1851. BRUEFORD V. GRIFFIN and BLANDFORD. THIS In last Hilary Term, a rule was obtained, calling on the defendant Griffin to shew cause why the taxation with respect to his costs should not be set aside, and why the money paid into Court should not be repaid to the plaintiff Lush shewed cause.--The separate taxation of the defendant Griffin's costs is regular The case of Smith v VOL. VI. H H EXCH. May 13. In an action of debt on a penal statute against several defendants, who sever in their pleading and appear by separate attornies, the costs of all need not be taxed at the same time. 1851. BRUEFORD 27. GRIFFIN. Campbell (a) may be relied upon by the plaintiff. There Cooper, one of the defendants, was not present at the taxation of costs; and a rule to review the taxation, and allow him his costs, was refused. It is, however, to be gathered from the judgment of Tindal, C. J., that Cooper had notice; and the decision proceeds upon the ground that he had abandoned his claim to costs. Tindal, C. J., says, "The defendant Cooper had the opportunity of obtaining his costs, if he had chosen to exert himself, when the judgment was signed, and the costs paid to his co-defendants; but he has no right to prejudice the plaintiffs by a second demand." It might, therefore, be well supposed that the taxation was made with regard to all the costs claimed as due. That was an action of assumpsit, and not of tort, as the present is in effect. There is no greater privity between these defendants than there is between them and the plaintiff: neither of them could have compelled his co-defendant to attend to have his costs taxed. [Parke, B.-Watson v. Boyes (b) seems to be in point. There the Court held, that it is not necessary that the costs of both defendants should be taxed at the same time.] M. Smith in support of the rule. The question is, whether, according to the usual practice, a separate taxation, can be supported. The defendants ought to know when the taxation is to take place. The Master may not have all the materials before him at the proper time, if there are two distinct taxations. He might allow a smaller amount of costs, if both sets of costs are before him at the same time. The judgment is entire, and the costs are parcel of the judgment. [Parke, B.—I should have great difficulty in saying that execution could be sued out for costs, until all the costs are taxed; but it does not follow that there can be only one taxation.] The plaintiff might lose the benefit of his writ of error, in case one of the defendants, whose costs might be but trifling in amount, were to refuse to have them taxed. PARKE, B.-This rule must be discharged. I do not see why two defendants, who have appeared by separate attornies, should not have their costs taxed at two separate times. The Master certifies to us, that, according to the general practice of the office, it is not necessary that the attornies of all the defendants should be present at the taxation. The case cited cannot be considered as laying down any general rule; and as the circumstances of that case appear to have been of a special nature, it is not a binding authority in the present case. If any particular inconvenience should arise from a separate taxation, that would form a good ground for a special application to the Court. PLATT, B., and MARTIN, B., concurred. Rule discharged (a). 1851. BRUEFORD v. GRIFFIN. (a) Pollock, C. B., had left the Court. и н 2 1851. May 13. By a deed of the 27th of made between the Duke of B., THE MARQUIS OF CHANDOS v. THE COMMISSIONERS OF THIS was a case stated by the Commissioners of Inland May, 1849, and Revenue, pursuant to the 13 & 14 Vict. c. 97, s. 15, to enable the Marquis of Chandos to appeal to the Court of Exchequer against the determination of the said Commissioners as to the stamp duty chargeable on the deed hereinafter mentioned. of the first part; the Marquis of C., his son, of the second part; and A. G. R., of the third part; after reciting that the Duke was entitled to The deed, dated the 27th of May, 1847, was made between the Duke of Buckingham of the first part, the certain estates Marquis of Chandos of the second part, and A. G. Robarts for his life, with remainder to the Marquis of C., and that he was also entitled to certain other real and personal property, and that the real and personal property was subject to incumbrances amounting to 1,027,2821.; the Marquis covenanted with the Duke to concur in raising, by a mortgage on the property, the sum of 1,100,000l. to be applied in payment of the incumbrances, which, together with the said last-mentioned sum, or so much thereof as should be raised, whether the Marquis had then entered or should thereafter enter into any covenant for payment thereof, should be considered as the debt of the Duke, which he was bound to pay in exoneration of the Marquis, and that the whole of the said incumbrances, and so much of the said sum of 1,100,000l. as should be raised, till the aggregate amount should be reduced to 500,000l., should be considered as the Duke's debt; and that, after such reduction, the remainder of the said incumbrances, and so much of the said 1,100,000l. as should be raised, should be considered as primarily chargeable upon such of the estates as were then, or should be thereafter, charged therewith in exoneration of the said debt. That the Marquis had concurred with the Duke in raising, by mortgaging &c. the said estates, and on their personal security, to the amount of 467,1157. 