1 r^ '^m\mi^ m jjjjiUJ ftnuiuoy^ <<5U3NVS01'^ ^tfOdllVJJO'i^ '^.I/OJIIVDJO'^ ^OF-CAllFOff^ =■3 ^ o , -< ^iUBRARW/^ %oim^-ff!(^ iJjillBRARYOc 5 .^yM)NIVER% •<(3l]3NVS01'^ ^•lOSANCfl^^ I o t(J\EUNIVER% "^■fiUOKVSOl^ ^lOSANCEU:r^ "^/iajAJNdiftV^ ^OFCAUF0R<>, ^OFCAUFOR^, ^OiUivaani^ ^OAiJvaani^ A\IEUNIVER% <(5U3IWS01^ ^lOSANCElfj^ o "^/iaaMNniftv^ CO St? ^^tUBRARYO/r ^lUBRARYO^ § 1 ir^ s ^5!i\EUNIVER% ^iOJITVDJO^ %OJI1VJJO'^ '^JJllONVSOl'^ ^•lOSANCElir. %ajAJNn3WV^ ^^^lUBRARYQ^ A5^HIBRARY0c. § 1 1/-^ ^ ^.aojiivDjo'^ ^Qimyi^"^ ^^OFCAIIFOR^ ^ vAJUAINnJftV ^lOSANCEl£r» t/'/tll3JO^ ^OFfAllFOff^ o ^ V/ _ Ig ^OFCAUFOR^ ^^MEUNIVKij^ ^lOSANCEl^;;^ "'^rninww.cni:^'^ ■'S'/cuniun.niV^ <),OFCAUF0R(^ ^OFCA1IFO%, ^ .^MFUNIVERJ/A. "^JJUDNVSOl^ AjciosANcncr>, I ^5^lUBRABYa^ ^lUBRARYO/. . 5ME UNIVERy/A ^lOSANCnfj> ^iirr^ ^iifT^ i^cxT^ t/Or^l ^ojiwDJO'^ ^aojnwjo'^ 1= :^ %JI1V3J0^ '^AOJIlVDJO'f^ <(5UDNVS01^ ■^/^a3AIN(Uk\V' vK-lOSANCEli-x^ AS^KkWm/i/. ^OFCALIfORfc, .^WEUNIVERy/A o V,Of CAllFORfc, x-OFCAllFOi ^oAMvaaiii'^ ^OAavaaii ^lUBRARYO/ ^OFCAIIFOR^ ^OAavaan-i^ ^iosAj)cni^> ■^AMAlNll-3ttV^ v/sa3AINfl-3l\V %)JI1VJJ0^ .^w^uNIVERVA 5?v i^ci o 5 ' ■'^iSajAiNn^AV^ %\^ ^•lOSANCfU:r^ ^OF- '^m ^ I M^ L: >- < § 1 <<^ * A-OFCAllFOff^ From the Library of Professor David Mellinkoff Who donated his collection TO THE UCLA School of Law Hugh & Hazel Darling Law Library August 1999 "Cleansed of words without reason, much of the language of the law need not be peculiar at all. and better for it." The Language of the Law BY David Mellinkoff Aavaanv?^ ioswicFi£r> ;a]MNn3WV^ lOSANCflfj^. UJIlVDJO'f^ aWFUNIVFRS/a ^•lOSAMCFl o =5 o ^XHVHflnAV^ i'flJHVXflil'jV^ .^WEUNIVERJ/A ■^mvm^x^ ^sVlOSMEl "^/MJMNIll ^•lOSANCElCr^ ^/saiMNnmv^ ^^^•IIBRARYO/, :5 1 \r^ » ^.VOJIlVJjO'^ .^l-UBRARYQ^^ •^3 1 1/— ' S .5jt\FUNIVFRr/A ^lOSANCFUr^ v/c«qMNniWV ^CFCAllFORi^ ^.OFCAllFOff,!^ >&AHV«fllll^ ^^ME■UNIVER% 5 — =3 o ^lOSANCEl/j-^, > =; ^OFCAIIFOR^ ^;OFCAllFOi >'rtlHV)Jfln: ^ '%,i/njn>njc\'>^ .^MEUNIVERJ/A I- -' •^TJinMvcni'^ ^lOSANCFl, i ^ ■'I'/fHUINn-ll WE all knowing the great Learning and Ability of the Author do allow and approve ol the Printing and Publifhing the Reports oi Willi am Fecre Williams^ late of Grap Inn^ Efq; June 24. 1740. Hardwicke C. W. Lee, J. Verney, J. Willes, J. Comyns, F. Page, Law. Carter, E. Probyn, J. Fortefcue A. W. Fortefcue, W. Chappie, T. Parker, M. Wright, Ja. Reynolds. {/i'////-u/m^- . Vi '/i,//c/- Cyutc- yn/iJ- Ot'f^ 7'' f '/''<' •-^I't/Zic I J.',' J/. REPORTS CASES Argued and Determined I N T H E 5|i0l) Court of CJancerj), AND Of fome fpecial CASES Adjudged in the Court of KiNGs BENCH: Collc(5led by William Peere Williams^ Late of Grays Inn^ Efq; 3ltt Xlbo moltttnes* VOL. I. Publifhed with Notes and References, and Two TABLES to each VOLUME; one of the Names of the Cases, the other of the Principal Matters: By his Son William Peere Williams, of the Inner I'emple, Efq; In the SAVOY: Printed by E. and R. Nutt, and R. Gosling, (Alfigns of Ediv. Sajei-y Ei'a;) for C* €)0tiO|ne in Gra/s Inn. M DCCXL. • \ To the Right Honourable The Lord HARDWICKE, Lord High Chancellor of Great Britain. My Lord, I Here prefume, under your Lord- ihip's Patronage, to offer to the Publick the following Reports, which might have appeared with more Advantage, had the Author lived to put them to the Prefs : But your Lordihip will, I hope, be the more readily induced to pardon this Addrefs, that the Great Name and Reputation of the Patron may pro- ted: the Work from the Cenfure to which it would other wife be ex- pofed. A I The DEDICATION. I know your Lordihip's Senti- ments, and the Value of your Time too well, to attempt a long Difcourfe in the ufual Stile of Dedications: Give me Leave therefore only to add, that how Great foever the Number may be of thofe who pro- fefs to Refpedt and Honour you, there is not one that does fo with more Sincerity than. My Lord, Tour Lordpips Mojt Obedient Humble Seri:ant^ William Peere Williams. TABLE O F T H E NAMES of the CASES TO THE Firft VOLUME, Alphabetically difpofed, in fuch a double Order, as that the Cases may be found by the Names either of the Plaintiffs or Defendants. N. S. Where z'-erf/is follows the Firft Name, it is that of the Plain* tiff i where md, it is the Name of the Defendant. ACherly v. Vernon, Pa^e 783 All Souls College a Cod- drington. 597 Ambrofe c. Ambrofe. 3 2 1 Anglefea (Earl of) ajid Phipps. 696 Anonymus 267, 300, 301, 327, 411, 475, 495, 522, 523> 535, ^48 Afhton and TraSbrd. Ta^e 415 Attorney General c. Mayor of Co- ventry. 306 1'. The Brewers Company.375 'V. Wyburgh (j rJ\ c. Grant, c. Hudfon. c. Sutton, (jc. Auftin and Tate. 599 669 674. 75+ 264 fi. A Table of the Names of the Cases. B. Babington c. Greenwood. Tage 530 Bacon c. Clerk. 478 Bagot c. Oughton. 347 Bagwell c. Dry. ' 7o<5 Balch e-. Waftal. 44 J Ball /^;?^ Watts. io§ Bale V. Coleman. 142 Bamficld c: Popham. 54 Barker rt;/^ Blunden. 634 Barkhani ^;/^ Brown. 652 Barrington (Sir John) a?!d Shales. 481 Barnadifton trnd Career. 505 Baflet V. Clapham. 358 Baugh c\ Holloway. 5 57 Beale -v. Bealc. 244 Bcaufori: (Duke of) c: Berty. 703 Beaufort (Duchcfs of) and Lady Dowager Granville. 1 1 4 Beaumont and Darbifon, on the De- mife of Long. 229 Beckiey oc Ncwisncl v. - Beck c». Rebow. Benger c. Drew. Benlbn and Turron. Benfon v. Benfon. 92 5'4 781 496 X30 Berty aj/d Duke of Beaufort. 703 Bewdley (Ballivi & Burgenfes) O' Regina. 207 Bindon (Lord) c Earl of Suffolk. 96 Birt and Clifton. 678 Blackboroush c. Davis. 41 Blackborn 1'. r'ewer Edgely. 600 Blandy c. Widmorc. 324 Jilunden c. Barkei. 634 Bothomly c. Lord Fairfax. 334 Bofvil c. Brandcr. 45 ^ Bowers c. J,ittlcwopd. 594 Brewers Company ai'd Attornc}' General. 376 Brockman c. Honywood. 328 Broderick ^. Broderick. 'Page 239 Brooks ^;;^Starkey. 390 Brown c. Litton. 140 Brown c. Barkham. 652 Bullas and Watts. 60 Burdet (Sir Robert) c. Hopegood. 486 Burlington (Countefs of) and Car. 228 Burrard and The King. Burnet c. Theobald. Burridge i: Bradyl. Butler c. Dimcomb. C. 43 J 609 127 448 Cain & Jeffs and Fountain, 504 Can c Can. 567 Can 'V. Can. -72 3 Car c Countefs of Burlington. 228 Car e w <7;/^ Philips. 117 Carter c\ Barnadiflon. 505 Chancey's Cafe. 408 Chaplin €. Horner. ■ 4^1 Chapman and Forth. 66^ Chafe and I^ewis. 620 Chewton(the Hundred of) /i//^ Price. 437 Cheyney (Lord) and Pierpoint, 488 Child (Sir Cafar) c. Frederick. 266 Chriftian ©. Corrcn. 32^ Church and Throgmorton. 685 Churchill c. Lady Hobfon. 241 Ciagget and Saunderfon. 657 Clapham and BafTet. 358 Clarendon (Earl of) c. Hornby. 446 Clements c. Scudamore. 63 Clerk and Bacon. 478 Clifton c. Birt. 678 Coatfworth and Dalfton. 73 1 Coddrington ajid All Souls College. 597 Colchcfter (Mayor and Aldermen of) c. 395 Cols- A Table of the Names of the C ksus. Coleman and Bale. T^ge 142 Coleman v. Winch. 775 Collins c. Plummcr. 104 Comber's Cafe. 7C6 Cook £'. Oakley. 302 Cvook and Idle. 70 Copeland v. Stanton. 414 Copeman v. Gallant. 314 Copley c. Copley. 147 Corren and Chriftian. 339 Cottle and Young. loi Coventry (Mayor of) ^«^ Attorney General. 306 Cox's Cafe. 29 Cud c. Rutter. 570 Dagley c. Tolfcrry. 285 Dalfton a Coatfworth. 73 1 Danvers ^7/^ Waring. 295 Darbifon, on the Demife of Long, 229 83 698 41 286 429 tifid Beaumont. Davenport and Elliot. Davis's (Doftor) Cafe, Davis and Blackborough. Day c. IVigg. Dedire and Freemoiilt. Devon (Duke of) and Metham. 529 Dighton and Tomlinfon. 149 Diflier c Di flier. 204 Done's Cafe. 263 Dowgat and Dean and Chapter of Dublin. 348 Dewier and Higgins. 98 Drake t'. Robinfon. 443 Drew ^;/^ Ben ger. 781 Drury c. Smith, 404 Dry and Bagvvel. 700 Dublin (Dean and Chapter of) c. Dowgat. 348 Dullidge Hofpital and Taylor. 655 Duncombe and Butler. 448 Dyofc V. Dyofc. 305 E. Eakins v. Eafl: India Company. Page 19'y Edgeley(Hewer)«;;^Blackborn. doo Elkin and Pinbury. 563 Elliot c. Davenport. 8? Elfe c. Osborn. 387 Evans atid Marfh. 66^ Eyre and Longford. 740 !■. i Fairfax (Lord) rt;; c. Saver. Hyde c. Parrat. 198 483 29c 674 332 534 I I. Jago and Scclcy. Jacobfon c. Williams. I 389 382 James £:v parte. Idle c. Cook. Jenner c. Harper. Jenner c. Morgan. Jennifon (Sir Matthew) Lexington. Jennings and Nottingham. Jekyl & Albone and Wind. Jones and Lord Lanesboro'. Ireland and Hewit. "J. ^age 610 70 247 392 Lord 555 23 572 325 426 K. Kent (Duke of) & Fletcher and Orlebar. 737 Kentifh c. Newman. 234 Knightley and Farrington. 544 and Bifhop of WinchcPcr. 405 Knight L. Lamphigh c. Lamplugh. I-anesboro'(Lord) c. Jones. Lavington and Floyer. Lawfon c. Lawfon. Lee and Harris. Lee Ex parte. Lcighton c Leighton. Ill 325 26S 441 482 782 671 526 87 ^20 Le-Fit a. Le-Bar. Legate c. Sewel. Lewis c. Chafe. Lexington (Lord) and Jennifon 555 Lin gen c. Sowray. Littlewood and Bowers. Litton V. Litton. Litton and Brown. London (City of) and London (Bifhop of) Longford c. Eyre. Long c. Beaumont, c. Short. \Vcbb. 172 594 541 T40 Staftbrd. 428 Long 527 740 229 403 LoyJ A Table of the Names of the CkZE s. Loyd 'V. Read. Lucas and Willis. M. Mackerncfs Ex parte. Marlow c. Pitfeild. Marfli "J. Evans. Mafters c. Mafters. Maxwell (Sir Geo.) Montacute. Mead and Oneal. 'Page ^07 472 and 260 558 668 421 Lady 6i8 693 Meers (Sir Thomas) c. Lord Stour ton. Metham c. Duke of Devon. Meyrick and Heme. Micklethwaite and Perkins. Middleton v. Lord Onflow. Miles v. Williams. Mift ^;;^ Holditch. Mitchell & Owen v. Fellows. Mitchel 1'. Reynolds. Mocatta c. Murgatroyd. Mohun (Lord) and Duke of Ha- milton. 1 1 8 Montacute (Lady) 'v. Sir George Maxwell. 6^8 Morgan and Jenner. 392 Murgatroyd and Mocatta. 393 146 529 20I 274 768 249 81 181 577 N. Naldred v. Gilham. Newland (Sir George) & Becklcy 2'. 92 Newman and Kentifli. 234 Nichols c. Hooper. 198 Northey v. Strange. 3^0 Nottingham -v. Jennings. 23 Nut and White. 61 O. Oakley and Cook. P^ge 302 Oncal and Mead. 593 Onflow (Lord) and Middle:on. 768 Onions v. Tyrer. 3^3 Orlebar a Fletcher & the Duke of Kent. Osborn and Elfe. Oughton and Bagot. 737 387 347 Owen & Mitchel and Fellows. 8 P. Pain's Cafe. Palgrave arid Wingrave. Parrat and Hyde. Penrice and Lord Rockingham. Percival and Heath. Perkins z\ Micklethwaite. Petit v. Smith. Pet's Cafe. Philips 'V. Philips. Philips 1'. Carew. Phipps v. Earl of Anglefea. Pierpoint c. Lord Cheney. Pinbury o. Elkin. Pinke and Hinton. Pitficld ^w^ Marlow. Plume a Beale. Pleydell v. Pleydell. Plummer and Collins Pool V. Sacheverel. Pollen c. Sir John Huband. Popham and Bamficld. Poolcy c. Ray. Powell and Rawlins. Prat and Fawks. Price c. The Hundred of Chew Price a?jd Howell. P)'e and Gorge. 439 401 I 177 682 274 7 25 34 117 696 488 565 539 J58 388 748 104 ^75 751 54 355 297 593 ton. 437 291 128 Q: A Table of the Names of the Cases. a" Queensberry's (Duke of) Cafe. Tage 582 R. Ratcliff c. Roper. 420 Rawlins c. Powell. 297 Ray and Pooley. 35J Read md Loyd. doy Rebow and Beck. 94 Regina c. Ballivos & Burgenfes dc Bcwdley. 207 Rex c. Burrard. 43 5 Reynolds and Mitchell. 181 Richardfon c. Spraag. 434 Richmond c. Tayleur. 734 Robinfon and Drake. . 443 Rockingham (Lord) c. Penrice. 177 Rod c. iCayter. 360 Roper and Ratcliflfe. 420 Rutter and Cud. 570 s. Sacheverel and Pool 675 Sandys 2'. Sandys. 707 Salkeld Ex parte. 5 6° Savile 1'. Savilc. 745 Savile c. Blacket. 777 Saunderfon v. Clagget. 657 Szytv and Hughes. 534 Scudamorc and Clements, 63 Scale f. Scale. 290 Seely c. J a go. 389 Sew'ell and Legate. 87 Shales c. Sir John Barrington. 481 Short o. Wood. 470 Short and Long. 403 Smith and Petit. 7 Smith ^/7^ Drury. 4^4 Ta-,t 237 IC 172 434 378 428 414 390 34^ Smith Ex parte. Smith and Twaites. ^owray and Lingcn. Spraag and Richardfon. Squib c. Wyn. Stafford c. City of London Stanton and Copeland. Starkey c. Brooks. Strange and Northey. Stourton (Lord) and Sir Thomas Meers. 146 Story & Bell and Wood. 781 Suffolk ( Earl of) and Earl of Tho- mond. 4^51 Suffolk (Earl of) and Earl of Bin- don. 96 Sutton & Pa^man and The At- torney General. 754 T. Target i\ Gaunt. 452 Tate c. Auftin. 264 Tayleur ^//^ Richmond. 734 Taylor . Nutt. 61 Whitmore and Hartop. 681 99 445 60 108 527 132 701 Wiburgh and Attorney General. Page S99 Widmore and Blandy. Wig and Fiflier. 324 14 137 472 26s Williams (Lady) c: Wray. Williams and jacoUCon. Williams and Miles. Willis c. Lucas. Wilfon and Tucker. Winchefter (Lord) a?.>d Finch. 277 Winchc/lcr (Bjfliop of) z: Knight. 406 Winch and Coleman. Wind c. Jekyl & Albone. Wingrave and Palgrave. Winningron v. Foley. Wood c. Story & Bell. Wood and Short. Wray and I-ady Williams. Wray and GiUet. Wright and Goouright. Wyn and Squib. Y. 775 57 2- 401 536 781 470 137 284 3P7 378 Young c. Cottle. lOI E R R J T J. Page Vol. I. 21. Line 2. after Tenancy add /« Common. 25. 1. 6 in the Margin, tielt Ante Cox's Cafe. 2^1. laft 1. in the Margin, for Executor r. Trujlee. 361. 1. 26. for Remainder appointing x. appointing the Remainder. 441.1. 22. after aty zdd /ucb, a«d after Gj/?, /V. 471. 1. 3. in the Margin, for Jtite r. Po/l. Forth verfus Chapman is mifplaced. 527. 1. 29. for Scite r. So/7. <;96. 1. 12. after though add nothing that he /wean catf hi Ei'ideme for him. Page Vol. II. 59. Line 13. dele Pojihumous. 229. 1. ^o.foir Hotliiigihead r.Motlerfkead. 231. 1. I. after Wife add i>jithout Ifue Matt. 301. in the Note, before Amercementi add Ro.al. 308. laft I. but 3, for Exemlor r. Executon. 364. in the Margin, for 1722 r, 1728. 596. 1. 