application is made on the *ground of special circumstances, after the lapse of the prescribed time, the circumstances must be such as to afford a reasonable excuse for not applying sooner, not circumstances of which the client could reasonably have availed himself before. I see another great objection to the taxation, which is this: It is a well-known rule in courts of common law, that after an action has been brought, and there is an application to tax, the costs of taxation are costs in the cause. The rule under the Act, however, is, that if upon taxation more than one-sixth is struck off, the costs would fall on the respondent. I think that a person having failed in a proceeding in which he would have had to pay the costs of taxation, should not be at liberty to take another proceeding by way of appeal, in which, if successful in taxing off one-sixth of the costs, he would throw the costs of taxation on his opponent. I concur in thinking that the order at the Rolls must be reversed, and that the petition must be dismissed with costs. THE LORD JUSTICE KNIGHT BRUCE: I wish to add, that I do not mean to intimate a different opinion upon the effect of the 37th section of the Act, from that which has been expressed by my learned brother. I merely abstain from giving any opinion upon the point. In re BARNARD. [365] HAMER'S DEVISEES' CASE. (IN RE ST. GEORGE'S STEAM PACKET COMPANY.) (2 D. M. & G. 366–374; S. C. 21 L. J. Ch. 832; 16 Jur. 555; 19 L. T. O. S. 223.) A testator devised and bequeathed all his real and personal estate, the latter consisting of, among other things, shares in a joint-stock Company, to his widow for life, and after her death, to his daughter absolutely; and he appointed them executrixes. The widow and daughter, as executrixes, received the dividends on the shares for several years. After the death of the widow, the Company was wound up under the Winding-up Acts: Held, that the daughter was rightly placed on the list of contributories in respect of her being devisee. The Act 3 & 4 Will. IV. c. 104, charges the real estate of any person dying seised of such estate, not only with his debts of every description actually due at his death, but also with all liabilities which may result out of obligations entered into by him during his life (1). THIS was an appeal motion on behalf of the official manager of the [St. George's Steam Packet] Company, from an order of the ViceChancellor KNIGHT BRUCE, Overruling the judgment of the Master, (1) Price v. Price (1887) 35 Ch. D. 297, 56 L. J. Ch. 330, 56 L. T. 843, 1852. May 31. June 1. Lord ST. LEONARDS, L.C. [366] HAMER'S DEVISEES CASE. [ *367] and holding that the devisees of a deceased member ought not, in that capacity, to have been placed on the list of contributories. James Hamer, a shareholder in the above Company, devised and bequeathed his real and personal estate, the latter including twentyfive shares in the Company, to his wife for life, and after her death to his daughter Everalda, the wife of Joshua Rawdon, absolutely, and he appointed his wife and daughter his executrixes. After the death of the testator, Everalda Rawdon received the first dividend in 1839, and paid it to her mother, who received the dividends until 1841, after which the Company paid no more dividends. The names of the testator's widow and daughter Everalda Rawdon were entered in the Company's books as executrixes only. The widow died in April, 1850. An order having been made for the winding-up of the Company, the Master on the 5th June, 1850, directed a call * of 100l. per share on each of the twenty-five shares to be made upon Joshua and Everalda Rawdon, and such call was made payable out of the personal estate of James Hamer. Joshua and Everalda Rawdon appealed from that decision, which was affirmed by the Vice-Chancellor KNIGHT BRUCE on the 4th July, 1850. A further call of 351. per share was made upon Joshua and Everalda Rawdon, but only, as in the former instance, in their representative character. It appearing that there were not any personal assets of James Hamer in their hands, the official manager sought to place them on the list of contributories in respect of Everalda Rawdon being the devisee of James Hamer. It was admitted that the debts in respect of which the devised estates were sought to be affected were incurred after the death of the testator. The Master being of opinion that the testator's real estate at his death was, under the Act 3 & 4 Will. IV. c. 104, contingently liable to debts which might be incurred during the term for which the partnership was formed, held that Joshua Rawdon and Everalda his wife, in respect of her being devisee, ought to be included in the list of contributories. On appeal by Joshua Rawdon and Everalda his wife to the ViceChancellor KNIGHT BRUCE, on the 1st April, 1851, his Honour reversed the Master's decision, and excluded the names of Joshua Rawdon and Everalda his wife from the list of contributories, in respect of Everalda Rawdon being devisee. The case is fully reported in the third volume of Messrs. De Gex & Smale's Reports, p. 279, both on the point as to whether the call was rightly made on Joshua Rawdon and Everalda his wife in their representative character, as also on the point which alone forms the subject of the present appeal. It will be sufficient for the purposes of this report to state, that the deed of partnership provided for its continuance for ninety-nine years, and that the property of the Company should *be deemed personal estate; and that, by the 20th clause it was provided, that before the executor, administrator, or legatee of a deceased proprietor should transfer any share vested in him in such capacity, or should become a proprietor in respect of such shares, or receive any dividends in respect of the same, he should leave for inspection, at the office of the Company in Liverpool, the probate of the will or the letters of administration under which he claimed to be entitled to the shares; and that, by the 21st clause it was provided, that every person who, being the husband of any female proprietor, or the executor, administrator, or