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1832.

SMITH

ข.

HARDY.

TINDAL C. J. If this had been a plea on which only one issue could have been taken, and there had been a profert in curiam of the alleged release, I am not prepared to say that we should not have discharged this rule. But this plea is so ingeniously prepared, that it is likely to occasion perplexity and expense, and the Plaintiff might be at a loss whether to take issue on the existence of the release or its destruction by accident. The case, therefore, falls within the principle of Shadwell v. Berthoud (a), and Body v. Johnson (b), where, upon an affidavit of its falsehood, the Court allowed the plaintiff to sign judgment upon a plea so framed as that it might reasonably induce the plaintiff to consult coun-' sel to know how to deal with it.

PARK J. The distinction has been properly taken by my Brother Gaselee in Smith v. Backwell. The present plea as presenting two points for issue, ought not to avail the Defendant after affidavit of its falsehood.

GASELEE J. This plea raises different issues, and has something improper on the face of it, for it is improbable that the Defendant should be unable to produce a deed executed in December last. Those who put in these false pleas, would do well to look to the! practice in early times, when, it appears they were liable to be severely punished.

ALDERSON J. I agree with Lord Ellenborough, who said that no perverse ingenuity should be allowed in framing these pleas.

Rule absolute.

(a) s B. & A. 750.

(6) Ibid. 751.

1832.

STRATTON V. GREEN.

THE Defendant paid 447. 18s. 2d. into court in an action for fixtures, which the Plaintiff had relinquished to him at his request; but, before the cause was brought to issue, the parties, by a submission which did not mention the subject of costs, appointed arbitrators "to balance their accounts, and settle all matters in dispute respecting the leaving and occupying of two corn-mills and a dwelling-house."

and

The arbitrators ordered the Defendant to pay 17. 13s. 10d. in addition to the sum paid into court, directed that each party should pay his own law expenses, together with the expenses of the arbitration.

Wilde Serjt. obtained a rule nisi for the prothonotary to tax the Plaintiff's costs upon his taking the money

out of court.

May 12.

Held, that a reference to arbitrators to

balance accounts and

settle all mat

ters in dis

pute respecting the leav

ing and occupying of

two cornmills and a

dwellinghouse, did

not authorize them to de

cide on the

costs of an fixtures, at least up to the time of paying

action for

money into

was entered

Heath Serjt. on the part of the Defendant, resisted court, when this, on the ground that, assuming the arbitrators to the submission have had no authority to decide on the question of costs, into. still their award was not equivalent to a verdict, and, without a verdict, or an award for costs on a proper authority, the Plaintiff could not claim them. The submission, however, of all matters in dispute virtually included the question of costs, which the arbitrators had decided.

Wilde. The Plaintiff, when he takes the money out of court, is entitled to costs, at least up to the time when it is paid in; for he takes it out, not by virtue of the award, but because the Defendant, by paying, VOL. VIII. admits

G g

1832.

STRATTON

บ.

GREEN.

admits it to be due: to that extent, therefore, he admits the action to be well founded. And the arbitrators had no authority to decide on the question of costs; for this was not a reference of the cause, or even of all matters in difference, but merely of the account between the parties.

TINDALL C. J. If I could perceive that this was a reference of the cause, I should be disposed to say, that the rule should be discharged. But I cannot see that the cause was referred, although the matters in differwhen money has been paid into

ence were.

If so,

court, and the Defendant, by the payment, admits he is wrong up to that time, it seems to me that up to that time the Plaintiff is entitled to his costs.

PARK J. concurred.

GASELEE J. The justice of the case, perhaps, accords with the decision which has been pronounced; but I think the law is the other way, considering this submission to be, in effect, a reference of the cause.

ALDERSON J. I think it may fairly be considered that the arbitrators had a power to decide as to the costs subsequent to the payment of money into court, but not before; and that agrees with the justice of the case.

Rule absolute for costs up to the time of paying the money into court.

1832.

The Dean and Chapter of ELY v. CALDECOT.

May 12.

sufficient to establish a

the

THIS 'HIS was an action of assumpsit, brought to recover What evidence the amount of certain fines, alleged to be due from the Defendant upon his admission to certain copyhold custom for premises. At the trial before Alderson J., at the Suffolk Spring assizes, 1831, a verdict was taken for the Plaintiffs, damages 1821., subject to the opinion of the Court man upon adon the following case:

The

The Plaintiffs are lords of the manor of Lakenheath, in the county of Suffolk. By the custom of the manor, fines payable upon admission to lands, parcel of the manor, are arbitrary, but not exceeding two years' annual value of such lands. The father of the Defendant held certain premises, parcel of the said manor, as tenant for life thereof, under the will of the Rev. John Barnes, with remainder in fee to the Defendant. father of the Defendant was admitted, under the said will, to the premises, at a court held the 14th of October 1818, to hold the same to him and his assigns for life, with remainder as in the will was mentioned; and paid a full fine upon such admission. After the death of the tenant for life, the Defendant, at a court held on the 19th of May 1828, was admitted in fee to the premises so devised to him by the will of the said John Barnes, in remainder after the decease of his father. In order to prove a special custom sufficient to warrant the claim of the Plaintiffs to a fine in this case, Hugh Robert Evans was examined on their part. He stated that he had acted as steward of the manor for thirty-five years, and that the custom of the manor was, for a tenant in remainder to pay a full fine upon his admission upon Gg 2

the

payment of a full fine

by remainder

mission to

copyhold.

1832.

The Dean

of ELY

บ.

CALDECOT.

the death of tenant for life: but it appeared, upon his cross-examination, that his knowledge on that subject and Chapter was derived entirely from an inspection of the different entries in the court rolls under his care, except that, during the time he had been steward, he had personal knowledge of two instances, and no more, of admissions of tenants in remainder after the deaths of tenants for life, namely, Willett's and Payne's admissions. Upon the former admission, namely Willett's, he received on the 3d of October 1808, on the admission of Mary Willett, for life, 3947. 10s., and, on the 31st of October 1821, on the admission of Anthony Willett, the tenant in remainder upon the decease of the tenant for life to the same estate, 460l. 5s., being, in both instances, full fines; and, in the latter case (Payne's), Eliz. Payne, on the 25th of May 1807, was admitted for life, and paid a fine of 201. 4s. 3d.: and, at the same court, Thomas Payne, the remainder-man to the remainder expectant on her decease, was admitted, and paid 10l. 2s. 3d.; the former being a full, the latter a half fine. There was no evidence of reputation, or declarations by deceased tenants of the manor as to any such custom.

The following extracts from the court rolls were read in evidence on the part of the Plaintiff:

17th of October 1735, Frances Malt admitted for life, under the will of John Malt, to a cottage: and she paid her fine.

10th of October 1737, Frances Malt, spinster, admitted in remainder in fee, on the death of the aforesaid Frances Malt, to the same cottage, under the same will: and she paid her fine.

11th of May 1737, Mary Taylor admitted for life, under the will of her mother Mary Secker, to a messuage, ; and twenty-two acres of land, rent

rent

and she paid her several fines.

13th of April 1761, Matthew Taylor admitted in re

mainder

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