17. after Deht :idd of. DE D E Term. Pafch^^ 1695. Hyde verfus Parr at &f af. cafe i. o Lord Keeper N E Hyde of Hoddefdon {in Com. Hertford) by °"^'""** Will dated — September 1^87, {inter al) de- ^ ^''"■^^'' vifed his Houftiold Goods in his dwelling Houftoi? Houfe at Hoddefdon unto his Wife Marga- ^oo'^yo'^'s ret Hyde for her Life, and after her Death, to his Son Life, and af- •Jofeph Hyde, and died, having made one Parrat, his Son [."so^'^'-^he in Law, Executor. The Son Jofeph Hyde brought his Court ai- Bill in Equity againft Margaret Hyde and Parrat, to g^od'^Deil,; have an Inventory of thete Goods ; and that Margaret over ; and Hyde ihould give Security, that they, at the Time of Xml i\i her Death, Ihould be forth-coming to the Plaintiff, aid ^iie Devife 1 • 1 •! 1 ' had been on- not be mibeziled. XyoUh^We of the Goods to the Wife for Lif». The Caufe coming on to be heard before Baron Povpel, he referved it for the Opinion of the Lord Keeper Sommers, whether this Devife over of the Goods was void ? Whereupon the Caufe was heard before the Lord Keeper, when the only Qiieftion was, Whether this Devife of the Goods to one for Life, with Re- B mainder De ferm. Pa^chce, 169^. malnder over, was not void as to the Remainder, it not being by way of U/^? And I argued, that this Devife over was void ; in- fifting, F/Vy?, upon the Reafon of the Thing : Secondly, upon the Authorities in Point: And Thirdly^ that if fuch Devife over was void at Law, there was no Rea- fon that Equity lliould fupport it, or, in this Cafe, vary from the Law. Even in the Cafe of a Chattel Real, where it has been devifed to one for Life, the Remain- der over, fuch Remainder has formerly been held void, as in 'Dyer 74, and in Child and Bayleys Cafe, Cro. jfac. 461. where it is faid by the Court, that if Mattheiv (a) 8 Co. Manning?) Cafe {a) had been Res Integra^ the Con- flruftion there made would hardly have prevailed : But lince it had been adjudged, they would not di- fturb it. Now there is not near fo much Reafon to fupport a Devife of a perfonal Chattel to one for Life, with Remainder over, as there is to fupport a Devife of a Chattel Real, made in that Manner : For, Firjl, Perfonal Chattels are liable to be loft, ftolen, or burnt: But Lands, or other Things, of which real Chattels confift, are not fubjeft to fuch Cafualties ; and therefore no Reafon that the one fhould endure fo large a Limitation as the other. 94. b. Secondly, Out of a Chattel real lefler Eftates or In- terefts may be derived; as Leftee for Years may make a Leafe at Will, or an under Leafe for Years, and grant the Remainder or Reverfion over ; but the In- tereft of a perfonal Chattel cannot be fo divided ; nei- ther (rtriftly fpeaking) can a Man be faid to have an EJlate in a perfonal Chattel ; for that which is called an Eflate in Lands and Tenements, is termed a Property (and not an Eftate) in perfonal Chattels ; the Law conlidering the firft as permanent, the other as tem- porary and precarious. It is true, the Books fay, If I 4 deviie De Term. Pafch^, 1^9?. 3 devlle the Vfe of a perfonal Chattel to one for Life, and after to another, this Devife over is good: But the fame Books aUo fay, that if the firft Devife be of the Goods tbemfelves (as in the principal Cafe) the Devife over is void ; and there feems to be fome Reafon, from the Rules of Law, to maintain that Diverlity ; for where the Goods themfelves are devifed to one for Life, and after to another, the Devife over, ac- cording to the Rules of Law, cannot take Effe£l ; the Devife or Grant of a perlonal Thing to one for an Hour or Minute, being a Gift for ever, and an abfo- lute Difpoiition of the intire Property to the firft Per* fon. But where the Devife is only of the Ufe of the Goods to one for Life, and after to another ; here the firft Devifee has not the Property of the Goods, but only a fpecial Intereft in them ; and ftill there re- mains a Property, which may be given over. As for Authorities, there are as many upon this Point, as in any Cafe in the Law. In 37 Hen. 6, (abridged In.Bro. Devife 15.) the Devife was, that A. fhould iije the Book called the Graile for his Life, and that afterwards B. fhould ufe it ; and it was agreed that the Devife over was good ; the firft Devife being of the Jjfe only ; but (fays the Book) if the firft De- vife had been of the Thing itjclf to one for Life, and after to another, then the Devife over had been void ; and the Lord C. J. Brook does fo much approve of this Diftin£lion, as in his Abridgment of the Cafe to call it, -valdc bone Diver fit ie : And the fame Cafe is cited by the luOX^C.^. Fopbam. In 'Plorvd. 521, 522. {Weldon verfus Elkington) and in 5 3 Hen. 8. (as appears in Brook's Nen> Cafes, fe6l. 3 3 4.) the fame Difference is taken ; and fo in 2 Ed. 6. Brook's New Cafes, feH. 388. In Owen 3 3. (7 E//^.) this Diverfity is taken betwixt the Devife of the Ufe of the Thing, and of the Thing it felf, and fo far prevailed, that the Lord Fit^- James, who was Chief De Term. Pafch^, i6()^. Chief Juftice of England, did by his Will devife the Ufe of his Jewels and Plate to Nicholas Fit^-James and the Heirs Male of his Body, (which might indeed be ftraining it fomewhat too far,j yet in that Cafe, the Lord Dyer and the Court held, that Nicholas Fit^- James, the Devifee, had no Property in the Jewels or Plate. In 1 Rolfs Ah. 6io. (5 Jac. i .) it is agreed per Curiam, that in Cafe of a Devife of a perfonal Chattel to one for Life, the Remainder over, this Devife over is void. In Cro. Car. 346. (9 Car. i.) Lord Haftings verfus Sir Archibald Douglas, the fame Diftin£lion is made betwixt the Devife of the Ufe of a perfonal Chattel to one for Life, the Remainder over, and the Devife of the Thing itfelf. In March 106. (17 Car. i.) there is the fame Cafe with this in all its Circumftances : Certain Goods were devifed to A, for Life, the Remainder over, and (as in the principal Cafe) the Devifee over brought his Bill in Equity to compel the Devifee for Life to give Security, that thefe Goods, upon the Death of the Devifee for Life, fhould come to the Plaintiff: And this Bill was brought in the Court of Equity of the Marches of Wales ; but the Court of C. B. granted a Prohibition, refolving the Devife over to be void, and making the fame Diflin(9:ion betwixt the Devife of Goods themfelves and the Ufe of the Goods ; and tliis, fays the Book, was done upon Conlideration. Wherefore if the Law be fo, that the Devife over of the Goods, in the principal Cafe, is void (as is fully proved by the Judgments and Opinions of many Judges, in many fuccelTive Reigns) then the only remaining Qiieftion is, whether Equity will in this Cafe interpofe in Favour of the Devifee over, and in Prejudice to the firft Devifee, fo as to take from him the abfolute Property which the Law gives him ? Now it is a fettled Rule in Equity, that where there is no Purchafer or Creditor in the Cafe, but both Par- I ties De Term. Pafch^, 1699. <; ties concerned are Volunteers (as both the Devifees are in this Cafe) Equity will not hurt, nor prevent either of them from enjoying that Advantage which he has at Law ; and this is the Foundation upon which many folemn Decrees have been made. Whereas it cannot on the other Hand be pretended to have been fettled in Equity, that fuch Devife over is good; though perhaps there may have been fome Decrees to that Purpofe which have palTed fith filemio : But the laft Cafe of this Nature was that of the Duchefs of Albemarle {a) upon the -late Duke of Albemarle •=> De- («; aVern. vife of his Jewels and Plate ; which Point the Court ^''^' did not refolve but left as a Doubt. And fo I con- cluded that the Devife over was void. Sir Thomas Powis econtra cited fome Precedents where it had been determined in Favour of fuch Devife over of perfonal Goods ; particularly the Cafe of Vachel and Vachel {b) decreed in this Court^; adding, (i) Cafes in that ^'^'"' "9- * The other Precedents cited by the Counfel for the Plaintiff on this Occafion were firit the Cafe of Catchmay verfus Nicholls, Morgan i3 al\ heard firft at the Rolls in July 16 Car. 2. and in the October following before the Lord Keeper Finch., where Anne Catchmay by her Will dated /lugujl 1662 made her Sifter Catherine Catchmay Executrix, and be- queathed her whole Eftate (confifting of perfonal Things) to her, for and during the Term of her natural Life, and after her Deceafe her Will was, that {inter al') the Sum of 400 /. fliould be given to the Daugh- ters of Chrijiopher Catchmay, being the Plaintiffs and Nieces to the Te- ftatrix, by equal Portions, and if the faid Catherine fliould die before the Children flioukl come of Age, then the laid 400/. to be paid into the Hands of the Defendant Morgan, whom flie appointed to fee her Will performed •, Catherine died before the Children came of Age, and left the Defendant Judith, Wife of the Defendant Edward Nicholls, Ex- ecutrix •, after which the Children of Chrijiopher Catchmay coming of Age, brought their Bill for their refpeftive Shares of the 400 /. The Defendant's Counfel infilled, that this was a void Devife to the Plaintiffs, being the Remainder of a perfonal Thing after the Death of another, to whom the fame was given before, and the Queffion then arifing on the Words of the Will, it was ordered that the Parties fliould attend Mr. Juftice Ellis with the faid Will, in order that he might perufe the iamc, and deliver his Opinion on the Point aforefaid -, who certified his C Opinion De Term. Pafchce, 1699. that however it might have been determined, had this been the Cafe of a Grant, yet where the Thing pafled by way of Devife or Truft, the modern Praftice had been to admit of a Limitation over after an Eftate for Life, with Refpe£l to perfonal Chattels. The Lord Keeper took Time to confider of it, and afterwards, on the Strength and Authority of the late Precedents, which had followed the Civil and Canon Laws, in conftruing the Vfe of the Thing, and not the Thing itfelf to pafs, where the firft Devife is for a limited Time, in order the better to comply with the Intention of the Teftator, allowed the Devife over to be good |. Opinion, that the Plaintiffs ought to have Relief for the 400 /. Legacy given them by the faid Will. On the 2 7th of July, the Caufe coming on again on the faid Certificate, His Honour ordered the Defendant Nicholls to pay to the Plaintiffs the faid 400 /. with Interefl frona the Time of the Bill. Afterwards the Lord Keeper, on an Appeal, though he differed from the Majler of the Rolls as to the Manner of Relief, yet concurred with him, that the Plaintiffs ought to be relieved for the feveral Legacies given them by the Will, (and for which the faid Catherine was in Nature only of a Truftee,) to be paid after Jier Death. 2dl)\ That of Shirley fcj" d' verfus Ferrers &' al\ heard the 28 th of May 2 Gul. ii Mar. which was thus: John Ferrers Efq; the Plaintiff y*/««f's late Grandfather, being feifed in Fee of the feveral Manors and Lands in the Bill mentioned, {inter al') devifed to the Defendant the Lady Ferrers for her Life, as an Addition to her Jointure, the -Caftle, Manor and Honour of 'Tamivorth, and alfo his Goods and Furniture in Tamworth Caftle, and by his faid Will defired, that the Goods and Furniture might be preferved for the Heir, fo that the Children which fhe had by the Plaintiff's Father might enjoy the fimie, appointing the faid Lady Ferrers Executrix. The Bill {inter al') was to have the Goods and Furniture at Tamivorth Caftle inventoried and preferved for the Plaintiff" Anne ; whereupon, as to the Goods and Furniture, it was ordered by the Lords Commiffioners, tliat an Inven- tory thereof fhould be taken and delivered to the Mafter by the De- fendant, of which Goods, ^c. fhe to have the Ufe during her Life, after which they were to be delivered and remain to the Plaintiff 's Ufe and Benefit, -j- And thus it is now fettled. Vide pojt the Cafes of Tilfen verfus Vl'tf- fen, and Upwell verfus Halfey. 4 D E D E Term. S. Michaelis, 1695. B. R. •///; Petit verfus Smith. ^^''■'^■'^'^- cafea. A Man having a Daughter and two Brothers made Cumbcrb. his Will, and thereby gave 5 /. a-piece to his ^"^* ^Brothers, appointing them Executors, but made no ^e^[,toJ" Difpoiition of the Surplus. has an ex- prcfs Lega- cy, the Court of Chancery looks upon him as a Truftee with regard to the Surplus, and will make him account, although the Spiritual Court has no fuch Power. On the Death of the Teftator, the Daughter, as next of Kin, Hbelled in the Spiritual Court againft the Executors, to have the Refidue of the perfonal Eftate ; it appearing (as was fuggefted) by the exprefs Lega- ci^.s given to the Executors, that they were to have nothing farther ; and in the Spiritual Court the Daugh* ter recovered a Sentence for the Refidue of the perfo- nal Eftate ; from which the Executors appealed to the Delegates, and now moved in B. R. for a Prohibition to the fame Delegates. Sir Bartholomew Shower urged, that here being a Will, and Executors made, the Spiritual Court could not dif- pofe of any Thing from the Executors ; nay, that even where the Party died Intettate, the Spiritual Court could not, before the late A61 of 2 2 d?