CASES IN HILARY TERM, space of one year next after his death; it was thought, that the word "appurtenances" there, should be construed in its strict legal sense. This, however, is not a case in which the word "appurtenances" in one part of a will, is to be contrasted with appurtenances in another part of it, and in which the word "appurtenances" only is introduced; but the expression here employed is, "the rectory or parsonage, with the messuages, lands, and all and singular other the premises thereunto belonging, with their and every of their rights, members, and appurtenances;" thereby clearly shewing, that the word "belonging" was not intended to be used or taken in the strict legal sense, as the word “appurtenances." It must be observed, too, that in this devise, the testator used the words rectory and messuages, whereas, strictly speaking, there was but one messuage belonging to the rectory, viz. the parsonage house; and if there were any other, which was not strictly a part of the rectory, it is the Shoulder of Mutton piece. Considering therefore, that the lands in question have been always occupied together with the rectory; as well as the terms used in the different leases in this case, and particularly that upon which this action is founded, viz. that of 1804; the Court are of opinion, that, under the general words "thereunto belonging,” all those lands passed, which are described and enumerated in the deeds of lease and release of 1789; and consequently, that the plaintiff is entitled as assignee of the reversion, and that the verdict taken for him must stand. Judgment for the plaintiff. IN THE FOURTH AND FIFTH YEARS OF GEO. IV. 1824. STUBBING and Another, Executors of HOOPER, v. Ham MOND. ob to MR. Serjeant Taddy on a former day in this Term tained a rule nisi, that the plaintiffs might have leave discontinue this action without payment of costs. He founded his motion on an affidavit, which stated, that the plaintiffs had found a bond among the papers of their testator, which had been given to him by the defendant, and conditioned to secure to the testator the sum of 500l. with interest; that after an application to and refusal by the defendant to pay the bond, the present action was commenced; that the defendant pleaded non est factum, and a set off, on which issue was joined, and notice of trial given for the last Michaelmas Term, but which had been since countermanded, as the plaintiffs had taken the opinion of counsel, who thought that the set off would furnish a good defence, and he accordingly advised the action to be discontinued. Mr. Serjeant Peake now shewed cause, and submitted, that the plaintiffs could not be allowed to discontinue without payment of costs; and that at all events it was in the discretion of the Court, whether they were liable to the payment of such costs or not. In Harris v. Jones (a), the Court laid down a rule, that an executor should not have leave to discontinue without costs, where he had knowingly brought his action wrong; and in Melhuish v. Maunder (b), this Court refused to allow executors to discontinue on payment of costs, unless good grounds were shewn. And here, as the plaintiffs commenced their action without previously making the necessary enquiry as to the nature of their testator's claim on the defendant, or (a) 3 Burr. 1451. S. C. 1 Sir W. Black, 451. -(b) 2 New Rep. 72, Thursday, Where the plaintiffs as ex ecutors, brought an ac tion on a bond given by the defendant to their testator, to which he pleaded a set off, which the plaintiffs were advised by counsel, after notice of trial had been giv en, would constitute a good defence to the action:-The Court allowed them to discon tinue without payment of costs. 1824. STUBBING v. HAMMOND. whether it had been satisfied or not; they had put the lat ter to an unnecessary expence, and were consequently not entitled to the favour or indulgence of the Court. Lord Chief Justice GIFFORD. This is certainly an application to our discretion, and there appears to have been nothing vexatious in the plaintiff's having commenced an action against the defendant, on a bond which they had found among their testator's papers; and it does not appear that the defendant gave any satisfactory account to the plaintiffs, as to whether it had been satisfied or not, when the application was made to him for payment; and as he pleaded non est factum, and a set off, which latter plea the plaintiffs afterwards discovered to be well founded, and as constituting a good defence to the action, I am of opinion, that, under the circumstances, they are entitled to discontinue without costs. Mr. Justice PARK. The general rule laid down in the cases of Harris v. Jones and Melhuish v. Maunder is, that an executor cannot discontinue without costs, where he has knowingly brought his action wrong, or acted vexatiously; but here, the plaintiffs had a right to bring an action on the bond in the first instance, and they could not know the nature of the defence, until the defendant had put in his pleas. Mr. Justice BURROUGH concurring END OF HILARY TERM. Rule absolute. AN INDEX TO THE PRINCIPAL MATTERS. ABATEMENT. 1. 1. Where several parishioners at- - Page 20 ACCOUNT STATED. See COSTS, 1. ACKNOWLEDGMENT. See LIMITATIONS, STATUTE OF, 1. ACTION. See ADULTERY. ASSUMPSIT. LIMITATION OF ACTIONS. No action can be supported for ACTION ON THE CASE. ATTORNEY, 6. SHIP, 4. An action on the case cannot ADULTERY. 1. Where, in an action of assumpsit by a trustee for the breach of an agreement, by which the defendant and his wife had agreed to live separate, and the defendant had stipulated to pay the plaintiff a certain sum weekly, for the use of his wife, in consideration of which, the plaintiff undertook to save the defendant harmless from all debts she might contract on his account; and the plaintiff sued the defendant, to recover sums paid by the former on account of such allowance; and declarations of the wife were received in evidence at the trial, to shew that she had been living in adultery previously to and at the time the payments in question were made; and the jury found a verdict for the defendant generally, as well as on the ground of adul |