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![handle is hein.slavery/ssactsengr0737 and id is 1 raw text is: PLAYER V. FOXHALL2
many years by the actual occupier. The principle of the decision in Quarrel v.
Beckford, fully authorises the Court in directing annual rests to be made in this
case.
[536] It was said, that, if it were proper that annual rests should be made, a
direction to that effect would have been found in some anterior order. It seems to
me, that it was not thought convenient to give such a direction, till it was known
when the mortgage debt was paid off. And my opinion is, that, in this stage of
the cause, and under the circumstances appearing in this case, the Court ought
now to direct annual rests against the mortgagees in possession from the time the
mortgage money was paid off.
On the other hand, I apprehend that it is not now competent to me either to
give costs against these defendants, or to deprive them of their costs. In Quarrel
v. Beckford, the original decree (and it seems at that time to have been known that
the mortgagee had been paid his mortgage money), directed the taxation of the
costs of the defendant, but not their actual payment. When the cause came on
for further directions, Sir Thomas Plumer thought that he was not at liberty to
consider what ought to be done with any part of the costs, even of those costs which
had been created by the improper or mistaken defence of the mortgagee; and
that the direction to tax the Defendant his costs of the suit, though unaccompanied
by any direction as to payment, gave him those costs. My present impression is,
that Iam bound by the direction to tax the costs of Ann Ness and her personal
representatives, which is contained in the former decree.
His Lordship did not afterwards express any alteration of opinion on the question
concerning costs.
The decree ordered the Master to tax the subsequent costs of John Ness, Mary
Ness, George Brown, and [537] Elizabeth (1) his wife, from the time to which they
had been taxed under the decree of the 16th of June 1819 to this time. Directions
were then given, that the costs of John Ness and Mary Ness, including the costs
also which they had incurred jointly with Elizabeth Ness, should be retained out
of the sums reported due from them ; that the costs of Ann Ness should be set off
and allowed in part discharge of the sum certified to have been due from her in
respect of the rents and profits received by her or of the occupation rent accrued
due in her life time ; and that the subsequent costs of George Brown and Elizabeth
his wife should be paid by the Plaintiffs.
The following were the directions of the decree with respect to rests And it
is ordered that it be referred back to the Master, &c., to make annual rests in the
account of the rents received by, and on the occupation rent accrued due from,
the late Ann Ness in her life time ; and also on the rents received by, and occupation
rent accrued due from, the said Defendants, or any of them, since the death of Ann
Ness, and to compute interest after the rate of four per cent. per annum upon such
rents and occupation rents respectively ; and it is ordered, that the Master do
distinguish and state what part of such interest hath become due from the said
Defendants, or any of them since the death of Ann Ness.
Further directions and subsequent costs were reserved.
(1) Elizabeth Ness, one of the executrixes of Ann Ness, had intermarried with
George Brown. Neither she nor her husband had received any of the rents or
profits, or been in the occupation of any part, of the mortgaged premises.
[538] PLAYER v. FOXIiALL. Rolls. June 26, 29, 1826.
[See Ferguson v. Gibson, 1872,.L. R. 14 Eq. 385 ; Ex parte Campbell, 1880, 16 Ch.
D. 200.]
Qaacre. Whether the heir of the obligor in a bond, being one of two surviving exec-
utors of the obligee, is entitled to retain the amount of the bond out of the produce
of the estate descended to him I If, in a suit instituted by creditors, he accounts
for the produce of the real estate in the Master's office, and he and his co-executor
prove the bond debt under the decree, lie is not entitled to retain.
Richard. Samuel White died intestate as to his real estate, and indebted in con-
siderable sums both by specialty and simple contract.
Foxhall took out administration to him with his will annexed. The real estate
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I RUSS. 536.](ViewImageLocal?handle=hein.slavery/ssactsengr0737&div=1&collection=&method=preview&ext=.png&size=3)