* 2 3 Car. 2. cap. i o. com- pel a Diftribution : And if it could not take any of the perfonal Eftate from the Adminiftrator, who was the Creature of the Ordinary (a), much lefs had it any fuch (^) Poft42. Power in a Cafe where there were Executors. That it Biackhrough was 8 De Term. S. Michaelis, 169^. (a) I Vern. was triie, in Fojldr and Mimt's Cafe (a) in Chancery, ^'^^' it had been decreed, the Executors ftiould not have the Surplus ; but there five WitnelTes exprefly fwore, that the Teftator had declared his Executors fliould not have more than the particular Sums bequeathed to them*. Holt C. J. The Daughter, not being refiduary Le- gatee, can have no Pretence of fuing for this Surplus in the Spiritual Court: On the contrary, the Teftator's having appointed his Brothers Executors is a Gift to them of the Refidue, after Debts and Legacies paid. At Common Law, before the Statute ordered Ad- miniftration to be granted, the Ordinary appointed Committees of the perfonal Eftate, and in thofe Times it was the Pra6lice to compel fuch Committees to di- ftribute: But afterwards, when the Ordinary by Vir- (i; 31 Ed. 3. tue of ti^e ^g^ ^f Parliament (b) granted Adminiftra- tion, this Adminiftrator had all the Power of an Exe- (c) I Lev. cutor ; and being in Nature of an Executor, it was Cro Car adjudged, that he was (c) not compellable to make Di- 62, 202. ftribution ; which being thought hard as to thofe of ToftBki'd- Kin to the Inteftate in equal Degree, the Statute borough ver- of Diftiibution was made. So that what is faid in but more' ^ Infi. 3 3, " that an Executor or Adminiftrator having particularly « p^j^j g\\ Debts, Legacics, and Funeral Expences, is of Edwards " Compellable to divide among the next of Kin", feems ■verfusFree- ^^^ j-q j^^^.g ^^^^ throughlv conlidcred. man. Vol. II. o J But that the Point might be the more folemn- ly fettled, the Executors were ordered to de- 4 clare * The Fadl here mentioned does not appear, and though it has been frequently faid, that this Decree was founded on the Fraud made ufe of by the Executors, in infinuating themfelvcs into their Teftator's Favour, and prevailing with him to execute his Will at a Tavern, {vide foft 1 1 6.) which indeed appears by the Regifter's Book to have been charged in the Bill, and infifted on by the Counfel for the Plaintiffs at the Bar -, yet it feems as if no Fraud was proved -, fince the Reafon of the Lord Jeffreys'^ Decree is exprelTed to be, " Becaufe the Words of the Will amounted " to a Declaration of Truft, it being plain the Tcllator never defigned " the Surplus of his Eifate (upwards of 5000 /.) fliould go to his Exe- " cutors, for that he gave them i o /. a-piece, which excluded them " from any Property the Law might caft upon them". De Term. S. Michaelis, id^'^. 9 clare upon a Prohibition ; and afterwards on Debate a Prohibition was granted^'. Upon this, the Daughter, as next of Kin, brought a Bill in Chancery {a) againft the Executors for an Ac- (0)20 May count of the Surphis ; and though there were Proofs ^^^^* that the Teftator intended his Executors fhould have the Surpkis, in regard that the Daughter had incurred her Father's Difpleafure by having married againft his Confent, yet thefe being fomewhat doubtful, it was decreed firft by Sir 'John Trevor Matter of the Rolls, and afterwards by Lord Somers upon an Appeal, that the Executors fhould be but Truftees as to the Surplus, af- ter their Legacies paldj and that fuch Surplus Ihould go according to the Statute of Diftributions. And it was faid by Lord Somers, that Equity did delight in Equa- lity, and that the Diftribution according to the Statute was moft agreeable to natural Juftice. That it was danp;erous to admit of parol Proof where (*) Vide there was a Will in Writing ; however, in relation to Fam verfus a perfonal Eftate {b\ the Court would allow '^^^"''^^la^ Proofs and Averments; but then fuch Proofs ought Dowager to be plain and indifputable, to intitle an Executor ^''^^"3"'^ to the Benefit of the Surplus; and for this Vmt- Duchefs pofe the Court cited Lady Gainsborough's Cafe (0 JZ/IT/"^ where the late Lord Gainsborough owed Debts by Mort- where fuch gage, and made the Countefs Executrix, againft m'itted'to" * whom the Heir brought his Bill, to fubjeft the perfo- ""ebut an E- nal Eftate in the firft place to pay oft^ the Mortgage; ^c) 2 Vem. and it being proved to have been the Intention of the 3^^- „ Teftator, that his Executrix Ihould have his perfonal Duke of Eftate, exempt from Debts, and that the Lawyer who f/'^^^rfus^ D drew Duchefs of Rutland i^ * The Prohibition was granted rightly ; forafmuch as the Spiritual ^^^ Court, by compelling a Diftribution, would, in Effeft, compel the Ex- ecution of a Truft, which they cannot do. See this Reafon given per -Lord Chancellor Macclesfield^ in the Cafe of Farrington verfus Knightly ^ poft. to Michaelmas Vacation, 1696. verfus Pow ell. drew the Will, having been inftru6led to infert in the Will a Bequeft of the perfonal Eftate to the Wife, had replied, there would be no Occafion for that, Ihe being (<;) pofi to have the perfonal Eftate (4) of Course as Executrix, Rawiim^ It was decreed, that the Wife fhould retain the perfo- nal Eftate, and that the Heir ftiould not, in that Gafe, have Aid thereof, towards paying off the Mortgage, notwithftanding that by the Rules of the Court the fame was liable to be fo applied. Cafes. Tivaitcs and Smith, [Michaelmas Vacation, 169(5.] a refduar"'^ /V ^ Appeal was brought before the Court of Dele- Legatee no x~x gates, from a Sentence given by Dr. Watkinfoi% P^Jvel wm Chancellor of the Archbifliop of Tork, for the Validity relating to and Probatc of a Will of a perfonal Eftate. The fingle fcteX the Matter in Qiieftion was, that there were only three civil Law, Witnefles to the Will, and two of thofe happened to Law only bc Children of the Refiduary Legatee. fuch Will is determinable. Wherefore it was infifted that thofe two Children were not competent WitnelTes ; forafmuch as by the Civil Law the Child was not allowed to be a Witnefs for his Parent, and fo was the exprefs Text thereof, as appears by the Digefl Tit. de Teflibus ; and this was faid not to be any of theSolemnities or Ceremonies of the Civil Law, for then it might not be binding here, no Part thereof being obligatory, or neceffary to be ob- lerved among us, but what is required by the Law of Nature and Nations ; but the Reafon of this Prohibi- tion of Children from bearing Witnefs in Cafes where their Parents were concerned, proceeded from the Af- I fedlion Michaelmas Vacation, 16^6. li fe£lIon and Duty they owed to their Parents, and fo was Alhericus Gent His in hi? 1ra£l De Tefl'tbusy qu. 2. fo. 230. ' „ . In Anfwer to which, it was allowed to be true, that by the Civil Law Children were incapacitated as above; but then the fame was urged to be only one of the Ce- remonies of that Law, and fo not of Force with us : ^ere^ot^^" Juft as a (a) Woman was thereby prohibited to be a permitted to \Vitnefs, whereas our Law knew ot no fuch Prohibi- at^t'he^"- tion. But admitting thefe Children were exception- w^«Afrem- able for that Reafon, yet here remained one Witnefs torm'eX "^ altogether without Exception, and by the Civil Law ^^''/'^ ^'^'"'^ one good Witnefs might fupply the Deficiency of ano- fo could not ther exceptionable Witnefs. See Farimdus de Teflibus, ^l^l'^^^^'^^ q. 6z. fo. 199. whofe Words are, Tefiis unius inhnbili' Wood's inft, tas i^ defeSlus fuppletur ex fide ^ habilitate alterius. Civil Law And it being ordered by the Civilians that Precedents fhould be fearched, for the Appellant, the Cafe of Mar- wood verfus Aietcalf wsLS produced, where, upon an Ap- peal from the Court of York to the Delegates, this ve- ry Exception was infilled upon, and at length allowed. Alfo the Cafe of Sir Thomas Littleton, where the like Ex- ception prevailed; but this lalf Cafe not being before a Court of Delegates, there were no Common Law Judges. For the Defendant was fhewed the Precedent of- lately adjudged by a Court of Delegates, where Mr. Juftice Porvel jun. was in the Commiilion, and prefent, (and which at the Hearing of this principal Cafe he re- membered); the Point there was upon the Revocation of a Will ; and whereas by the Statute (b) of Frauds (^') 29 Car. it is ena6led, that no Will Ihall be revoked, but where fc^^J ^' the Writing revoking it is figned in the Prefence of ^'^'''^^ P°^ three WitnelTes; it fell out that there were in that Cafe {usTpcr. three 12 Michaelmas Vacation, 1696. three Wltneffes, two whereof were unexceptionable, but the third, being the Child of the rcfiduary Legatee, was, for that Reafon, objefted to, as noWitnefs by the Civil Law, But it was decreed by the Judges Delegates, that there being two good WitnefTes, which were fufficient to prove the Revocation by the Civil Law, though the Statute required a third Witnefs, yet that other Wit- nefs added by the Statute, needed not to be qualified according to the Civil Law : From whence the Com- mon Lawyers inferred, that our Judges have not looked on themfelves as bound up by the Rules of the Civil Law, but at Liberty to follow their own, where the two Laws differ. To which it was replied, iv>/?. That this being a Will of a perfonal Eftate only, was proper to be de- («)Pofty/;M- termlned by the Canon and Civil {a) Laws; and that TadmaT' ^^^ Judgcs had, lu all fuch Cafcs conformed thereto {b)-, rnmi-jii^. indeed, where fome temporal Matter depends on an verfussTfl/f. Ecclefiaftlcal Caufe, and is necefTary to be determined (^)Saik. vvith it, there, though the Ecclefiaftical Judges may 4 Co. 29. try fuch temporal Matter, yet they ought to do it by the Rules of the Common Law, to which it properly belongs ; elfe the Common Law judges would inter- pofe by fending Prohibitions ; and that with this Di- flin£lIon were all the Cafes, wherein the Temporal Judges had differed from the Civilians, to be reconciled. Secondly, That in this Cafe, the having of One good Witnefs would not help the Diiability in the reft; for that was to be underftood, where the Exception went only to diminiffi in part the Credit of the Witneffes, as on account of Friendlliip, or even Relation in a further Degree, but not in Cafe of Exception to a Child, who was abfokitely prohibited to be any Witnefs at all. I Thirdly, Michaelmas Vacation^ 1696. 1 3 Thirdly, That the Exceptions to WitneiTes In the Ci- vil Law, and in a Caufe triable by them, were not to be compared to fuch Exceptions as might h'e againft WitnefTes at Common Law, where the Trial was by Jury, but rather to Exceptions to the Jury; and this of Relation was a good Caufe of Challenge to a Tury- , , t ^ man [a), even at Common Law. 157. a^ Laftly, (As the ftrongeft Argument in favour of the Exception) the conltant Pra£lice was appealed to ; and that the Defe£l could not be fupplied by another intire Witnefs, was faid to appear from Smnburne, who gi- ving an Account of the Pra6lice and Law here in that Particular, (Jib. 4. je6l. 24.) exprefly fays, When the Law refills the Examination of WitnefTes, it fhall not be fupplied by any other Witnefs. Whereupon the Common Law Judges agreed with the Civilians, that thefe two Children were not to be allowed as Witnelfes; therefore the Will failed for Want of Proof, one Wit- nefs being by the Civil Law as no Witnefs (b), and fo (*) Poft Adminiftration was granted to Tvpaites the Appellant, verfus Da- Powcl fen. was a little doubtful, but thinking that in ^'^« this Cafe he was to be bound by the Civilians, he at length agreed, and the Sentence given at Tork was re- verfed. ^^; Afterwards a Commiflion of Review was fued out upon this Sentence, but the Parties agreed, and the Executor renounced. (f) ^.ere. If die Will in Queftion appeared to be written, or lo much as fubfcribed, by die Teftator's own Hand -, fince irt cither of thefe Cafes it would have been good without any Witncifcs at all. Vide Swinb. a 00. E D E 14 D E Term. S. Hillarii^ 1700. 5. R, Cafe 4. Fiper verfus fVigg. Saik. 391. ■_."' Jeflment: A Copyholder in Fee had IfTue four Surrender of EL/ ^^"^ ^"^ ^^"^'^ Daughters, and furrendered his a Copyhold Copyhold to the life of his Wife for Life, and after to theUfeof ,_ ,/^i^__v ^_ ^1 , xjC^ _£• U* ^1 o J j.V.mdc. her Death, to the Ufe of his three younger Sons and and their [WO Daughters, equally to be divided, and their re- qua'iiy to be fpc^livB Hcirs and Afligns for ever. divided be- twixt them and their Heirs ref^ftively. This held bv two Judges a Teilancv in Common, by reafon of the apparent Intent of the Surrenderorj againft the Opinion of Ho/t C. J. who thought it a Jointenancy. The Qiieftion was, whether thefe Words made a Tenancy in Cbniifiori ; or whether the Sons and Daugh- ters took ^s joititen'ant's? And the Matter having been argued folemnly at the Bar, the Judges now delivered their Opinions jeriatim. Gould J. The Sons and Daughters take as Tenants in Common, and not as Jointenants. In Confl:ru6lion of Deeds this Rule is to be obferved, (r/^.j to make all Parts of them take EfFe6l, according I tQ De Term. S. Hill. 1700. 19 4ro the Intent of the Parties, fo as it be not contrary to the Rules of Law ; and it will not be inconfiftent with any Rule of Law, to conftrue this a Tenancy in Com* mon ; the Words upon which we are to judge, being not Words of Limitation, or Creation of an Eitate but of Qiialification and Correflion. > There are no precife Words requifite to make a Te* nancy in Common. Lit. fe6l. 292. i Infi. 189. ai Cro. Eli^. 69$. ^ Co. 1 9. Ratclrff's Cafe. The Words (e- qually to be divided) go to the Quality of the Eftate, and not to the Limitation of it; a Joint Eftate in the Premifles may be altered by the Habendum. Hob. 172. I Inft. I 90. h. Cro. Car. 75. A Grant to a Man and hia Heirs, but if he die fans Iffue, <^c. this turns the Fee in the Premifles to an Eftate-Tail, and corrects the Generality of the preceding Words. 