Esdaile v Peacock and Others
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 1859 |
| Date | 27 April 1859 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 402
HIGH COURT OF CHANCERY
Costs. Tithe Suits. Apportionment.
[216] esdaile v. peacock and others. April 27, 1859. Costs. Tithe Suits. Apportionment. In a suit for an account of tithes, the Court, in decreeing an account and payment, may apportion the costs where the Defendants have several defences. But where there is a common defence the costs must be paid by the Defendants generally. The Plaintiff was seised in fee of the rectory impropriate of the parish of St. Botolph without Aldgate.. The Defendants, seven in number, were occupiers of certain messuages or tenements, situate in that part of the parish which lies within the City of London. The bill prayed an account of what was due from the Defendants in respect of such messuages or tenements on account of tithes, substantially to the effect mentioned in the decree. All the Defendants appeared, but three only were represented by counsel at the hearing, viz., Teller, Isaacs and Ellis. Mr. Willcock, Q.C., and Mr. Wood appeared for the Plaintiff; Mr. Joyce, for the three Defendants, Teller, Isaacs and Ellis. The Vice-Chancellor having held that there must be a decree against all the Defendants for an account and payment, as mentioned below- Mr. Joyce now asked the Court to apportion the costs. It is by no means of course to pronounce a general decree. It is only of course to do so where the Plaintiff succeeds against all the Defendants, or all the Defendants JOHNS. 217. TUCK. V. SILVER 403 against him. There are many cases where the Court, in its discretion, may model the decree so as to do justice to the several Defendants. It is everyday practice to separate the costs and apportion them amongst the various Defendants, the Court declaring how much shall be paid by some, and how much by others of them. It would be unjust that some of [217] various Defendants, who had issues to try which might be tried at a trifling expense, should have to bear a full equal share of the burthen of the costs of trying the others directed by the same decree, which might require expensive documents, in respect of which, on points of admissibility of evidence, there might be new trial after new trial ordered. That doctrine would even cast upon Defendants succeeding on the trial of issues the burthen of bearing the expense of those who failed upon the trial: per curiam in Wolley v. Brownhill (13 Price, 511). vice-chancellor Sir W. page wood. The case...
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