defendant, for principal, interest and costs, upon the bonds, £613 1s. 1d.; that the value of the goods taken in execution amounted to £616 8s. 5d. And, that after making the plaintiff an allowance of £40 for the value of some underwood, which he had not cut, and of certain other sums for ploughing and dunging the farm, there remained a balance due from the defendant to the plaintiff of £19 16s. 9d.
The cause being finally heard upon this report, on the 4th of July 1715, the Court decreed the defendant, to pay the plaintiff the said balance of £19 16s. 9d. together with his costs.
From this decree, so far as it confirmed the allowance for the underwood, and as it condemned the defendant in costs, he appealed; insisting, (E. Ward, J. Floyer) that the respondent by his bill, demanded no more than £25 for the wood unfelled; and that it appeared, of his own shewing, to be only of five years growth, which was two years under the age limited for cutting thereof, by the lease. That the liberty of cutting underwood was given to the respondent, in view and contemplation of his continuing the whole term; but which, by his own default, he became incapable of doing, and thereby the farm was thrown upon the appellant's hands, at a dead season of the year. That by the surrender of the lease, which was voluntary and by deed, this right of felling was wholly gone and extinguished, as well in conscience as in law; there being no fraud or compulsion used by the appellant to gain such surrender, as was untruly suggested by the respondent's bill, nor any mention or insisting upon this privilege at the time of the surrender. And as to the costs, it was conceived the appellant ought not to pay any; because, upon deducting this allowance of £40 as an overcharge, the balance would then be in his favour. But even if the account and balance should stand as settled by the decree, the appellant ought not to be condemned in the payment of costs, because he had done nothing but what of necessity he was obliged to do, for recovering a just debt; and having, before the sale of the goods, made so fair an offer, as to abate £80 upon the respondent's giving security for that debt. And though subsequent to the distress and execution, the balance had, by this allowance of £40 turned unexpectedly in favour of the respondent; yet, as it was so inconsiderable, it ought not to turn to the disadvantage of the appellant, who bad levied as near to the value of the debt, as could possibly be computed.
On the other side it was said, that the respondent had plainly falsified the appellant's answer, wherein be insisted, (J. Jekyll, L.&nsp;Carter) that there [3] remained justly due to him a balance of £282 11s. 8d. And that, as the appellant had an allowance in the account of two several sums of £50 and £22 17s. 10d. for which he could not have recovered any satisfaction at law; it was altogether as just, that the respondent should he allowed for the underwood, which he might have cut, but did not; and which the appellant had therefore the benefit of.
But, after hearing counsel on this appeal, it was ordered and adjudged, that so much of the decree as directed the appellant to pay costs, should be reversed. (Jour. vol. 20. p. 315.)
Case 2.—John Dunbar, Esq.,—Appellant; William Lem, et Ux.,—Respondents [25th March 1772].
[Mew's Dig. i. 62.]
The respondent William Lem, in the year 1751, became clerk to the appellant, who was then a merchant in London, and agreed to attend him four hours in the morning, and two hours in the afternoon, if required, to keep his books, and to do the usual business of a clerk, during the time he continued in that capacity; but he found the appellant's books unsettled and unbalanced.
About the year 1753, the respondent followed the business of an insurance broker, and in March 1761, of an underwriter, and bad dealings with the appellant and various other persons to a very large amount; and his demand on the
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