1 9 H. 6. 74. The Intention of the Surrenderor was to make Provilion for his younger Children and their Heirs, which will not take P^fte£l, if it be a Joint Eftate. Surrenders of Co- pyhold Land to Ufes fliall have the fame favourable Conftru£lion as Wills, and are not to be tied up to the ftri£l Rules of the Common Law, but expounded according to the Intention of the Party. 2 Bulfi. 274. 5 Cro. 323. Popb. 125, 126. Ploird. 151. i Saund. 151. 1 Vent. 7^6'^. And though there has been a running Notion pafling obiter in fome Books, that there is a Diverfity betwixt Wills and Conveyances at Common Law, yet that Matter has not been fcanned or fettled : For, as to the Intention of the Party, the Words in a Deed are capable of the fame Conftru61ion as in a Will. As to the Cafe in 2 Roll. Abr. 90. 5. Furje verfus Weeks, the Diverfity there is upon a Con- veyance at Common Law, but here the Cafe is upon a Limitation of an Ufe. In the Cafe of (^) Blijfet vsrfus (^) SJfc- Cranwell, Pafclu 6 W. iff M. C. B. a Devife was to two ^^^" and their Heirs, and the longer Liver of them, equally to i6 De Term. S. Hill. 1700. to be divided, after the Death of the Teftator's "Wife ; and refolved, this was a Tenancy in Common. The Words ^^M^Z/y divided^ or eqiitxUy to he divided^ make a Tenancy in Common in a "Will, beyond all Difpute, and we are here in the Cafe of an Ufe, which bears the like Conftru£lion with a "Will. In 2 Roll. Ahr. 6-]. Brooks verfus Brooks, the Wife was named after the Habendum in the Surrender of a Copyhold, and yet took an Eftate according to the Li- mitation, upon that Rule of Conftruftion. Pafch^ 3 2 Car. 2. B. R. Smith verfus Johnjon. A Feoffment was made to two and their Heirs, equally to be divided, and there Scrogs and Dolben were of Opinion that the Feoffees were Tenants in Common, and not Jointe- nants ; but Jones differed. Tmton J. was of the fame Opinion, {vi^.) that it was a Tenancy in Common, and argued much to the fame Effc£l, only he added, that a Praecipe lies of two Acres in tres partes dividend', which is a Tenancy in Common. I 3 G. 58. 21 Ed. 4. 2 2. That if this Limitation had been before the Statute of Ufes, the Chancery would have compelled a Conveyance to the Sons and Daugh- ters in Common, and the Law fhall have the fame Operation fince : That if in this Cafe, the Father had furrendered the Land to the Ufe of his laft Will, and by his Will had devifed it in thefe Words, it muft have been agreed to create an Eftate in Common ; and there was no Reafon why a different Conftru6lion ftiould be put upon the Words, when expreflfed in the Surrender itftlf. [a) 4 Co. Bolt C. J. contra : Copyhold Lands do not differ (a) Mti A//f^° in Cunttruflion of Law from Freehold Lands, and A crfus Cooi. Surrenders of Copyholds muft be governed by the fame Rules as Conveyances at Common Law. The Opinion I in De Term. S, Hill. 1700. 17 in Vo^h. 12 5. which my Brothers rely on, {yiiC) that a Surrender is to be conftrued as a Will, is of no Au- thority ; for it is amongft the additional Cafes, and not reported by Popham ; and there is no Mention made of it in. the Report of the fame Cafe in Cro. Jac. 434. If a Copyholder furrenders to the Lord, without declaring an Ufe, the Copyhold extinguifhes, as on a surrender by Tenant for Life, to him in Reverfion. The Rcfolution in 2 Roll. Abr. 67. Brooks verfus Brooks, was founded upon the Cuftom of the Manor, which was, that a Perfon named after the Habendum fhould take the Eftate limited to him ; fo where a Sur- render is to feveral by Cuftom, they fhall take in Sue* celhon as they are named : We are not upon the Con- ftru£lion of an Ufe, for a Surrender to an Ufe is a Li- mitation of the Eftate, a Declaration and Dire£lion to the Lord how to grant the Lands, and the Surrender- or himfelf continues feifed till the Admittance of the Surrenderee, and the Perfon to whofe Ufe the Surren- der is made is not Ceflui que Vje in the mean Time, but when admitted, he is in by Grant from the Lord. By this Surrender the Sons and Daughters are Join- tenants, and not Tenants in Common : For the Words, equally to be divided, ftgnify no more than the Law would have implied without them, and therefore they can have no .Operation, i Infl. 186. a. One Jointe- nant can only forfeit or difpofe of his own Part ; and if both join in a Feoffment, and one die, it muft be pleaded as the Feoffment of both, and not of the Sur- vivor only. The true Difference between Jointenants and Tenants in Common is put mLit. feh. i^i. \ Infl. 188. b* Jointenants hold by one joint Title, but Tenants in F Common 1 8 De Term. S. Hill. 1700. Common by feveral Titles. In our Cafe the Title is joint, and all claim under the fame Conveyance; the Word (equally) doth not alter the Manner of taking the Profits, there being no Difference, in that Refped, be- tween Jolntenants and Tenants in Common, in regard if one Jointenant, or one Tenant in Common, take the whole Profits, his Companion has no Remedy a- gainif him. So Join tenants have as feparate an Intereil in the Land as Tenants in Common; for Tenants in Com- mon were no more compellable at Common Law, to make Partition than Jointenants ; and therefore in fu- ing a Writ of Partition, the Party never ftiews whether he is Tenant in Common or Jointenant, but only that he is feifed pro indivijo. ' Co. Ent. 413, 4 14. In like Manner, one Jointenant may difpofe of his own Part, as well as a Tenant in Common, and each has an equal Proportion without thofe Words, equally to be divided ; neither does the Word refpe^ively make any Alteration of the Eftate, forafmuch as there is no Diverlity be- twixt a Grant to two and their Heirs, and a Grant to two and their refpe£l:ive Heirs, or to two and their Heirs refpeiSlively, lince the Limitation muft be to both their Heirs, or they cannot both take a Fee-fimple,, and if the Fee enures to both their Heirs, it muft be to both their Heirs refpeftively ; (which Turton and Gould agreed) and in Conftruftion of Deeds, fuperfluous Words are to be rejeiled, as having no Operation. 8 Co. 145. 4. But there has been an Obje£lion drawn from Lin, feci. 298. If Lands be given to two, Habend' the one Moiety to one, ^c. they are Tenants in Common. Rejp. If a Feoffment be made to two, Hahend' one Moiety to one, and the other Moiety to the other, this I operates De Term. S. Hill. 1700. 19 operates as feveral Conveyances, and not as one, for there muft be two Liveries, becaufe there are feveral Freeholds, and Livery to one, jecundum formam chart There is no Authority in the Books againil my Opi- nion; on the contrary, the concurrent Authorities of all Times in Weflminfter-Hall are for me; fo that I think Judgment ought to be given for the Defendant. But my Brothers make the Majority, and therefore the Plaintiff muft have Judgment. 5 D E ■3 D E Term. S. Trinitatis^ 1700. B. R. y^'/^^j^^Nottingham verfus Jennings. cafef. IN Ejeftment, on the Trial, this Cafe was made : Saik. 233. J. S. had three Sons, A B. and C. and dcvifed his a Devife by Lands to B. (his fecond Son J) after the Death of his ^^""^''^'-TJ'* 111 1- 11* ' r 1'^ fecond Son Mother, to hold to him and his Heirs tor ever; and and his Heirs for Want of fuch Heirs, then to his (the Teftator's) [°; ';;;^^';;^=^;;j^ right Heirs. fuch Heirs, then to tlie right Heirs of the Teftator, is an Eftate-tail. But had tlie Devife over been to .i Stranger, the fecond Son would have taken a Fce-fimple, and conf^quently the Devife over had been void. . The Teftator died, after which B. entered and died without Iffue, Hving A. who was LefTor of the Plaintiff. It was argued by Northey for the Plaintiff, that the Eflate devifed to B. was but an Eftate-tail, and not a Fee-fimple ; and chat the Word {Heirs) Ihould be con- ftrued Heirs of his Body, for that it muft be intended, the Teftator took Notice that his fecond Son B. could not by any Poflibility die without Heir, fo long as his Father had any other Iftlie, who would be Heir to him J that tliis Conftru£lion was founded upon the 24 • -D^ Term. S, Trijt. 1700^ the fame Reafon, as \vhere a Devife is to one and his Heirs, and if he die without Ifliie of his Body, then to another, which is conftrued to be an Eftate-tail ; becaufe the leftator appears to have intended only the Heirs of the Body of the firft Devifee. Cro. Jac. [j) Cat"of° 4^5* W ^^'^^^^ verfus Herring, i RoL Rep. 398,43^. Parhrver- Cro.Jdc. 428, 448. I Rol. Ahv. %i^6. 3 Keh. 509. fus Thacker, 3 Lev. 7 1. Cartherp for tlie Defendant infifted, that B. took a Fee-limple, and relied on the Cafe of Hearn verfus Al- len, Cro. Car. 58. That this Cafe differed from that of Wehlf verfus Herring, forafmuch as here was an ex- prefs Devife of a Fee-fimple, but there the Son took only by Implication ; and therefore the implied Eftate was made to give Way to that which was exprelfed ; which Diverfity was the Foundation of that Judg- ment. That It muft be agreed, if this Remainder had been limited to a Stranger, it had been void, and B. would have taken a Fee-fimple. 9 H 8. 8. ^. Cro. J{ic. 416. Teh. 209. That this Devife over to the Teftator's right Heirs was intirely void; for the eldeft Son fhould not take by Purchafe by the Words of the Will, but would be in by Difcent \ for which Reafon, this Claufe being a Nullity, and palling no Eftate, it ought not to affift the Conftrudion of the Will, by making an Eftate-tail by Implication ; that the Devife over being generally to his (the Teftator's) right Heirs, and no particular Perfon in View, and there being an exprefs Devife of a Fee-fimple, and no exprefs Remainder, B. ought to take a Fee- iimple, and no Implication to be made of an Eftate- Tail. But the whole Court adjudged it to be but an £- (late-tail in J3. And by Holt C. J. Tho' the Eldeft Son fhall not take by this Will, but ftiall be in by Difcent, and fo the Devife over void in Point of Limitation, 4 yet Dc Term. S. Tr'in. 1700. 2^ yet it is fufficient to manifcfl: the Intent of the Tc- ftator, and aid the Conftru6lion of an E^ate-tail. It appears to have been the Teftator's Intent, tliat the Lands lliould defcend irom hiinfelf, and not from his Son B. that the Reverfion Ihould go to his own right Heirs ; and fmce that Claiife difcovers his In- tent, it is not material whether the Devife over be good or not. I agree, if the Devife over had been to a Stranger, it had been void, and B. had taken a Fee-fimple ; but in the prefent Cafe the Word (Heirs) can import nothing more than KTiie ; for how could B. poffibly die without Heir, Hving the other Brother? So that the Word (Heirs) muft be quaHfied ; as fup- pofe in this Cafe the Lands had been devifed to B. and his Heirs, and if B. die without IlTue, then to another, this, without all Doubt, would have been an Eftate-tail; the Cafe of lVel?b verfus Herring is a ftrong Cafe, upon the Authority of which I Ihould have made no Difficulty of adiudeing it an (a) E- 1^)^}'^^?°^ n ■ 1 ^11 J o o V ^ the Cafe of itate-tail at my Chambers. the yfttomfy J General ver- Tudgment for the Plaintiff. ante c^Vs ■' ^ Cafe. /\'/uy. ^/A Pens Cafe. cafe 5. A Motion was made by Mr. Lechmere, for a M.an- ^^ik. 250. damns to the Judge of the Spiritual -Court, to f|«<^fta^fedjes make Diftribution on the Statute of 22 i^ 25 Car. 2. ceafed^Bro- cap. 10. And the Cafe being ordered to be put in ^''"'^^hiid ■* 111 ^ ^ decca- the Paper to be argued, appeared to be thus : fed Brother's Grandchild, the Grandchild not admitted to any diftrlbutary Share ; the Claufe in the Statute which fays, that there fliall be no Reprefentatives among Collaterals beyond Brothers and Sifters .Children, being to be intended that none Ihall take by Reprefentation but the Children of Brothers and Sifters to the Inteftate. Sir Paer Pett, in Jj>ril 1^99. died Inteftate, having neither Wife nor Child j his next of Kin was Eli^a' H heth 2.G De Term. S. Trin. 1700. beth, Daughter of Sir Phineas Pett, who was Brother to the faid Sir Peter Pett, and Adminiftration was committed to this Eli-zjibeth Pett. The Perfons claiming Diftribution were Margaret and Peter Pett, Children of Peter Pett, who was Son of Sir Phineas, and Brother of Elii^^abeth the Admini- ftratrix. And the Qiieftion was, whether the Inteftate's Bro- ther's Son's Children, being the Grand Nephew and Grand Niece of the Inteftate, fliould come in for a diftributive Share with the Inteftate's Niece? the Sta- tute faying, that the perfonal Eftate, in cafe there fhall be no Wife or Child, fhall go to the next of Kin of the Inteftate, and their legal Reprefentatives ; after which com.es a Provifo, enacting, that there fliall be no Reprefentation among Collaterals after Brothers and Sifters Children. In Support of the Motion, Mr. Lechmere contended, that the Delign of this A61 was to be diftufive, and to apportion, as much as polTible, the Inteftate's perfo- nal Eftate, fo that all the near Relations might be pro- vided for; and that for this Reafon it was properly called a Statute of Diftribution', which Title could no Way be anfwered, were any one fingle Hand al- lowed to fweep away the whole ; befides that this had been hitherto the Pra6lice in the Spiritual Court. Againft which, on Behalf of the Adminiftratrix, it was urged by Mr. Har court, that thefe Grand Ne- phew and Grand Niece, if intitled to any diftributive Share, muft claim it, either as next of Kin in equal Degree, or elfe, as Reprefentatives, K And De Term. S. Trin. 1700. 