answer to a question by the Court, he was unable to affirmi that the master had allowed costs of attendance twice for the same witnesses in one day. ALEXANDER, C. B. I understand the question to be, whether the master has treated as costs of the arbitration particular sums, which in fact are costs of the cause. I suppose that in this, as in other courts, a confidence is to be placed in the discretion of its officer; and that credit must be given him for having proceeded upon the evidence before him. I have bestowed great attention upon these affidavits; and no instance has been pointed out to me, which would, in my opinion, justify the Court in sending the parties before the master a second time. GRAHAM, B. My difficulty was as to the issue of tender. But, I suppose, that in case this issue failed, there were other issues for which the witnesses would be necessary; and they must have been equally necessary in the other causes. Therefore, I think the master exercised his discretion properly enough, in allowing the costs of attendance twice. Accordingly, my opinion is, that the rule ought to be discharged; but I have some doubt as to the costs. GARROW, B. I think the Court ought not to make this rule absolute. It is an unfortunate case, when it becomes the interest of parties to throw charges on one fund rather than another. Any man, looking at certain items in these bills, would suppose, that after the agreement to erfer, there was an order of nisi prius. Now it is quite intolerable to say that bills of costs are to be made according to a formula. I disapprove also of attorneys swearing their own witnesses; the oath ought to be administered by some accredited officer. It appears to me, 1824. UTTING บ. EVANS. on the whole, that with the exception of one or two charges, this bill ought to stand. HULLOCK, B. I also am of opinion, that this bill ought to stand. I think that the grounds on which the rule was obtained, have been sufficiently answered by the affidavits on the other side. Rule discharged, without costs. 1824. January 31st. in certain cases DELLA CAINEA O. HAWARD, Clerk, and others. The court will In this cause, stock to the amount of 315., standing in the books in the names of the defendants, who were executors of the estate and effects of Dame Dorothy Mill, deceased, and purchased in the year 1812 with part of that estate, was by mere oversight not discovered at the time when an account of the testator's estate was taken by the master, pursuant to the decree on the hearing. his name, and purchased out of the estate of his testator a considerable time before, vidends which Mr. Hayward was the only surviving one of the oriwithout the di- ginal executors. He had only recently acted in that capacity, and had been put to expences and charges in such office, exceeding the amount of the dividends since the time of the investment. have accrued in the mean time. Roupell now moved that Mr. Hayward might be at liberty to transfer the principal sum only to the name of the accountant-general of this Court, in trust in this cause. Wilbraham, for the plaintiff, opposed the motion; insisting that the dividends, from the time of taking the account, ought to be included in the sum prayed to be transferred; because the Plaintiff ought not to be put in a worse situation by the mistake of the executors, than if the transfer had taken place at that time. GRAHAM, Baron. It is not denied that charges have been imposed on him— Roupell. No-and it is not the course of this Court to take the last shilling out of the pocket of an executor. Motion granted. .1824. DELLA CAINEA v. HAYWARD, Clerk, and others. The GOVERNORS of the Free-School in LUCTON (in the 1824. January 31st. randum of Lucton school AN agreement was entered into by the Plaintiffs with Where the folthe person, and at the time specified in the following lowing memoextract from the draft thereof: "The Governors of agreement was made, "The Lucton school to let to Mr. Philip Pymble, the tithes of Governors of Yarpole and Bircher, at 250l. a year; and the tithes of Lucton, at 180l. a year, for three years from Christmas next, payable half-yearly, &c. Mr. Pymble to be at liberty to continue tenant of the tithes, from the end of the three years, for eleven years more, at the same rent, if he thinks proper, and shall find surety to join in the year, for three to let to Mr. Philip Pymble Yarpole and the tithes of Bircher at 2501. a year, and the tithes of Luc ton at 180l. a years, from Christmas next, payable half-yearly, &c. 8th November, 1820.