Traherne and Parry against Gardner and Newman
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1857 |
| Date | 04 July 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 59
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 26 L. J. Q. B. 259; 3 Jur. N. S. 1100. Distinguished, Q' Rourke v. Commissioners for Railways, 1890, 15 App. Cas. 375.
[161] traherne and parry against gardner and newman. Saturday, July 4th, 1857. Debt for money had atid received, in respect of sums paid, under protest, on the admission of plaintiff to copyhold premises, alleged to be charged in excess. Plea: Never indebted. The particulars of demand consisted of eleven 60 TRAHBRNE V. GARDNER 8 EL. & BL. 162. items, amounting in all to 171. Is. On a case reserved, it appeared that plaintiff insisted that the principle on which the fees were charged was faulty, of which opinion was the Court in some instances, but not all: and they directed that the Master should reduce the charges, by allowing only a quantum meruit in respect to the greater part of the charges. On one item, 3s. for proclamations, the Master allowed the whole charge: on three items, he disallowed the charge altogether: and in all the others made a reduction : the whole reduction of defendant's charges amounted to 91. Is. 4d.-Held : that the defendants were entitled to have the verdict entered distributively, viz. : as to 91. Is. 4d. for the plaintiff, and as to the residue, 71. 19s. 8d., for the defendant: and that each party was to be allowed on taxation his costs in respect of so much as he had succeeded upon. [S. C. 26 L. J. Q. B. 259 ; 3 Jur. N. S. 1100. Distinguished, O'Rourke v. Commissioners for Railways, 1890, 15 App. Cas. 375.] Wilde, in last Easter Term, obtained a rule calling on the defendants to shew cause why the Master should not be at liberty to review his taxation of costs in thia case. From the affidavits on which the rule was obtained, it appeared that the declaration contained only the common counts in Indebitatus assumpsit, for money paid by the plaintiffs for the defendants, for money had and received by the defendants for the use of the plaintiffs, and on an account stated. The defendants pleaded Never indebted ; and on such plea issue was joined. The plaintiffs delivered particulars of demand, of which the following is a copy. "This action is brought to recover the sum of 171. Is., being fees paid on the admission of the plaintiffs as devisees of John Gilbert Royds, deceased, to copyhold premises in the manor of Cheltenham, of which manor defendant Gardner is lord, and defendant Newman is steward ; viz. £ s. d. [162] "Proclamations . . . . . .030 Court fees as on the surrender by the late John Gilbert Royds to the use of his will . . . . . . 2 16 10 Excess of fee on first admittance . . . .068 Court fees on second admittance . . . .336 Homage and crier . . . . . .046 Stamp and parchment . . . . . .150 Court fees on third admission . . . . .336 Homage and crier . . . . . .046 Stamp and parchment . . . . . .150 Court fees on fourth admission . . . . ,336 Stamp and parchment . . . . . .150 Total . . £17 1 0" The action came on for trial at the Gloucester Spring Assizes, 1853, before Williams J. and a special jury, and was in part heard; when a verdict was found, by consent, for the plaintiffs, subject to the opinion of this Court on a special case, which was drawn accordingly, and signed by counsel on behalf of plaintiffs and defendants. The points in question in the cause, as opened by the counsel for the plaintiffs at the trial, and those subsequently submitted on the plaintiffs' behalf to this Court in the said special case, were in effect identical, and were as follows. 1. Whether the lord was bound to admit the plaintiffs, the devisees of John Gilbert Royds, to the four copyhold tenements, parcel of the manor of Cheltenham, of which said Royds died seised, by one admittance, and on payment of one set of fees. 2. Whether the lord waa bound to admit the plaintiffs on payment of one admission [163] stamp. 3. Whether the lord was bound to admit them by two admittances, and, in that case, on payment of what fees and stamp duties. 4. Whether the lord was entitled to require four admittances, and, in such case, upon payment of what fees: and the said special case provided, as to this point: If the Court should be of opinion that the lord wa,s so entitled, but that the fees demanded 8BL.& BL.1M. TRAHERNE V. GARDNER 61 and paid were excessive, then the verdict was to be entered for the plaintiffs for the amount overpaid, and the Court was to have power to refer the fees to the Master. 5. WhBther the steward was entitled to charge any and what fee as on a surrender to the use of the will of the testator. The said special case provided, as to this point: If any- excess taken, the verdict to be entered for the plaintiffs for such excess. 6. Whether the steward was entitled to a separate fee on the admission of each joint tenant: if not, the said special case provided the verdict to be entered for the plaintiffs in respect of a sum of 6s. 8d. charged for each admission of defendant Parry as joint tenant. The plaintiffs^ with a view to the trial, gave notice to the defendants to produce the court rolls and muniments of the manor; and the plaintiffs were fully prepared, from such rolls and muniments, if produced, or by secondary evidence, if not produced, to have supported their view of each of the said points in dispute. The special case, and appendices therein referred to, contained a statement and arrangement of such evidence, and of additional evidence bearing on the same points, the result of further examination of the said rolls and muniments of the manor. The special case did not raise any point for the plaintiffs not taken or intended to be taken at the trial. [164] The briefs used for the plaintiffs at the trial contained a calculation of the fees to which the plaintiffs contended that the steward was entitled, supposing him to be justified in requiring four separate admittances; the result of which differed by only a few shillings from the sum to which the Master adjudicated that the steward was entitled, as after mentioned. The same briefs also contained vivfi, voce evidence, by witnesses present at the trial, in support of the calculation. The special case was argued in this Court in Hilary Term, 1856 (a), when the Court decided for the plaintiffs, on a preliminary objection by the defendants that money had and received would not lie : as to points 1, 2 and 3, for the defendants: as to point 4, that the lord was entitled to require four several admittances, but that there was no customary fee to justify the amount claimed and paid; and that such amount was excessive: and it was referred to the Master to settle the proper fees on the principle of quantum raeruit: as to paint 5, that the steward was entitled to some fee as on a surrender to the use of a will, but the amount thereof was to be settled by the Master: and, ae to point 6, that the steward was not entitled to a separate fee on the admission of each joint tenant. And the Court made the following rule: " It is ordered that the verdict be entered for the plaintiffs for such amount as shall be ascertained by one of tbe Masters of this Court." On the said reference, the Master decided that the plaintiffs were entitled to a verdiet for 91. la 4d. His calculation was as follows. Sums sought to be recovered back. Sums which ought to have been charged. Bums to be recovered back. [165] "Proclamations Court fees on surrender to use of will . Excess of Fee on first admission . Court fees on second admission Homage and crier Stamp and parchment Pees on third admission .... £ s. d. 030 2 16 10 068 336 046 150 336 046 £, s. d. 030 098 nil. 1 7 0 nil. 120 1 7 0 nil ii a. d. 272 068 1 16 6 046 030 1 16 6 046 Stamp and parchment Court fees on further admission . Stamp and parchment 150 336 150 1 2 0 1 7 0 120 030 1 16 6 030 Totals . 17 1 0 7 19 8 9 1 4" Accordingly, the postea was indorsed on the record, finding that the defendants were indebted to the plaintiffs as alleged, and assessing the damages to 91. Is. 4d. The Court, on the motion of plaintiffs, had granted a rule for taxation of costs on the higher scale. The attorney for the plaintiffs, on the taxation, claimed...
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