Page:The English Reports v1 1900.pdf/1020

stated, the cause came on for further directions, and also upon exceptions to the report, on the 13th of December 1701, before the Lord Keeper Wright; who was pleased to decree, that the Company should make good, and be charged with £200 per ann. to the said charity, and pay the arrears thereof, from the time of filing the information, together with the costs of the suit; and also that they should set out of their own lands of inheritance, or else purchase as much land of inheritance, not subject to any other charities or incumbrances, as would effectually answer to the said charity £200 per ann. and settle the same in the name of the Company, in trust, and for the use of the said hospital and charity at Newland, according to the intention of the donor's will; and it was further ordered, that the preacher should allow taxes out of his salary, but the court declared that the charity ought to allow no taxes; and it was referred to the Master to compute the arrears, tax the costs, and see the settlement made accordingly.

From this decree the Company appealed, insisting (E. Jennings, R. Thornhill), that the £200 per ann. being in lands, did pay taxes, and were subject to other charges and outgoings; and therefore, if they were to pay £200 per ann. over and above taxes, and other outgoings, they would pay near £300 per ann. in the whole. That it was admitted, the Company had paid to the charity £166 8s. 4d. per ann. which, with the charges of repairs, receiving and returning of money, amounted to more than £200 per ann. besides taxes; so that the Company were, and always had been, great losers by paying the said £166 8s. 4d. clear to the charity out of lands of £200 per ann.; and in regard to such loss, and as the Company were not in any fault, they ought not to have been condemned to the payment of costs.

On the other side it was contended (E. Strode), that the appellants had acted very ill in reducing the poor's allowance, and in not purchasing and settling lands, which would have effectually answered the £200 per ann.; when, without the privity of the respondents, they had sold lands of £280 per ann. in Huntingdonshire, purchased with the charity money, and had monies in their hands sufficient to make such purchase. That if lands were purchased, and appropriated, there would be no occasion to make any allowance for taxes or repairs; and the appellants ought surely to have no allowance for the management of the trust, when the donor had given them a gratuity of £1000 to perform it; and that the manifest necessity of bringing the information, and the great charges which had attended the prosecution of it, made it most just that the appellants should pay costs.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and that the decree therein complained of, should be affirmed; and it was further ordered, that the appellants, the Master and four Wardens of the [372] Haberdashers Company, should pay, or cause to be paid, to the respondents or their agents, the sum of £10 for their costs in defending the said appeal. (Jour. vol. 17. p. 251.)

John Newman, the uncle of the respondents, by his will, dated the 17th of April 1700, gave to the respondent John, a legacy of £100, to the respondent Stephen, £150, and to the respondent Ann, £50; and, after several small legacies to the children of his more remote relations, he made the appellants his executors, and gave them £20 a-piece for their trouble; and he gave all the residue of his personal estate to the respondents, to be improved for them, and, together with their said legacies, to be paid when they should respectively attain twenty-one; and the testator gave to the appellant Stevens the lease of his farm, for the residue of his term, from Michaelmas then next.

After the testator's death, the appellants proved his will, and possessed themselves of his effects; but, though the father of the respondents took a journey to see the appraisement fairly made, on behalf of his children, yet the appellants would not