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1832.

SMITH

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 (6), 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 Counsel 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. I

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's 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.

May 12.

THE Defendant paid 441. 18s. 2d. into court in an Held, that a action for fixtures, which the Plaintiff had relin- reference to

arbitrators to quished to hiin at his request; but, before the cause was balance acbrought to issue, the parties, by a submission which did counts and

w settle all matnot mention the subject of costs, appointed arbitrators

S ters in dis" to balance their accounts, and settle all matters in pute respectdispute respecting the leaving and occupying of two ng

ing and occorn-mills and a dwelling-house."

cupying of The arbitrators ordered the Defendant to pay two corn

mills and a il. 13s. 10d. in addition to the sum paid into court, and dwelling directed that each party should pay his own law ex- house, did penses, together with the expenses of the arbitration.

not authorize them to de

cide on the Wilde Serjt. obtained a rule nisi for the prothonotary costs of an

action for to tax the Plaintiff's costs upon his taking the money fixtures, at out of court.

least up to the time of paying

money into Heath Serjt. on the part of the Defendant, resisted court, when this, on the ground that, assuming the arbitrators to the submission

was entered have had no authority to decide on the question of costs, in 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. G g

admits

1832.

STRATTON

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.

GREEN.

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 difference were. If so, when money has been paid into 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 submisa sion 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 pay

ing the money into court.

1832.

The Dean and Chapter of Ely v. Caldecot.

Mag 12.

allomde boda fem sufficient to

THIS was an action of assumpsit, brought to recover What evidence the amount of certain fines, alleged to be due from

establish a the Defendant upon his admission to certain copyhold custom for premises. At the trial before Alderson J., at the Suffolk the payment

of a full fine Spring assizes, 1831, a verdict was taken for the Plain- by rema tiffs, damages 1821., subject to the opinion of the Court man upon adon the following case :

mission to

copyhold. 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. The 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

G g 2

the

1832. the death of tenant for life: but it appeared, upon his

cross-examination, that his knowledge on that subject The Dean and Chapter was derived entirely from an inspection of the different

of Ele entries in the court rolls under his care, except that, CALDECOT.

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 Wil-
lett, for life, 3941. 10s., and, on the 31st of October 1821,
on the admission of Anthony Willett, the tenant in re-
mainder upon the decease of the tenant for life to the
same estate, 4601. 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. 45. 3d.: and, at the same court, Thomas Payne, the
remainder-man to the remainder expectant on her de-
cease, was admitted, and paid 10l. 2s. 3d. ; the former
being a full, the latter a half fine. There was no evi-
dence 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, rent ; and twenty-two acres of land, rent and she paid her several fines. 13th of April 1761, Matthew Taylor admitted in re

mainder

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