27 And firft, as next of Kin, there was no Colour for it ; for they could not be in equal Degree of Kin, becaufe the Admlniftratrix was the Brother's Daugh- ter, and Margaret and ^eter the Brother's Grandchil- dren, (that is) one Degree further. xdly. As Reprefentatives, they could not be intitled ; for as much as they were not Children of the Bro- ther of the Inteftate ; that it was reafonable to con- ftrue this Statute as favourably as might be for the Admlniftrators, fince a great Burden lay upon them at Law, in duly adminiftring the Inteftate's Eftate ; and this Statute of Car. i. took away from their Profit, but did not at the fame Time (as it ought to have done) leiTen their Burden. He cited Raym. 46^. Car' ter verius Crarvley, C. J. North's Opinion j and faid, that it had been fo fettled in Chancery in the Cafes of Clement and Harris 1680. {a) Maiv verfus Hard- {a) zYem. inz-, 2 o July i6qi. and Newcomb verfus Tucker. 1 6 Feb. "t?^- , ■ 1694. Chan. 28. That it was true, among Lineals, Reprefentatives ad infinitum fliould fhare in the Dillribution, otherwife among Collaterals. Holt C. ]. Sir Walter Walker, a fam'ous Civilian, drew this {b) AQ: for Diftribution ; and the' only Que- (>') And ex- ftion now before us upon it is, whether the Words S inftan-" Brothers and S:flers Children in the Provifo, Ihall nor ^^^ ™^"- be intended Brothers and Sifters Children of the In- in,"this Sta- teflate ? Now furely they ought to be fo taken ; for *"'" '' ^° ^'^ the Inteftate is the Subje£l Matter of this A61 ; it is and con'ftiu- his Eftate, his Wife, his next of Kin, his Children, t ^ -f , 1 r 1 1 • Ml Rules ot the and conlequently his Brothers Children, that the Civil Law. Per the Ma- fter of the Rolls, (Sir Jofeph Jekyll,) in the Cafe of Mentney verfus Petty. Pieced, in Chan. 593- Statute 28 De Term. S. Trin. 1700. Statute fpeaks of; fo that the relative Terms made life of throughout, have the Inteftate for their Correla- tive. The Intent of the Provifo was to confine the Degrees of Reprefentation, that they fiiould not go beyond Brothers and Sifters Children. And if this Conftrudlion has not hitherto prevailed in the Spiri- tual Court, the Parties are at Liberty to appeal. Et per Gould J. It has been always faid, the Statute fliall not be taken in favour of Diftributions. See 2 Vern. Wherefore the Mandamus was denied ; the whole i^vero^r ^^^^^ declaring, that among Collaterals, faving only Dariing & in the Cafe of Brothers and Sifters Children, Proxi- more'pa^rti- ^'^^Y ^^ ^^"^^^ ^^^^uld give Title to the perfonal E- cuiariy the ftate of the Intcftatc. Cafe of Bnuers verfus L'lttlewood, poft. where Lord Chancellor Macclesfield declares the Law to be fettled by the Refolution above mentioned. DE 29 DE Term. S. Michaelis, 1700. Co>cs Cafe. £^^^^ JVright. COX was libelled agalnft in the Spiritual Court atSaik.^672. Exeter^ for teaching School without Licence from Point ar- the Biftiop ; and on the 1 4th of December lalt, on my f^^'^^^X- Motion before the then Lord Chancellor, an Order tion. was made, that Caufe fhould be ftiewn, on the firil The Spiri- Day of the Term then next following, why a Prohl- '^^l j^'^^'^^. bition Ihould not go, and that in the mean Time all tion of Things Ihould ftay j which Order had been from sJiTirbut Time to Time inlarged to this Day. Th\Y^* teaching School generally, without faying what School, the Temporal Courts will grant a Prohibition. And now the Attorney General and -Dr. Waller moved to difcharge the faid Order, alledging, that be- fore the Reformation, this was certainly of Ecclefiaftl- cal JurifdI6lion, and in Proof of it they cited the 1 ith Canon of the Council of {a) Later an^ held Anno W Decree 6. 121 5. which Canon, (as well as that for making cap. i, 2, 3, Tithes parochial,) has been received by Cuftom into this Kingdom, and fo made Part of our Ecclefiaftical Laws. I That 30 De Term. S. Michaelis, 1700. That the ift of Elii^. cap. i. having reftored the Spiritual Jurifdiflion to the Crown, which had been ufurped by the Pope, immediately thereupon the (fl) See Spar- Qiieen fet forth (a) Eccleliaftical Injunftions, the 40th ieaions305. whereof is, that no Man fhall take upon himfelf to teach School, but fuch as is allowed by the Ordinary ; the making of which Injunctions by the Ecclelia- ftical Power of the Crown, fhews them to be of an Eccleliaftical Nature, and confequently cognifable in the Spiritual Court. That it muft be admitted, thefe Injun£lions were not confirmed by any Kdi of Parliament, but their be- ing referred to, and mentioned in 5 E//:^. cap. i. was an Argument that the Legiflature did approve of them ; that in the 1 2th Year of that Qiieen, the faid Injunflions (and among them, this againft teaching School without Licence from the Ordinary) were, by the Convocation then fitting, turned into Ca- nons; that afterwards the 23d of E//^. cap. i. was the firft Statute that prohibited it, fince which two (b) I Jac. I. Q,^ others had followed ; but none of them tended 13 & 14 to deftroy the Ecclefiaftical Jurifdiilion, only, by ma- Car. 2. c. 4. i^jj^g j-j^g Offence puniftiable in both Courts, gave a Remedy where there was none before ; that in the i Jac. I. the Convocation met, which reduced all the Canons into one Body, and then particularly made this Canon, that none fliould teach School without Licence from the Ordinary ; and tho' it might be difficult to prove, that thefe Canons were direflly confirmed by A61 of Parliament, yet there was a Sort of Confirmation of them in 4 Jac. i. cap. 7. for the founding and incorporating a Free Grammar School at North-Leech in the County of Gloucefler, whereby the Provoft and Scholars of ^leens College in Oxford were to nominate the School-Mafter and Uftier of 4 the De Term. S. Michaelis, 1700. 31 the faid School, and to make fuch Ordinances for the Government thereof as they fhould fee meet, fo that the fame were not repugnant to the King's Preroga- tiv^e, to the Laws and Statutes of the Realm, or to any Ecclefiaftical Canons or Conftitutions of the Church of England. But on the other Side it was anfwered, that there could not be one Canon or Precedent before the Refor- mation, cited to prove the Keeping of School to be of Ecclefiaftical Cognifance; for that fuppoling the Council of Lateran to have been in every Bart thereof received in England., yet the Canon cited did not prove the Point for which it had been produced, that Canon only appointing Schoolmafters in every Cathedral Church, and fuch Schoolmafters to be licenfed by the Bifhop ; which was but reafonable, (t;/^.) that he who taught in the Billiop's Church {hould be approved of by the Bifhop ; that the teaching of School was not in the Nature thereof Spiritual ; and it would be hard to af- firm that it was of Ecclefiaftical Jurifdi6lion, or cog- nifable by the old Ecclefiaftical Laws of the Kingdom received by common Ufe, at the fame Time that not one fingle Precedent of any fuch Law or Ufage before tlie Reformation was to be found. And that as to the Canons made fince, they did not bind a Lay-man, (as Cox was fuggefted to be) becaufe the Laity was not reprefented in Convocation ; and it was a fun- damental Maxim of our Government, that what bound all muft be aflented to by all ; neither could a Reference to the Canons in a private Aft of Parlia- ment add any greater Weight to them than they had before. That this was a Cafe which deferved great Confide- ration, having before been in the other Courts ofJVeft- minfter-HaH, where feveral Prohibitions had been grant- ed 3Z De Term. S. Michaelis, 1700. ed on this very fame Point, in order that it might receive a judicial Determination, but the other Side would never venture to go on ; as in the Cafe of * Belcham verfus Barnardiflon in C. B. and in B. R. Oldfield\ Cafe, Mich. 9 [f^. 5. Chedrviclh Cafe, Mich. lo W. 3. Scorriers (a) Saik. Cafe, Trin. 11 W. 3. And 12 W. 3. one Davifons (a) ^°^' Cafe, who being brought to the Bar on a Habeas Corpus, it appeared thereon that he was committed on an Ex- communicato Capiendo, being excommunicated for teaching School without Licence, and the Court holding it to be a doubtful Point, bailed him during their Confidera- tion thereof; which Pra£lice of the other Courts in IVeJIminfter-Hall, ftiewed it to be a Matter not fit to be determined on a Motion, but in a judicial Way. But fuppofmg it to have been originally a Spiritual Crime, yet being now made a Temporal one by feve- ral A61s of Parliament, it was thereby drawn from the Spiritual to the Temporal Jurifdidion. Lord Keeper : Both Courts may have a concurrent ]urifdi6lion ; and a Crime may be punifhable both in the one and the other. The Canons of a Convocation do not bind the Laity without an Acl of Parliament; But I always was, and ftill am of Opinion, that Keep- ing of School is by the old Laws of England of Eccle- iiaftical Cognizance, and therefore let the Order for a Prohibition be difcharged. Whereupon I moved, that this Libel was for teach- ing School generallyy without Ihewing what School; and Court Chriftian could not have Jurifdi^lion of Writing * Pafch. & Hill. 10 £5" II fV. S- where the chief Queftion was. Whether a School mailer might be profecuted in the Ecclefiaftical Court for not bringing his Scholars to Church, contrary to the 79th Canon in 1603 ? And it was the Opinion of 'Trely C. J. and Potvel J. and the Court, That the Schoolmaltcr being a Layman, was not bound by the Canons. De Term. S. Michaelis, 170 1. 55 Writing Schools, Reading Schools, Dancing Schools, To which the Lord Keeper afTented, and thereupon granted a Prohibition as to the teaching of all Schools, excepting Grammar Schools, which he thought to be of Eccleiiaftical Cognifance. K D E 34 D E Term. Pafch^^ 1701. Cafe 8. ^Ia,y.y2f. Philips verfus Philips. 2 Vern. 430- Precedents in Chanc. 167. T A. by Will devifes Lands to Tiuikes and their Heirs, in Trull:, that the Profits HIS was a Cafe fent out of Chancery to the Juftices of C. B. for their Opinion. William Phi- lips had a Wife named Elizabeth, and one only Daughter named Martha, and being feifed in Fee of divers Lands in the Counties of Flint and Denbigh, devifed his Lands to Truftees and their Heirs, in Truft, that the Profits thereof fhould be equally divided betwixt his Wife and his Daughter, during the Life of the Wife, and after her Deceafe, he devifed the Lands to the Truftees and ihouid be e- their Heirs, to the Ufe of his Daughter Martha, and ded between the Heirs of her Body for ever, with divers Remain- his Wife (jgj-s over, one of which (as to Part of the Lands) was ter (the Heir to the Plaiutiflf, the now Heir at Law of the Teftator. of the Te- ftator) during the Wife's Life, and after her Death he devifes the fame to the Ufe of his Daugh- ter in Tail, with Remainders over ; the Daughter dies without IfTue, and Inteftate, during the Mother's Life : Refolved by the Opinion of all the Judges of C. B. that the Mother and Daughter were Tenants in Common, and that the Mother fliould have a Moiety of the Profits during her Life, and that the other Moiet}', by the Statute of Frauds and Perjuries, fhould go to the Executors or Adminiftrators of the Daughter, as before that Statute it would have been liable to Occupancy, and not to the Heir of the Teftator, as Profits undifpofed of and rcfulting to him. The De Term. P^fcha, 1 70 1. 39 The Teftator died, after which Martha the Daughter died without IfTue, and Inteftate, in the Life of the Wife, who took out Adminiilration to her Daughter: And the QLieftlon was, betwixt the Plaintiff the Tefta- tor's Heir at Law, and the Defendant the Wife, whe- ther the Daughter's Moiety of the Premiiles Ihould de- fcend or refult to the Tellator's Heir at Law, or whe- ther the Teftator's Wife Ihould have the Whole for her Life? And I argued on Behalf of the Wife as follows : I will admit that this, being a Devife of a Truft, fliall have the fame (a) Operation and Conftru£lion as ( Grandmo- Bench for a Mandamus to the Spiritual Court, com- ther his manding them to grant Admlniftration to the Aunt, "he gLS-' as more near of Kin than the Grandmother. Broderick mother is and Serjeant Darnell were for the Mandamus, and Sir KiTthan Bartholomexp Shower and Che/hire cont\ the Aunt, and is inti- tled to Ad- mlniftration in Preference to her; neither is the latter to come In for a diftributory Share. See the fame Point determined in the Cafe of IVoodrojf \Qzi\is IVickworth, upon the Strength of this Refolution. Precedents in Chanc. 527. And for the Mandamus it was urged, that the Aunt was nearer of Blood than the Grandmother, and as fuch intitled to the Preference, by Virtue of the Sta- tute of 2 I H. 3. cap. 5. That the Ordinary had no M Autho- 42 De Term. Pafch^, 1 70 1. Authority to grant Adminiftratlon contrary to the Sta- tute ; and that having granted it tortioully, he ought to re£lify it. They admitted, that before the Statute of Edrv. 3. the Ordinary was not coinpelhible to grant Admlniil:ra- tion to the next of Kin, and that the Admlniftrator {a) Ante was at that Time only as a {a) Servant to the Ordinary ; Smi'th^"^''^ but by the 3 i Edw. 3. cap. 1 1. the Ordinary was obli- ged to commit Adminiftratlon to the nearefl and mofi loyal Friends of the Inteftate ; yet the 21 H. 8. cap. 5. gave the Ordinary an Eleftion to grant Adminiftratlon to the next of Kin, or any in equal Degree; but it was fald, if the next of Kin, at the Time of the Death of the Inteftate, were difabled by Attainder, i^c. and afterwards the Difability fliould be removed, the Ordi- nary ought to grant Adminiftratlon to him ; but in Cafe Adminiftratlon had been before granted, and pending the Dif$billty, it was made a Qiieftion in I Sid. 371. {Ojfley verfus Bcjl) wiiether fuch Grant of Adminiftratlon ought not to be repealed, before the next of Kin ftiould obtain a Grant of it ? in regard the Intereft was veftcd ; but that the Dlft'erence was, where the Adminiftratlon was granted to the next of Blood, and where to a Stranger : In the laft Cafe, the new Adminiftratlon ought to be granted without any for- mal Repealing of the firft, the very KB: of granting the new Adminiftratlon amounting to a Repeal. 