought it not incumbent on us to refuse to hear the motion argued. It was argued, and very well argued, before us. We have considered the matter, and now have, whether usefully or uselessly, to state our opinions upon it. Indeed my learned brother has already stated his.

The appeal having thus been heard by the Lords Justices without the Lord Chancellor, and the opinion of* one of the *32 Lords Justices who heard it being for affirming the order under appeal, it will necessarily stand affirmed; and it appearing to both that the costs of the appeal on each side should be costs in the cause, they will be so; but whether (the probate before us being as it is) the orders will be efficacious beyond the matter of costs is perhaps an arguable point, one, however, not for decision at present.

Nor do I think it incumbent on me to add more than two observations: one, that, after attentively reading the evidence in the cause, I am perfectly satisfied that Mr. Matthews's English domicile of origin (whether during the whole of his life before the year

1838 it had continued or not continued uninterruptedly his domicile) was his domicile in and throughout that year; the other, that, the whole of the evidence being considered, it does not appear to me to be proved that at any time after the year 1838 Mr. Matthews acquired a Tuscan domicile, or relinquished or lost his English domicile, or intended to acquire a Tuscan domicile, or to relinquish or lose his English domicile.

It is not, however, likely that I should in any instance, and certainly I do not in the present instance, feel confident as to the accuracy of a conclusion differing from the concurrent opinions of my learned brother and the Vice-Chancellor WOOD.

* 33

* DAVIS v. THE EARL OF DYSART.

1856. January 25, 26. Before the LORDS JUSTICES.

On the taxation of the plaintiff's bill of costs (in a suit in which a bill for the production of title-deeds had been dismissed) the Master allowed charges for the settlement of the answer by the defendant's junior equity counsel and by his conveyancing counsel, who was familiar with the defendant's title, and also allowed a charge for an abstract of title laid before the junior equity counsel for the purpose of preparing the answer, but which abstract did not appear to have been prepared entirely for that purpose: Held, that these allowances ought not to have been made.'

THIS was an appeal from the decision of the Master of the Rolls (reported in the twenty-first volume of Mr. Beavan's Reports (a) on appeal from the taxing master, who had allowed a charge for the preparation of an abstract of title as instructions for the answer, and had also allowed the fees paid to two junior counsel (one being a conveyancer) for settling the answer. The Master of the Rolls had disallowed these charges. The facts of the case are fully stated in Mr. Beavan's report.

The defendant's solicitor stated, viva voce, on the appeal, in answer to questions from the Court, that it could not be ascertained how much of the abstract in question had been actually prepared before the institution of the suit.

(a) Page 124.

See 2 Dan. Ch. Pr. (4th Am. ed.) 1440, n. (2).

Mr. Lloyd and Mr. Tripp, in support of the appeal. — Under the 120th Order of May, 1845, the costs of preparing the abstract ought to have been allowed. If the usual charge for copies of it had been made they would have been allowed, and would have amounted to more with regard to the costs of the conveyancing counsel; the title of the defendant was voluminous and complicated, and it was necessary or was the least expensive course for the conveyancer, who had been in the habit of advising on it, to assist in preparing the answer, for which otherwise much longer and more expensive instructions must have been given * and much more time and labour would have been requi-* 34

site.

Mr. Roundell Palmer and Mr. Jessel, for the respondent. The Order of 1845 does not apply to abstracts, which require skill and care in their preparation, and are more expensive than mere copying; moreover, it does not appear that the abstract was made for the purposes of the suit. As to the answer being settled by two counsel, that is never considered necessary and cannot be allowed in costs.

They referred to Attorney-General v. Munro. (a)

Mr. Tripp, in reply.

THE LORD JUSTICE KNIGHT BRUCE. What we might have thought it right to do if the abstract had been made after the commencement of the suit and solely for the purpose of the suit, or if there had been evidence pointing out what portion, if any, of the abstract had been so made, it is not necessary to say, for it is clear that some progress had been made in the composition of the abstract before the suit, and the defendant's solicitor has not furnished the Court with any evidence to show what portion of it, if any, had been composed solely for the purposes of the suit. The Master of the Rolls having in his examination of the bill allowed the defendant for one copy of the whole abstract, I think it impossible in this state of the evidence to depart from his Honor's decision.

(a) 1 Mac. & G. 213.

Considerations not dissimilar to these apply to the assist*35 ance given by Mr. Measure, the conveyancing counsel,

*

to

the defendant. It is plain that Mr. Measure had advised on the title before the suit, and therefore, when the suit commenced, the defendant had the advantage of that advice. It is unnecessary to say how the case would have stood if that advice and opinion had not been given before the suit was commenced. The state of things being as it was, looking at the nature of the demand made by the suit, I cannot but think that the assistance of Mr. Tripp in framing and settling the answer was by itself amply sufficient, and that it would not be safe to depart from the course taken by the Master of the Rolls.

Having regard, however, to the subject of the disallowance and to the apparent hardship on the defendant, I think that we may dismiss the appeal without costs.

THE LORD JUSTICE TURNER. -I am also of opinion that we ought not to disturb the decision of the Master of the Rolls. The questions are two, whether the defendant was entitled to the costs of preparing the abstract, and whether he was entitled to the costs of two counsel for the preparation of the answer. The 120th Order of May, 1845, was framed with a view to enable the Court to give a defendant the costs incurred in his defence. The abstract here in question, however, was not prepared for the purpose of the defence. It is consequently not necessary to give an opinion, whether the costs of preparing an abstract could in any case be allowed under the 120th Order. I doubt, however, whether any thing could be allowed under it except as costs of copies. As to the other point I agree also with my learned brother, that the costs of the conveyancing counsel could not be allowed, an experienced equity draftsman was perfectly competent to settle an answer in such a case without the assistance of a conveyancer. The appeal must be dismissed, but without costs.

[ 28 ]

* BULKELEY v. HOPE.

1856. January 14, 15, 31. Before the LORDS Justices.

* 36

Where the facts and questions stated on a special case were such as did not enable the Court to determine the rights of the parties: Held, that the proper course was to discharge the order made below on the case without prejudice to any question.

It is not a proper use of the Act of Parliament to come to the Court for its opinion on a partial or garbled statement of facts.

THIS was an appeal from the decision of Vice-Chancellor Wood, reported in the 1st volume of Messrs. Kay & Johnson's Reports. (a) The course which the case took on the appeal is sufficiently explained by the judgments.

Mr. Karslake was for the appellants.

Mr. Elmsley and Mr. Giffard, for the respondents.

Judgment reserved.

THE LORD JUSTICE KNIGHT BRUCE. Upon the facts stated in this special case it appears to me at least very probable that neither of the purchases before us, whether completed or not completed, is binding in equity on either side, that is to say, it is, in my judgment, likely in a high degree, if not certain, that none of the purchasers can in equity insist on having any part of the purchased lands discharged or exonerated from land tax on the ground that he contracted for the purchase of property free from land tax; and that, on the other hand, the vendors cannot in equity insist upon holding any of the purchasers to his purchase as a purchase of land subject to land tax.

*In such a state of things it does not appear to me safe * 37 or right that the special case, framed as it is, and propounding only the questions that it does propound, should be answered at all. I am of opinion that the order already made on the case

(a) Page 482.