-Thos. Colman, agent to the Governors; Philip Pymble; witness, Edward Smith;" and the Governors filed a bill in Michaelmas Term, 1821, against the occupiers of lands comprised in the agreement, for an account of the tithes of all titheable matters taken from off their farms from the 25th December, 1820, to which Pymble was not made a party; some of the tithes having been paid to him, some to another person, and the title of the plaintiffs to demand the residue disputed: a motion on the part of the plaintiffs to amend their bill, by making Pymble a co-plaintiff, and otherwise as they should be advised, upon payment of the costs incurred by the defendants by reason of the amendments, or upon payment of such costs as the court should deem proper, was refused with costs. (Graham, B. doubting.) 1824. The GOVERN lease, to be approved by the Governors. 8th November, 1820. Thomas Colman agent to the Governors. Philip ORS OF LUCTON Pymble. Witness, Edward Smith." Free School v. T. SMITH and others. The defendants were the occupiers of certain lands within the Parish of Yarpole, and the right to certain tithes arising thereon, was disputed between them and the plaintiffs. The plaintiffs, preparatory to filing a bill, caused the memorandum of agreement to be submitted to counsel; who advised, that the defendant did not take such an interest under it, that he ought to be made a co-plaintiff in the suit. They accordingly filed their bill alone in Michaelmas term 1821, simply stating their title under the founder, to all the tithes of the parish of Yarpole, for an account of all tithes of titheable matters taken by the defendants from off their farms since the 25th of December 1820. The defendants put in their answers as of Hilary term 1823, stating, as to part of the lands occupied, that they were parcel of the possessions of the Abbey of Reading, one of the greater monasteries, and discharged of the payment of tithes altogether: as to the rest of their lands, they insisted on certain small moduses in lieu of the tithes of calves, colts, milk, lambs, and gardens to the tithes of hay and agistment, they set up a title in themselves under a grant, or release at some former period, from some person, or body politic, having good right to make such grant or release: as to the tithes of wheat, barley, oats, and of certain other things taken from off the last-mentioned lands, between the 25th of December 1820, and the 24th of November 1821, they alleged, that they had been duly set out, and taken away, in part, by one P. Pymble, claiming the same, and in other part, by the Rev. Whittington Landon, D. D. Chaplain of the Chapelry of Yarpole, or their respective agents; and that on the day last mentioned, nothing had been due from them to any one in respect of the said tithes. And they sub mitted, that Pymble and the Chaplain ought to be made parties to the suit. The agreement having been in fact acted upon, the plaintiffs were subsequently advised to make Pymble a party, and to confine their claim to such tithes only as had not been paid to him, or were not payable to the Chaplain. And the Court was moved in Michaelmas term 1823, that they might be at liberty to amend their bill, by making Pymble a co-plaintiff, and otherwise, as they should be advised, on payment of 20s. costs to such defendants from whom answers would be required. The motion was argued at length, and refused with costs. This application not having been supported by any affidavit, another motion was made at the sittings after that term, in Gray's-Inn Hall, on an affidavit, by the plaintiffs' clerk in Court; on the terms of payment of the costs incurred by the defendants by reason of the amendments, or upon payment of such costs as the Court should deem proper. The affidavit stated the whole facts and proceedings in the cause; and that to the best of deponent's recollection, he was ignorant, at the time he gave the first instructions to counsel, that Pymble had received any of the tithes. But it not appearing then, that Pymble had consented to be made a party, the motion was ordered to stand over. This day the application was renewed by Jervis and Finch, upon a second affidavit by the clerk in Court, verifying an annexed written consent by Pymble, to be made a co-plaintiff. It was opposed by Martin, H. and Boteler. Arguments in support of the motion. That the substantial questions in the cause would be precisely as they were before the amendments proposed; namely, whether the defendants were entitled to hold the lands discharged from the payment of particular tithes on any of the grounds disclosed in their answers. That the effect of the amendments would be merely to add a 1824. The GOVERNORS OF LUCTON Free School v. T. SMITH and others. |