1 And. 303. On?. 50. Cro. Eli^. 46c. For that the Ordina- ry had never in this Cafe executed his Authority. And therefore, though in Packman's Cafe 6 Co. 1 8. b. it was done upon a Citation, yet it did not follow that it could not have been done without it; of which Opinion was Popham, in Cro. Eli^. 46c. And if the Ordinary might do it without a Citation, the Court of Kings Bench would oblige him, and the rather, after he had (as in the principal Cafe) granted it contrary to the Statute; I but . ■■■■*■! ■ ^i^i»^»^^i*a De Term, Pafchijc, 1 70 1. 45 but probably the Mandamus would not confine him to any particular Manner of doing it ; for which Reafon it might be done by Citation, if that were more pro- per: Befides, the Adminiftration might have been granted in Time of Vacation before Application could be made for a Mandamus. But afterwards, on great Confideration, a Mandamus was denied by all the Court. And, Ver Holt C. J. In the Vacation Time one may refort to the Chancery, and upon a Suggeffion that the Spiri* tual Court has proceeded to grant Adminiifration to a wrong Perfon, may have a Prohibition out of that Court returnable into B. R. or C. B. I'he Authorities that have been cited, are grounded upon a Reafon that is not Law ; for the Adminiftra- tor, at this Time, is not a Servant to the Ordinary, but has as fixed an Interefl as an Executor, who is ap- pointed by the Party himfelf; and though the Ordina- ry be by the Statute of 21 H. 8. cap. 5. reftrained to grant Adminiftration to the next of Blood, yet he is not fo reftrained, as to make an Adminiftration grant- ed by him, though contrary to the Statute, a meer Adminifira. Nullity ; for if inch Adminiftration were void, then all ^'"" '^°'"- l^ifpoiicions of the Goods of the Inteftate, pending the Irar/'to the faid Adminiftration, and before the Repeal of It, would ^""'f'; ■'^ , • 1 ir J r • 11 not void, be void alio ; and after it was repealed, Trover would but voida- lie for thefe Goods, which cannot be. * ^'^* Thus if an Adminiftration committed to a Creditor, be afterwards repealed at the Suit of the next of Kin, the Creditor fliall (a) retain againft the rightful Admi- («) 6 Co. nlftrator; and all Difpofitlons of Goods made by him ^'^' - pending the Citation fhall Hand; for this is not like the Cafe of an Adminiftration granted by a Rijhop of 44 1^^ Term. Pafchce, 1 70 1. an inferior Diocefe, where the Intcftate had Bona Nota- bilia in divers Diocefes, becaufe there fuch Adminiftra- tion is abfolutely void. It fliall be a good Return to the Mandamus, that Adminiftration is already commit- ted, and that there is no Lis pendens. Not that I would be underftood to intimate hereby, that in Cafe there had been a Citation pending, I fhould have been for grant- ing a Mandamus ; but without Queftion, before this the Motion is made too foon. {a) I Sid. In the Cafe of {a) Sir George Sands, the Admin iftra- ^''^' tion was granted to the Brother, who continued to ad- minifter fome Time, and afterwards, one pretending to be the Wife of the Inteftate, commenced a Suit in the Spiritual Court to repeal the Adminiftration commit- ted to the Brother, inlifting, that it ought to be com- mitted to the Wife; and the Brother applied here for a Prohibition, becaufe the Ordinary had a Power to grant it either to the Wife, or next of Kin j and it was held, that the Ordinary could not repeal the Adminiftration granted to the Brother, for that he had executed his Authority. There was the Cafe of Duncomb verfus Mafon, where a Feme Covert died Inteftate, having Debts due to her, (which the Law does not give to the Husband ;) and Adminiftration being granted to the next of Blood, the Baron fued in the Spiritual Court to repeal this Admi- niftration, and after Prohibition and Declaration there- upon, the Qiieftlon was, whether the Husband fliould repeal this Adminiftration ? And refolved he fiiould : On the other Side the Cafe of Sir George Sands was objedted, but the Court were of Opinion, this Cafe was not at all affe6led by that of Sir George Sands, for that the Husband had an original Right by the 31 Edip. 3. cap. 11. as the moft loyal 4 Friend De Term. Pafcha:, 1701. 49 Friend of the Wife, and was not within the 21 H. 8. cap. 5. fo that the Ordinary had not an Eledion in cafe of the Husband. It was alfo held, that the Grandmother was, at leaft, as near of Kin as the Aunt ; for in the Cafe of a Difcent of Lands, it would be a mediate Difcent, and the Medium to both was the Father ; and it was enough to fay Brother and Heir, or Sifter and Heir, {a) i Vent, which was the great Realon in the Cafe of {a) Colling' ''^'•^'• wood and Pace ; and the Grandmother leemed to have the Advantage, (he being of the right Line, and the Aunt of the Collateral ; wherefore tor thefe Reafons a Mandamus was denied. Note ; Sir Banh. Shower cited the Cafe of Burton verfus Sharp laft Trinity Term, where Adminiftration was fued to be granted to the Great Grandmother, upon which the Aunt moved for a Prohibition in C. B. to ftay the Suit in the Spiritual Court, but a Pro- hibition was denied. The Court having thus refufed a Mandamus for the iSaik. 251. Repealing this Adminiftration, and for the Granting a new one to the Aunt, a Motion was afterwards made by Serjeant Darnel and Broderick, for a Mandamus to be directed to the Judge of the Prerogative Court, commanding him to direct Diftribution of the Inte- ftate's perfonal Eftate to the Aunt as well as the Grandmother. It was infifted, that this Method was proper, the Aunt being intitled to Diftribution by the 22 tf 25 Car. 2. equally with the Grandmother ; that the Di- ftance of Degrees was to be computed from the Inte- ftate, and not between themfelves ; that by the Canon Law the Aunt was as near in Degree as the Grand- N mother ; 4<5 De Term. Pafch^, 1 70 1. (a) I inft. mother ; and tho' the Cival Law (a) differed from the ^^' ^' Canon, yet that could not bind us here ; that the De- fign of the 22^23 Car. 2. was to fix a Rule in Di- ftributions, and not to leave it to the Difcretion of the (b) 3 Mod. Judge ; that every Perfon intitled to his diftributory iVern.403. Share had an Intereft (/») veiled in him before Diftribu- 2 Vera. 274. tion aflually madef that the Degree of Relation between the Aunt and the Nephew was only Mediante Patre ; and in a Writ of Formedon, the Plaintiff, in making out his Title, might, without mentioning any other, derive it immediately from the Father : That it was true, by the Civil Law, the Grandmother, (or indeed any Anceftor immediately lineal to the Inteftate, tho' never fo remote,) fhould be preferred, as being in the lineal afcending Line, and in loco Parentis, before the Brother and Siller or any other in the Collateral Line ; but that feemed againft all Reafon ; that in the Cafe of Carter verfus Craxi-ley, Raym. 494. no Notice was taken of the Grandmother. Sir Barth. Shower coni: The 22^23 Car. 2. does not warrant this Mandamus ; for it does not oblige or enable the Ordinary to do any Thing which was not the Courfe of their Courts before j it may, pof* fibly, be a good Caufe of Appeal, but can be no Ground for a Mandamus, being a Matter of Ecclefiafti- cal Jurifdiftion ; by the Civil Law, the Grandmother is nearer of Kin than the Aunt. I admit a Manda- mus may be granted to make Diilribution generally among the next of Kin, but not to command the Ordinary to grant Diftribution to A. and B. as next of Kin in particular; for that would be to take from the Spiritual Courts the Power they have of judging 4 which () Shatter verfus Friend, where they (A)Saik.547. would not admit of Proof of Payment of a Legacy ''"'•^'^^• by one Witnefs. Shovper : The Superior Court never fends a Manda- mus to an Inferior Court to a61: contrary to their Rules and Opinions ; as on a Reverfal of a Judgment, it is the Superior Court that gives the {c) new Judgment ; (') ^'^^^ the Superior Court often fends Prohibitions to Infe- rior Courts, but how can this or any other Court command a judicial Officer to aft againll his Opinion? Afterwards 48 De Term. Pafch^, 1 701. Afterwards Dr. Lane argued againft the Mandamus, that the Grandmother flood in the Place of the Fa- ther and Mother, who, by the Civil Law, had the Right of SuccelTion, excluiiv^ely of the Brothers and Sillers ; that the Grandmother, by the Civil Law, flood in the fecond Degree to the Inteftate, and the Aunt in the third. It was true, the Canon Law differed in placing the Aunt in the fecond Degree, the Reafon of which was, on the Account of Marriages, for in that particular, they were apt to confound the Degrees of Nature ; that the Aunt in this Cafe was the Daughter of the Grandmother, and could not be in equal Degree with her Mother ; fo neither could fhe be intitled by the Statute of Diftributions, nor confequently to a Mandamus ; that the Children of Uncles had no Right to Dillribution by Reprefentation, in Concurrence with the Uncles, as had been adjudged and confirmed by conftant Practice; that if Mo- thers Children before the Statute of i Jac. 2. cap. 17. had no Right to Diftribution, then furely the Grand- mother's Children could have no Right, till it was given them by fome Law. Holt C. J. If a Child had died Inteftate without Wife, Child or Father, living only the Mother, the Mother had the whole till i Jac. 2. exclufive of the Brothers and Sifters ; and there muft be the fame Law now, as to the Grandmother with Relation to the Aunts ; the Father furviving has the Child's whole E- ftate at this Day. Che/Jjire: No Mandamus ought to go, at leaft till the Court have erred, for this Court will not antici- pate the Judgment of the Spiritual Court. I . Holi De Term. Pafcha, 1 70 1. 49 ■■ ■« Holt C. J. Before the Statute of Ed. 3. the Ordi- nary having the Power of Diftribution, ufed to dlfpofe of Part among the Relations, and the other Part to Cha- rities ; but that Statute took away fuch Right from the Ordinary, and (a) fixed the Title to the perfonal Eftate W Ante 43 in the Adminiftrator. And before the 22 l How the The Laws of Englmd, and not any foreign Laws, Law ftooJ yy„|-j(. f(3 Govern this Cafe. It mull: be obferved, that formerly & b ^ i i i r i i v.'ith Regard by the ancient Laws here, both berore and at the do^infin- Conqueft, all the Defcendants, Sons and Daughters in heritance. general, did inherit as well the real as perfonal Eftate (;///. afcending Line, to the utmoft Degree, was anciently ft^r^Xfthe preferred before the neareft Collaterals ; but that may Common now be altered by the Statute of Car. 2. which prefers ^^^'3- the next of 3{in, tho' Collateral, before one tho' Li- neal that is more remote. But in our Cafe, the Grandmother is nearer of Kin to the Inteftate than the Aunt; for the Aunt is not of Kin to the Inteftate, but as ftie derives her Kin- dred from the Grandmother her Mother, and there- fore not in equal Degree; befides, where one is lineal and the Caufe of the Kin, and the other collateral, the Parfon who is lineal Ihall be preferred ; here the Grandmother is the Root of the Kindred, and fo muft be nearer than they that derive their Relation from her. This Rule of Succeftion in the afcending Line is a- greeable to the Laws of other Nations ; for by the conftanc 5*2. De Term. Pafchac, 1701. HHWv of ^^^"'^^'^'^ Pra£llce of the Jerciflj (a) Nation, for want the Com- of IfTue of the Son, the Father fucceeded to the Pur- mon Law 209. chale of the Son, excluding the Brother, according to the Conftru£lion of the Jeyvifl) Doftors upon the xxvii Chapter of Numbers. As you find it in Selden, De Sue- cefjionibus apud Hebr^os, cap. i 2. And indeed by' all Laws, (excepting that of Juflinian,) the Father was preferred to the Brother ; but our Cafe falls not with- in the Reafon of Ju^inim% Law \ tho' if it did, the Civil Law obliges us here, only as it has been ancient- ly received, and it could not have been received tern' pore Henrici primi, who lived about the Year of our Lord 1 1 00. for that the Works of Juftinian were firft '" publiilied about Anno Dom 560. and were pra6lifed about forty Years; after which they were totally neg- le6led in the Empire for 500 Years, and new Laws were fet up by the Emperor Bafilius, which were fol- lowed till the taking of Conftaminople, Anno 1453. and till the Year i 125. (which was the 25 H, i.)the Laws of Jnflinian were not again heard of: But about that Time were found by Lothar at the taking of Amalfi, 1 and * The Works of Juftinian were publifhed in the following Man- ner, viz. The Code was the firft Book which the Emperor Ju- ftinian ordered to be collefted (for the mofl part) out of the Con- ftitutions of the former Emperors difperfed in the Gregorian., Her- }nogenian, and 'Theodofian Codes. There are only fome Fragments left of the two firll:, but the 'Theodofw.n is intire : This Work, tho' firft fet about, did not come out till the Year 534. 