Page:The English Reports v1 1900.pdf/483

the said John Fortune should monthly, or oftener if required, deliver unto the said John Stanyon, a true and just account of all and singular the fees, profits, perquisites, and emoluments, incident or justly belonging to the said office, according to the table of fees belonging to the said office; which he should, might, or ought, during the said deputation, to have, take, and receive, for and in respect of the execution of the said office; and that, after such account accepted by the said John Stanyon, the said John Fortune should pay to the said John Stanyon three full fourth parts of all and singular the fees, perquisites, and profits of the said office, detaining the other fourth part for himself.

Pursuant to these articles, the appellant Fortune entered upon the office, and continued therein till the 11th of August 1694; when a dispute arose between him and Mr. Stanyon, about the monies received for the copies and ingrossments of wills and inventories; Stanyon insisting upon his accounting for the same, and the other refusing so to do, and claiming them to his own use, because they were not contained in the table of fees.

In consequence of this dispute, the respondent brought an action against the appellant Machen, upon his bond, and obtained a verdict; and, upon a new trial being granted and had, he obtained another verdict.

Hereupon Machen brought his bill in Chancery, against both [134] Stanyon and Fortune, to be relieved against the bond; and, that upon Fortune's accounting with, and paying Stanyon what was due to him, the bond might be delivered up, and satisfaction acknowledged upon the judgment. Stanyon also filed a bill against Fortune, for a general account of all the profits of the office, during the time of his having acted as deputy therein.

Both these causes were heard before the Master of the Rolls, on the 11th of February 1702, when his Honour decreed, that the defendant Fortune should come to a particular account before the Master for what he had received, according to the said table of fees; and also for what he had received for the copies of wills and inventories; but reserved the consideration whether he should pay for such copies, and also the consideration of costs, until after the Master should have made his report.

Mr. Stanyon being dissatisfied with this decree, appealed to the Lord Keeper; and the cause being heard on the 3d of November 1704, his Lordship decreed, that the defendant Fortune should account for all the fees, perquisites, and profits of the said office, according to the table of fees, for all matters included therein, and ascertained thereby; but for all such fees, perquisites, and profits of the said office as were not mentioned in, and ascertained by, the said table, the said defendant was to account for the same, according to his receipts: and what upon the said account should appear to have been, or might have been received, by the said defendant Fortune as aforesaid, he was to retain one-fourth part thereof to his own use, and to pay over the other three-fourths to the said Stanyon, at such time and place as the Master should appoint; together with his costs at law, and of both the said causes, to be taxed by the said Master.

From this decree both the defendants appealed, insisting (M. Davies), that it was contrary to the articles, by obliging the appellant Fortune to account for fees and profits of the office, which were neither justly belonging, or incident to the office, nor mentioned in the table of fees, and which his predecessors constantly received to their own use; and that the costs ought to have been reserved until after the account was taken, when it would appear which of the parties was in the wrong, and ought to pay costs.

On the other side the respondent contended (T. Parker), that it was plain, from the whole tenor, as well as the express words of the articles, that the appellant Fortune was to receive to the use of the respondent, and account to him generally, for all and singular the lawful fees, profits, and perquisites, in any wise incident or belonging to the office, and not for the fees only which were mentioned in the table; and that, after such account was taken and accepted by the respondent, the said appellant was to pay three-fourth parts of all such fees, perquisites, and profits to him, and retain the other fourth part thereof for his pains in the execution of the office. And as to costs, the respondent having obtained two verdicts on the bond, for performance of covenants, and the appellant Machen being relieved