legatee of any deceased proprietor, should not, at the time of any shares vesting in him in such capacity, be a recognized proprietor, in the Company in respect of any other shares in the capital, should, as to all duties, obligations, claims, and demands upon or against him in respect of such shares, be considered a proprietor from the time of the shares becoming vested in him as aforesaid. Mr. Bacon, Mr. Rolt, and Mr. J. V. Prior, in support of the appeal. Mr. Bethell, Mr. Malins, and Mr. H. Humphreys, in support of There is no authority for the enlarged construction here. sought to be placed on the Act 3 & 4 Will. IV. c. 104, but the plain meaning of the enactment is such as leads to a restricted construction. Mr. Bacon, in reply. THE LORD CHANCELLOR : The official manager here seeks to charge the real estate of a testator in the hands of his devisees, after the lapse of several years, with the liability to make good certain losses which have been sustained by the Company since the death of the testator. It may undoubtedly be very hard to compel devisees under the circumstances of this case to satisfy these losses; but if the testator's real estate is legally liable, this Court cannot do otherwise than give effect to such liability. It appears that the executrixes as such received the dividends upon the shares, from the time of the testator's death until the insolvency of the Company; and HAMER'S DEVISEES' CASE. [368] [369] [370] June 1. [ 371 ] HAMER'S DEVISEES' CASE. [ *372 ] it has been contended, that by the provisions of the deed the executrixes thus became the proprietors of the shares; it has, however, been decided in Doyles' case (1), that the mere receipt of dividends by executors, in their representative character, does not saddle them with any personal liability; and although this point may not be altogether free from doubt, I have no desire to disturb that decision. The question before me must be determined by reference to the deed under which the Company was constituted. By the provisions of that deed, though the contract of each member was under seal, yet the covenant was only a specialty debt where the heir was not bound, and consequently the real estate of a deceased member was not thereby affected; whether under such circumstances the devisees could have taken any, and what steps, for the relief of the real estate, I am not called upon to say, but it is clear that no such application *was made: unless, therefore, such real estate is rendered liable by the Act 3 & 4 Will. IV. c. 104, the claim of the official manager in the present case against the devisees cannot be sustained. The statutes of Will. & M. and 1 Will. IV., which have been referred to during the argument, do not appear to me to bear on the point, the question before me being simply whether the claim is within the provisions of 3 & 4 Will. IV. c. 104. That statute is somewhat ambiguously framed; but its true construction, in my opinion, is such as to comprehend debts of every description, as charges on real estate, whether so charged by will or not. Undoubtedly there is that expression in the enacting part of that Act, which might be susceptible of the restricted construction sought to be put upon it by the counsel for the respondents; but I think that such a construction is entirely displaced by the proviso which has not been referred to, "that in the administration of assets by courts of equity, under and by virtue of this Act, all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands." Thus, therefore, the Act, in establishing a priority of payment in favour of creditors by specialty in which the heirs are bound, before the payment of specialty or simple contract debts where the heirs are not bound, necessarily recognises the payment of such specialty (1) 2 H. & Tw. 221. [The same point had been previously decided in Armstrong's case, 75 R. R. 198 (1 and simple contract debts out of the real estate, which was not previously subject to the satisfaction of such debts. It is also to be observed, that the Act is not applicable to cases where there has been a devise charged with or subject to the payment of debts; and the question then arises, for what purpose was the Act passed. In my opinion, the object of the Legislature, and of the Act, was to create a charge of debts on real estate, where no such charge had been made by will, and I do not think that such charge was intended to be restricted only to those debts by specialty where the heirs were bound. Now, it having been decided that when a testator has charged his real estate with the payment of debts generally, future debts arising out of a previous liability are included, and the object of the Act being to supply the omission of an express charge by a testator, the present claim, supported as it is by the cases of Morse v. Tucker (1), and Bermingham v. Burke (2), appears to me to fall within the operation of that statute. That being so, and there being nothing either in the deed of settlement, or in the conduct of the parties, inconsistent with the claim of the official manager, I am clearly of opinion that such claim must be allowed. It was argued, that the real estate could only be reached in the same way as if the claim were preferred in an administration suit, and that too not before the personal estate had been exhausted; but I have nothing to do with that question. The question before me is simply whether these devisees, as such, are liable in any event to be placed on the list of contributories; and being of opinion that they are so liable, and that they were rightly placed on the list of contributories by the Master, the judgment of the VICE-CHANCELLOR must be overruled. HAMER'S DEVISEES' CASE. [ *373 ] PREECE AND EVANS'S CASE. (IN RE THE RUGBY, WARWICK, AND WORCESTER RAILWAY COMPANY.) (2 D. M. & G. 374-382; S. C. 15 Jur. 532.) [Obsolete law as to the liability of scripholders in the winding-up of an abortive Company under the Joint Stock Companies Acts, 1848-1849.] (1) 5 Hare, 79. [In this case and in Bermingham v. Burke, the debts were expressly charged by will.-O. A. S.] 1852. July 7. R.R.-VOL. XCV. 10 |