2. The Digeft or Pandeols came forth in the Year 533. and is divided into fifty Books -, it is colkfted from the Commentaries of the ancient Law- yers, their Refponfes, and other Writings. 3. The Liftitutes came out alfo in the Year 533. and are divided into four Books -, they are a Syftem of the whole Body of the Law, but not fo diftinft and comprehenfive as it might be, neither fo uieful at this Day as at firft ; the Inftitutes fometimes correft, or are contrary to the Digeft. But the fecond Publi- cation of the Code came out after them, in which fome Things are o- mitted which the Inftitutes refer to from the firft Publication. Laft of all the Novels or Aiuhenticks were publifhed at feveral Times without any Method; they are called Novels becaufe they are 7iew Laws; and AuthenticiiS, becaufe they are tranflated exadlly and authentically from the Creek Tongue. Vide Wood's Inftitute of the Civil Law, in the Introdudlion, p. 5 & 6. De Term. Pafchie, 170 1. ^3 and were publldied at the Unlverfity of Bologna', as appears by Mr. Seldens Notes on Fortefcue, cap. 1 8, 19. Selden of Tithes 490. and alfo in a (a) Treatlle de ufu ^ ^"^ ^'^- ^• autboritate Juris Civilis Romanortim, by Dr. Diick^ who was reputed to be an eminent and learned Civihan. So per toi Cut' a Mandamus Was denied. See the Cafe of Moor and Barham, i 3 May 1723. at ^""■andfathcr the Rolls ; One died Inteftate, leaving a Grandfather ther's Side", by the Father's Side, and a Grandmother by the Mo- ^"'' Grami- ther's Side, his next of Kin ; thefe (Grandfather and the Mother's Grandmother) Ihall take in equal Moieties by the Sta- i;;i','J"j"^ tute of Diltribution, as being in equal Degree ; for the Statute of tho' the Grandfather by the Father's Side, may, in fome J?^""''"' Refpe6ls, be more worthy of Blood, yet here Dignity of Blood is not material ; in fegard the Brother of the (b) Half Blood fhall take equally with the Brother (^) Ca''<;s '" of the whole Blood ; and the Mafter of the Rolls Cinh. 51. (Sir jfojeph Jekyll) was fo clear as to this Point, that he would not fuffer it to be debated. '' D E 94 — ^-^i^i|— Ti^^^^— ^— ■ ■ I — ^M^M ^I^— ^W^l .L ,1 ■^■■■■^ . . I . ^Ml Bi l l IliM w i l l i ^- D E Term. S. Hillarii^ 1702. Cafe lo. Bamfield verfus Popham. Saik. 236. T^HE Cafe in EfFe£l was: A. feifed in Fee of the 2Vern.427, J^ Lands in Qiieftion, devifes them to Truftees and No Eftate ^^^^^ Heirs, to the Ufe of them and their Heirs, in raifedbyim- Truft for the Defendant Popham for Life, with Re- plication in a j^ainder to his firft, ^c. Son fucceflively in Tail Male, Will can de- ' ■' , ' itroyanex- and foT Want of Ijjue Male 01 Popham., Remainder over. prefs Eftate; as where a Devife was to A. for Life, Remainder to his firfi: Son, and fo to every other S( n in Tail Male; and for Want of Iflue Male of y/. Remainder over ; This was no Eftate-tai! in A. by Implication. Q^ Whether this Cafe be not wrong reported by Salkeld, & vide port: Attorney General verfus Sutton and Paman. Afterwards, the Teftator by a Codicil^ reciting that he had by his Will given the Premiiles to Popham, and ' the Heirs Male of his Body, now he wills, that if that Eftate Ihould determine, and Popham fliould die without: Jjfue Male, then his Eftate ftiall be difpofed of in fuch Manner, ^c. Popham had no Ifliie Male, and on the Remainder- man's bringing a Bill to ftay Wafte, the Queftions were, ifl. Whether the Words of the Will, ifcil) for Want of Jjfue Male of Popham, did not by Implication I give De Term. S. Hill. 1702. 5*^ give an Eftate-Tall to Popham, and confeqiiently render him difpunilhable for VVafte ? Or, Secondly, Wliether (admitting the Words in the Will did not give an Eftate-Tail) the Codicil, reciting that the Teftator had by his Will devifed the Premill'es to Vopham and the Heirs Male of his Body, would not fo far influence and explain the Will, as to make it an Eftate-Tail, though it were not fo before ? And this having been argued already in Chancery, came now to receive a folemn Determination before Lord Keeper Wrightj C. ]. Boh, C. ]. Trevor, Sir John Trevor, Mafter ot the Rolls, and Porvell J. who all gave their Opinions feriatim. That Popham had only an E- ftate for Life by the Will, and that the fame was not enlarged or altered by the Codicil. Firfl, They all refolved, that here being an exprefs Eftate given to Popham for Life, with Remainder to his firfl: and every other Son, ilfc. the Words [if Pop- ham fhould die without Iflfue Male] Ihould not enlarge this Eftate to an Eftate-l'ail ; in regard thele amounted only to make an Eftate-Tail by Imphcation j and Words of Implication would nei'er deftroy what was before expreffed (<^j ; fo that the Words [if he fhould die with- [a) Ante out lilue Male] could mean no more, than if he Ihould g^'^''^"f"s die without Sons. And though it might be objefted, that unlefs thefe Words were conftrued to create an Eftate-Tail in Pop" ham, then a pofhumous Son would not take, which would be contrary to the Intention of the I'eftator : The Anfwer was, that notwithftanding it might have been intended that fuch pofthumous Son ftiould take, yet the Teftator was herein miftaken as to the Law, f;6 De Term. S. Hill. 1702. Law, or might not confider of it; and this was but a remote Mifchief or Contingency ; whereas it was very obvious, that the Teftator intended it fliould not be in the Power of Popham to bar the Remainders, which it was plain he could do, if he had an Eftate- Tail ; fo that this being a Mifchief near and eafy to be forefeen, it was certainly in the Intent of the Teftator to obviate and prevent the fame ; and it was a Maxim in Law equally certain, that where there is an exprefs (a) Poft idk Eftate limited, no Implication (a) ought to be admit- IndHumZr- tcd to coutroi it J ExpYeffum facit cejfare taciturn. Jhne \'errus (b)"2 Vern? Bt per TrcvoY C. J. In the Cafe of (/•) Penhay verfus 370- Hiirrei it was held, that if there be Cefluy que Trufl for Life, Remainder to his firft, ilfc. Son in Contingency, the Cefiuy que Trufl for Life cannot deftroy the contin- gent Remainders: And the Devife in the principal Cafe being byway of Trufl, that may fupport the Right of a Pofthumous Son ; But to raife an Eftate by Inten- tion or Implication, contrary to what is before ex- prefTed, is to fay, a Man thinks differently from what he fpeaks, which is unnatural and unreafonable. It is true, if I devife an Eftate to J. for Life, Remainder to the Heirs of his Body, in this Cafe, notwithftanding the exprefs Eftate for Life, yet the fubfequent Words do merge and deftroy it, by turning it into an Eftate-Tail ; but the Reafon is, becaufe here fuch fubfequent Words are exprefs Words 3 Heirs of his Body are exprefs Words of Inheritance, and a Limitation in Tail ; which is an Anfwer to the Objection from Lctpis Bowles's Cafe, ( 1 1 Co. 80.) for there alfo we find an exprefs Limitation in Tail: But in the principal Cafe, the Ralfing an E- ftate-Tail by Implication would contradldl: the exprefs Limitation, and confequently the Intent of the Tefta- tor. As De Term. S. Hill. 1702. 97 As to Sundays (a) Cafe m 9 Co. 127.^. there was a (<») Poft DevKe to A. generally, (exprefling no Eftate) and if A f/7f7^"., llioulJ have no Iffue Male, Remainder over, which, -^ Ej^/^y, for that Reafon, was rightly adjudged an Eftate-Tail. ^ " '•*'""** Poxpell J. There is no Difference between a Deed and a Will in this Cafe; for if a Man does by Deed give Lands to A. without exprefling any Efl:ate, and after- wards adds the Words, If J. die without IlTue, then to B. this makes an ^ Eltate-Tail. PerL feft. 175. As to Robinfons Cafe cited by Lord Hale, i Fent. 230. King verius Melling, if I devife Lands to A for Life, and if he die Jans IlTue, then to B. as this Cafe is put in Moor 6^z. and i Roll. Abr. S-^i.pl. 12. it differs from the Cafe put by Lord Hale (7;/^.) no ex- prefs Eftate for Life is given to A. But if it be Law as puL by Lord Hale, it mufl: be upon this Suppoficion, that the Devifee over was Heir at Law, (vi^.) One devi- fed Lands to A. for Life, and if ^. died without Iflue, then to his [the Teflator's] right Heir : Now this might be allowed to be an Ellate-Tail in A. without contra- difting the Refolution in the principal Cafe ; for where the Devifee over was Heir, there muft have been a moft neceffary Implication, that A. the firft Devifee iliould have an Ellate-Tail, becaufe the Heir of the Teflator was excluded from taking, until the iirll: Devifee died without Ilfue; which Diftin£lion ferves alfo to anfweri?^?-- leys Cafe, put by Lord Hale in the fame Place in Ventris. With regard to the Cafe of Clark and Day, reported I Roll. Abr. ?,i/). pi. 4. Moor 593. Owen 148. Cro. Q, ' Eli^. * But of this the Lord Keeper doubted. And vide Vangh. 2 c,(j. er ante Vifljcr verfus Wigg contra. But his Loreiniip held, that where in the X'remifres an Eftate is given by Deed to one and his Pleirs, and ii* he die without Iffue, i^c. thefe Words are fufficient to rcftrain the tbrraer Words, and turn the Fee into an Entail, but will not of thcmfelves cre- ate an Eftate-Ta.iI. <;8 De Term. S. HilL 1702. EUi^i. 313. where one devlfed Land to his Daughter Roje for Life, and if Ihe married after the Teftator's Deceafe, and had Heirs of her Body, that then fuch Heir fhould have it after her Death, and the Heirs of their Bodies; and if Hie fliould happen to die without lifue, then the Teftator devlfed the PremilTes to his Daughter P. It is Indeed faid per Rolle, that Rofe had an Ell:ate-T<;z// "^j but by Moor (with whom "Lord Hale agreed In KJn^ and Melling's Cafe) Rofe had only an E- l1:ate for Life; though In the arguing of the Cafe of King and Melling^ the Roll being brought into Court, it appeared that no Judgment was ever entered. In 43 1."^ and' ^^^2 C^'^Q oi Loddington and Kyme {a), C. B. 7 JF. 3. a Saik. 224. Devlfe was to T. S. for Life, Remainder to his IlTue, which Pia- ai^cl if he died without Ifllie, then to another ; yet re- ces tjie Cafe folved that A. had an Eilate for Life only, in regard IS reported , ^ ^ j j ' a ihongerthaii the vvords Were exprels. here cited, tiiere being the Claufe, without Impeachment of Wafle, and alfo Words of Limitation fupcr- addcd to the Devife to the Ifllie, As to the fecond Point, (w*^.) whether the Tefl:ator*s Recital in his Codicil, that he had devlfed the Eftate to Pophamj and the Heirs Male of his Body, would al- ter and enlarge the Eftate given to him by the Will ? It was refolv^ed, It fliould not ; thefe Words beinii iufhciently fatisned, though Popham had no Ellate-Tail ; for, iid vulgiis, where an Eftate is fettled upon one for Life, Remainder to his firft, Hsfc. Son, this is ufually called Intailing an Eflate ; that is, when it is fo limited as not to be in the Power of the firft Taker to difpofe of it ; and every one that Is to claim by fuch Settle- ment muft be Heir Alale ; for the firft Son after the Death of his Father is Heir Male. I But * It appears from die Report of this Cafe in Croke, that Gaudy and Fejtner, Juftices, held, Rofe had but an Eftate for Life, againft the O- pinion of Fofham C. J. who thought ftie had an Eftatc-Tail. Do Term. S, Hill. I'joz. 99 But if It were not fo, and the Recital falfe in this Refpe£l, yet, per Holt C. J. a falfe Recital In a Will fhall not amount to a Devife. As in 2 Vcntris 56. Wright verfus IVyi.rll, one by Will recited, tliat he had given an Eftate to his Wife for her Jointure, whereas in Truth he had not ; and refolded, that the Will did not amount to a Devife, nothing being intended to pafs thereby. Thirdly, It was agreed likewife, that the Word [Heir] was not always and of Necelhty to be intended as a Word of Limitation ; thus in 2 J^ent. 311. Burchett A'er- fus Durdantj a Devife to A. for Life, Remainder to the Heirs Male of the Body of J. now living, thefe were Words o^ 'Pur chafe: So in Raym. i-jH. z Jones 114. Lijle verfus Grey. Lands were limited to A. for Life, Remainder to his firft and every other Son in Tail, and fo feverally and refpeftively to every of the Heirs Male of the Body of A. and the Heirs Male of the Bodies of fuch Heirs Male, in this Cafe the Words [Heirs Male] were underftood to fignify Sons, and to be Words of Purchafe. Upon which, the Court decreed an Injun6llon to ftay Wafte ; and an Account to be taken of what Tim- ber had been already felled. Vide the Cafe of Lang ley verfus BalJtvin, referred May 1 707 out of Chancery to the Jiulges of C. B. and how that difTcrcci'from the Cafe a- bove, forafniuch as the Limitation tliere being not to all the Sons of the Grandfon, if there had been more than fix, and the fix had died with- out Iflue Male, unlefs it had been conftnitd to be an Eftate-Tail in the Grandfon, the Remainder-Man mufl; have had the Lands in Prefe- rence to a fcvcnth Son. Vide alfo pod ylttorncy Gcucral verfus Sutton and Payman. D E 6o D E Term. S. Michaelis^ 1702. Cafe II Watts verfus Bui las. Lord Keeper Wright and A^q/Ier of .._. 