10s., which was so raised as a part of the said sum of 1,100,000l., with the intention, on the part of the Marquis, that the same should be applied towards the discharge of the said incumbrances. That it was considered by the Marquis, that, as between himself and the Duke, the latter was primarily liable for the payment of the whole of the said debts, constituting the aggregate sum of 1,464,9597. 11s. 11d.; and that, under the circumstances, the Duke had applied to the Marquis to concur with him in raising monies greatly exceeding the sum of 1,100,000l. agreed to be raised; to which request the Marquis had declined to accede; but that the Marquis had proposed to the Duke that the Marquis should take to and absolutely purchase from the Duke all the equity of redemption, estate, title, &c. to the real and personal property comprised in certain schedules to the deed; to which proposal the Duke had acceded. That the Duke granted to A. G. R. all the lands, to hold the same subject to the charges, in trust for the Marquis; and that the real and personal property should be the primary fund for satisfying the debts and liabilities. There was also a covenant by the Marquis that he would apply all the monies that should come into his hands in respect of the said estates, chattels, &c. towards the relief and indemnification of the Duke. This deed having been stamped with the duty of 17. 15s., and nine progressive stamps of 17. 58. each, and the opinion of the Commissioners of Inland Revenue having been desired on the question, under the 13 & 14 Vict. c. 97, they considered that the deed was chargeable under the 55 Geo. 3, c. 184, with the ad valorem duty of 10001., and with nine progresive duties of 1., as a conveyance upon the sale of property, the amount of the consideration money as expressed on the deed exceeding 100,000l., but stated a special case for the opinion of this Court:Held, first, that the Crown was entitled to the smaller duty only; and, secondly, (dissentiente Pollock, C. B.), that the counsel for the appellant was entitled to begin; and, thirdly, by the whole Court, that the counsel for the Crown had the right to a general reply. 1851. MARQUIS OF v. ERS OF INLAND of the third part. It appeared from the recitals of this deed, that various estates, called the Buckingham estates, stood limited to the use of the Duke for life, with remainder to such uses as the Duke and Marquis should jointly COMMISSIONappoint. The Chandos estates were limited to the use of the Duke for life, with remainder to the use of the Marquis for his life. The Duke was also entitled to certain freehold, copyhold, and leasehold estates, called the unsettled estates, and to plate, jewels, books, &c. The estates, chattels, &c., were subject to incumbrances mentioned in the second schedule to this deed, amounting to 1,027,2821. An arrangement had been entered into, by a former deed, between the Duke and the Marquis, in pursuance whereof they had agreed to enter into the covenants contained in that deed. It was then witnessed, that the Marquis covenanted with the Duke to concur in raising, by a mortgage upon the estates or upon the chattels, the sum of 1,100,000l. to be applied in payment of the said incumbrances; and further that, as between the Duke and the Marquis, the whole of the said charges and incumbrances, and the said sum of 1,100,000l., or so much thereof as should be raised, and whether the said Marquis had entered or thereafter should have entered into any covenant or other personal engagement for payment thereof, should be considered the debt of the Duke, which he was bound to pay in exoneration of the said Marquis; and the whole of the said charges and incumbrances, and so much of the said sum of 1,100,000l. as should be raised, until the aggregate amount thereof should be reduced to the sum of 500,000l., should as between the Duke and the said estates be considered as the debt of the said Duke, which he was bound to pay in exoneration of the said estates; and that after the said charges and incumbrances, and so much of the said sum of 1,100,000l. as should be raised, should be reduced. to 500,000l., the remainder of the said debts and incumbrances, and so much of the said sum of 1,100,000l. as |