and gave relief against a new invented and dangerous fraud, and ought to be affirmed by the Lords. (T. Powys.)
Die Martis 13[1] Januarii, 1698. Upon hearing council on this appeal, it was ordered and adjudged by the Lords, that the same should be dismissed, and the decrees and orders complained of affirmed. Lords Journ. vol. xvi. p. 370.
The petitioners stated a decree heretofore obtained against them, and that it was thereby amongst other things ordered, that the Master should tax the respondents, the guardians, their costs; in which decree the petitioners acquiesce: And that respondent Jonathan had an estate of 800l. per ann. in possession, and 3000l. per ann. in reversion, sufficient to answer the guardians their costs; and that respondent William had 76l. per ann. and respondent Anthony 50l. per ann. in possession, besides 200l. per ann. or thereabouts, a-piece in annuities, after the death of Sir John Cope; and that the guardians, to load appellants, had inrolled the decree, and taxed their costs between themselves, and served appellants with a subpœna for same; and took out an attachment against them for non-payment, although appellants are not, as they insisted, decreed to pay the costs so ordered to be taxed; and that upon appellant's motion to the Lord Keeper, 13th July last, complaining herein, his Lordship would not deliver any opinion therein, but directed appellants to apply to the Lords to explain the decretal order as to costs. And appellants insisted that there did not appear any wilful breach of trust in them, and that they had acted only according to the opinion of council; and that the Chancellor looked upon respondents demands not clear or plain, but, on the contrary, that the matter was disputable and doubtful, and the cause was three days at hearing. And the court did not, as appellants insisted, intend the executors should pay any costs, otherwise it would have been expressly so declared; and that the money decreed to respondents was abundantly more than sufficient to reimburse the guardians their costs; and that the appellants apprehending they were not ordered to pay the costs, never attended the taxing thereof, but the same were taxed ex parte; and there-[98]-fore appellants hoped the Lords would not add to the decree, by ordering them to pay the said costs. (W. Dobyns.)
The respondents on the other hand insisted, that the court had directed the Master to tax the respondents, the guardians, their costs, and that decree was affirmed by the Lords; and that petitioners had in no sort performed the decree though it had been inrolled, and they served with a writ of execution thereof; and that pursuant thereto respondents costs had been taxed by Roger Meredith, Esq. the Master, to 279l. 6s. 8d. less by 100l. than the guardians had really and necessarily expended in the suits, for which petitioner Fowle had been served with subpoenas, and an attachment for non-payment; and that upon their petition to the Lord Keeper, he declared that the decree being affirmed by the Lords, petitioners must apply there to have the order explained, and in the mean time suspended proceedings on the attachment for the costs; and respondents insisted that the costs so decreed to respondents, could not be intended to be payable by any but petitioners, who had been held guilty of a breach of trust both in the Court of Chancery and by the Lords. (Wm. Cowper, Rob. Dormer.)
Die Sabbati, 22 Martii, 1700. Upon hearing council upon this petition, it was ordered and adjudged by the Lords that the said Reginald Bretland and Robert Fowle, executors of the last will of Sir Thomas Fowle, should pay the costs
- ↑ It is 13 Jan. in the printed Journal, but it is an error for the 31st; the date before being 30 Jan. and the date following 1 Feb. 1698.
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