Page:The English Reports v1 1900.pdf/1027

year 1681, which was prosecuted and carried on by the appellants, that the appellants, having at the same time the poor's evidence in their custody, obtained a negative decree that the poor had no right to King's Mead; and that they most unjustly got a decree for £32 to be deducted out of the poor's money then in their hands, for the costs of that inquisition and decree; but for which sum of £32 the respondents had never received any allowance or satisfaction. That as to the sum of £50 demanded for passing the grant, no such sum was ever demanded before the commissioners, either in 1645 or 1708; no exception was taken in the Court of Chancery, because it was not allowed; nor was any evidence ever shown of its having been paid on the contrary, it appeared by the decree in 1645, that the Mayor and Burgesses owned and declared in the presence of the commissioners, that upon payment of £100 borrowed at interest, the poor were from thenceforth to have the full benefit of the profits of the said meadow; and this sum of £100 and interest was accordingly allowed to them in the account directed by the decree. That the same answer might be given as to the ninety-nine years term assigned by Sir John Walter, it being only a term kept on foot to attend and protect the inheritance; and not one penny appeared to have been over paid for the assignment of it. That as to the appellants claim of 40s. per ann. grass-money, to be allowed upon the account, as paid to the poor annually for King's Mead, from the year 1645, the appellants gave no evidence to the Court of Chancery, from what time such payment was made; and therefore the court with great justice decreed, that from the time the £100 and interest should appear to be satisfied, they should be allowed this 40s. per ann. as paid to the poor, presuming that nothing was paid, while the corporation retained the profits to satisfy their own debt. As to the objection, that the appellants were overcharged in the value of King's Mead, at £14 per ann. the fee-farm rent of £4 14s. 4d. [382] was therein included; and it was fully proved by witnesses, that the meadow contained above twenty-nine acres of land, and was worth £15 15s. 10d. per ann. over and above the fee-farm rent; so that the same was in fact worth, and the appellants ought accordingly to have been charged with, £20 10s. 2d. as the annual value thereof; little reason therefore had the appellants to complain of the decree in this respect. But it was necessary that they should be charged at a certain or medium value, inasmuch as, at the hearing of the cause, they gave no evidence of the annual profits by them made and received, nor pretended to have kept any account thereof; and the charge of examining to the crop, and money received for agistment for so many years back, would have amounted to much more than the sum disputed between the parties. And as to the other objection, that the Master had not taken the account as directed by the decree, it amounted to no more than an exception to the Master's report, which ought to have been first taken in the Court of Chancery, and was never before made use of as a ground of appeal, without previously taking the opinion of that court.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree and report therein complained of, affirmed; and that such of the appellants as signed the appeal, should pay the respondents £40 for their costs. (Jour. vol. 19. p. 571.)

The respondent having purchased a ship called the Ekines, procured a licence to trade to the East Indies, on £1000 stock; and in the year 1700, he fitted out this ship with a considerable cargo, the prime cost of which, exclusive of the licence, amounted