1 • -r. 1 the Rolls. I 6". made a voluntary Conveyance to his Brother A voluntary 3 • ^J ^^^ ^"^^^^ Blood, which was void and defe6live Conveyance at Law ; aftcrwards J. S. died without IfTue, upon Brother by^ which the Brother (who by Reafon of the Half Blood the Half could not bc Heir to J. S.) brought his Bill againft the wWch'w^ Heir, to compel him to make good tliis Conveyance. void and de- ftxflive at LaWj made good by a Court of Equity, againft the Heir, For the Defendant it was objeiled, that this being a voluntary Conveyance, it ought not to be made good in Equity, efpecially againft an Heir at Law. But Lord Keeper was of Opinion, that as the Con- fideration of Blood would at Common Law raife an Uje, and as before the Statute of 27 H. 8. fuch Ccfltii que Vfe fhould have compelled an Execution of the Ufe in a Court of Equity ; fo would this imperfe6l: Conveyance raife a Tmfl, in refpe£l of the Coniidera- tion o't Blood, and confequently ought to be made good in Equity. I And De Term. S. Michaclis, 1702. 61 And it being fald by Mr. Pooky, that though a Con- veyance to younger Children would, if void at Law, be made good in Equity ; yet it had been decreed in the Houfe of Lords, that they would not fupply the Want of a Surrender in Cafe ot a Devife of a Copy- hold to Grandchildren ; and by the fame Reafon Equity Ihould not regard the Relation of a. Half-Brother : To this the Mailer of the Rolls anfwered, that it So wouij was his Opinion, fuch a Devife of a Copyhold, with- a'su'^rralder, out a Surrender, ought to be made good for Grandchil- '" ^'^^^ of a dren, as well as Children ; and if the fame Cafe were CopyhoU to to come now into the Houfe of Lords, it would be fo Grandchii- ruled % and that he had, and would decree it fo. * The lilce was alfo declared per Lord Harcourt in the Cafe of Free- jlone verlus Rant, [Trin. 171 2 J And it is obfervable, that the Cafe of Kettle and Town/end (here referred to by Mr. Poole)') being cited before Lord Cozvper, in the Cafe of Furfakcr verfus Robinfon, {Mich. 1 7 1 7) his Lordfliip doubted thereof, in regard the Grandfather, by the Aft 43 Eliz. for maintaining the Poor, is bound to maintain his GraWcM^; which he fiid, lie believed was not taken Notice of in that Cafe. White verfus Nutt. cafc 12. « C^ N E by Articles, reciting- that he had an Eftate On Cafuai- ^-^ for two Lives in a Church Leafe, covenanted to in-between convey his Title to the PremiiTes by fuch a Day, to the Articles J. S. as J. S. or his Counfel ihould advife* chafe and the Sealing of the Conveyance, who {hall bear th.e Let. It happen'd, that after the Articles, and before the Time appointed for the Conveyance, one of the Lives dropt. And the Qiieftion being upon whom the Lois fiiouldfall? R Ic 6z De Term. S. Michaelis, 1702. It was decreed per Lord Keeper : That in regard here was no Default in the Seller in making the Conveyance, the Lofs of the Life ought to be born by the Purchafer, in the fame Manner as if the Reverlioner had articled to fell the Reverfion expe£lant upon two Lives, arid one of them had died before the Conveyance, the Pur- chafer fhould there have had the Benefit of it; and in each Cafe, in Equity, the Eftate is as conveyed from the Time of the Articles fealed. But his Lordfhip feemed to think, that if ^// the Lives had dropt before the Execution of the Conveyance, it might have been another Conlideration, for that the Mo- ney was to be paid upon the Conveyance, and no Eftate being left, there could be no Conveyance. ^tsr. tamen the Reafon of this Diftindion between the Lofs of Part and of the Whole, & vide the Cafe of Cafs verfus Rudek Ss" ) Hale's "z^' 3 3 • and Chap, xxxvi. For tho' by the Jerpijh Law, ^hcclm- ^^^ Males inherited exclufively of the Females, and the moa Law, eldeft Son had a double Portion oi his Father's Eftate, P- ^'°- 4 which De Term. S. Hill. 1703. 6^ which was confined to him as the firft Begotten, yet we find when Zelophehad the Son of Hepher died, lea- ving no Sons but Daughters., and the Daughters came unto Mofcs claiming the PolTeflion of their Father, this being a new Cafe, Mofes is laid to have brought their Caufe before the Lord, who commanded him to give them the PolTellion of their Father ; fo that it was here determined, that they fhould take the double Portion tliat belonged to their Father, as the eldel-t Son, by Right ^ of Reprejentation. So is Selden de Succejjionibus apud Hebr^os, cap. 25. The fame Law was Part of the twelve Tables, and from thence came to be obferved among the Romans j and here in England, the Right of Reprefentation holds as well in cafe of Inheritances ckfcendible by Cuftom, as by the Common Law. So in the Cafe of Gavelkind Lands, where the Cuftom in Pleading is thus fet out; (Rafi. Ciifl. 143. a.) quod terr^ ^ tene- menta de tenura de Gavelkind de tempore, iffc. inter kere' des majculos partibilia, i^i' partita fuenmt ; and yet, if a i" Cafe of Man feifed of Gavelkind Lands has Iflue three Sons, j^^^^^ '"f one of which dies in the Life of his Father, leaving one of the lilue a Daughter, and afterwards the Father dies, there In "L Life of can be no Doubt, but that this Daughter lliall inherit ["^^ ^^^^^er, the Purparty of her Father, tho' flie be not within the Daughter, Words of the Cuftom, (Jcil.) That the Lands are par- J^^p^^^fjif •" tible inter H^redes majculos ; but the Cuftom, by Con- the Daugh- ftru£lion, fhall extend to Daughters, Jure reprxjema- h^.e'hJrFa- tionis. And there is no Difference between the Cuftom ther's Share, of Gavelkind and this of Borough- Engl/Jh, only in Re- fpecl of the Qiiantity of the Land which the Heir takes ; there each Son taking an equal Part, but here the youngeft takes the whole, which will not vary the Reafon in Conifrudion of the Cuftom. The 66 De Term. S. Hill. 1703. TheCuftom The Common Law takes Notice of thefe Cuftoms CoJ''hoid''^ of Gavelkind and Boroiigh-EngUPj : And there is a very Landsofanv remarkable Cafe adjudged in Lord Bridgmans Time, h,rfcired' ' ^^'hJch is not reported in any printed Book ; it was in ihail defcend the Years 1^60, 1661, Intra: Hill. 1655. R^ot. 779. tftSon°"nj' ^'- ^' '^^^^' ^^^ ^^^^ '^'^^ ' ^^'^^^^^ ^^'^^ Cafe was, a Surrender j^at the Copyhold Lands of every Tenant dying a Coyhoid feifed, were by the Cuilom of the Manor deicendible to the ufe ^^^ f|-|g youngeft Son, and a Surrender was made to his Heirs!!"' the ufe of B. and his Keirs, who died before Admit- ^""^ Ad ^\i ^^^^^ '• ^^ ^^'^^ agreed, if B. had been admitted, the tance, his youngcft Son, after his Death, fhould have inherited ; tideft Son, j^^^j. jj^ j-ecrard B. died before Admittance, the Queftion and not nis o i i n i n r^^ youngeft, \vas betwccn the eldeit and youngelt Son of B. who Itlitnd.-- ftoi-^W have the Land? and adjudged, that in this jirus if the Cafe, the eldefl Son fliould have the Land, becaufe of be'ln laid to the StraitHcjs of the Cuftom, and there never having have been of [^ggj-, ^j^y Cgifm in the Anceitor ; but, by my Report oi Boroush- it would have been otherwife, had it been alledsed r?fThi- ^'^^^ ^^^ Lands were in the Nature or Borough-Engli/I?, fcemstobe which it was uot, but only fet forth as a particular the fame c^^[\q^ . for the Law takes Notice of the Cuftom of Cafe that is ' r i • r • I cited in Borough-Englijfj, but not or this ipeciai Cultom; which i59,*'''under' '^ likewifc the Reafon, why in Pleading that Lands are the Name of of the Nature of Borough-Englijh, you need not fet KrlerT"" ^'^^'^^ ^he Naturc of the Cuftom fpecially. This Cafe feems at firft to be ngainfl me ; but the Reafon of the Diftin6lion there taken is on my Side; in the prefent Cafe, the finding of the Cuftom does not exclude the Daughter, but on the contrary ex- prclly comprehends her ; for it is found, that the I.ands are defcendible to the youngeft Son and his Heirs ; tho' without that exprefs Mention of his Heirs the Daughter lliould have inherited. Now this Cu- ftom is not to be taken ftri£lly, and according to the 1 Letter, De Term. S. Hill. 1703. 67 Letter, but lliall receive fuch Conftru£lion as may comprehend necellary Confequences and Incidents in Courfe of Dilcents ; and therefore, tho' the Father One fdfed be dijfeifed and die, lo that he is not feifed at the °f Borough- Time of his Death, yet the Right of Entry fhall de- LSsisaf- fcend to his youngeft Son; and tho' the Son die before '"l^f'^^ '''''■* ■' Y . . icifed vet any Entry, yet, without Doubt, the Right will go to the the Right to Daupliter, notwiihilandins the Son could not be faid ^l,"',,^"/' . to have died jeijed, withm the Words oi the Cuitom. to the youngeft So in this Cafe, if a Difcent be cafl:, the youngeft Son lliail have his Age, as much as if he were Heir at Common Law ; and there is no Reafon why the Reprefentative of the youngeft Son, (vi^.) the Daugh- ter, ftiould not be included within the Meaning of the Cuftom. In the Cafe of Reeve verfus Malfter, i Rol. Ab. 6i/^, pi. I, I Jones 561. Cro. Car. 4 1 o. The Cuftom of the Manor was, that if any Perfon died feifed in Fee-Jim^ ■pie of Lands within the Manor, the fame iliould de- fcend filio juniori hujufmodi tenentis cuftomarii Jic obientis feijiti, fecmdum naturam de Borough-Englifti ; and a Tenant of the Manor being feifed in Fee, furrendred his Lands to the Ufe of himfelf and his Wife, and his Heirs ; afterwards he had Iflue three Sons, and died fo feifed of the Reverfion, and afterwards the youngeft Son died in the Life-time of the Mother, without Ifllie, and then the Mother died: Upon which the QLieftion be- ing, whether the eldcfl^ or middle Son fliould inherit? the Judges were thereupon divided. Berkeley and Bramp- jhn held, that the middle Son ought to have the Land; but Jones and Crook were of Opinion for the Eldefi. Now I obferve, that there the Cuftom was more fpe- cial than in our Cafe, it not being, that if a Man died feifed generalhy the Lands ftiould defcend to his youngeft 6S De Term. S. Hill. 170^. youngeft Son ; but if he died feifed fpecially, ifcil) in Fee-fimple. Tho' in that Cafe Jones and Crwk declared it as their Opinion, that if the Father had been dif- feifed and died, the youngeft Son fliould not have in- herited 5 which makes it feem lefs ftrange, that they (liould exckide the middle Son when the Cuftom was fo fpecial', for the Father did not die feifed of the Fee- jimple, but of the Reverjion. But let that Cafe remain undecided, the Cuftom there differs from ours. It was objefted by Mr. Weld, (who argued on the Part of the Defendant) that whoever takes by Difcent muft make himfelf Heir to him who was laft feifed ; and the Daughter cannot make herfelf Heir to the Grandfather. But in Anfwer to that, it muft be here intended, that ftie is to make herfelf Heir to him who was laft feifed according to the Cuftom ; and if the Cuftom ex- tends to her, (he is then Heir to her Father or Grand- father laft feifed ; and as the Daughter of the eldeft Son at Common Law, Jure reprafentationis, makes herfelf Heir to her Grandfather, fo the Daughter of the youngeft Son here makes herfelf Heir to her Grandfather by the Cuftom. The Cafe of Godfrey verfus Bullock, i Rol. Mr. 623. pi. 3. is a full Authority for me : There the Cuftom was, that if a Man died without Heir Male, his eldeft Daughter fhould have his Lands ; and the Tenant had no Heir Male, but had Iffue feveral Daughters, the eldeft of whom had Iflue a Daughter, and died in the Life-time of her Father ; adjudged this Grandaughter was within the Cuftom, and Ihould have the Lands by Difcent upon the Death of the Grandfather. Now by the Common Law, the eldeft Daughter has not the Preference before the Reft, but all inherit equally ; yet I Cuftom De Term. S. Hill. 170^. 69 Cuftom may give the Inheritance to the eldeft Daugh- ^ter, and then her litue fliall take it Jure repr^efenta- tionis. l*his is as ftrong as a Ulfcent in Borough-EngUP}. But the Cafe of Sir Jolm Savage^ i Leon. 109, 208* is obje6led ; and there the Cuftom was, that if a Man took to Wife a ciiftomary Tenant of the Matior, and had Iftue, and over-lived her, he ftiould be Tenant by the Curtefy ; and one married a Woman to whom a ciiftomary Tenement did defcend during the Coverture, and had Iffue, and furvived her; yet it was adjudged^ that he fliould not be Tenant by the Curtefy, becaufe the Woman was not a cuftomary Tenant at the Timd of the Marriage, and fo not within the Cuftom, which (fays th\> Book) was to be taken ftriftly. Now admitting that Cafe to be Law, it doth not affeft ours ; for there is a particular Cuftom giving the Eftate to the Hufljand, under particular Salifications : Here the Cuftom alters the Difcent by the Common Law to the eideft Son, and carries it to the youngeft Son generally^ and muft have all the Confequences of a Difcent ; only with the Diff*erence as to the Perfon. This Expofition of the Cuftom will tend to quiet and fettle Eftates and Titles, by introducing the fame uni- form Rules of Difcent in all Cafes; whereas if Jon^i and Croke's Opinion were to prevail, it could not but occafton Vncertaintyt and confequently Confufion. Judgment for the Plaintiff per toi Cur\ Memorandum : Upon the firft Argument, both Holf C. J. and Lowell J. denied Sir John Savages, Cafe to be Law. D fi 70 D E Term. Pafch^^ 1705 Cafe 14. Idle verfus Cook. Salk. 620. T]s[ Eje£lment, on a long Special Verdift, the Cafe Surrender of X ^^'^^ but tlils : Zachunah CUff wsLS felfed In Fee of ^^h'^uf'^ the Lands in Qiieftion, being Copyhold Lands, and of Baron furrendercd the fame ad opus iff ufum pr^difl' ZacharU for'^thciT^ for his Life ; and after his Deceafe, to the Ufe of Va- Lives, y lentine Cliff his eldeft Son, and Alice his Wife, pro iff dii- ojt'natorum ^^^^^ termino vitariim fmrum, iff lurediim iff affignatO' of the faid Yurn, pr^diflorum Valentini iff Alicia, iff pro defeSiu ta- Feme" Tnd l^^ ex'itus, to the Ufc of the right Heirs of Zachariah for Default foj- gygj-, of fuch If- fue, to the right Heirs of A. this is an Eftate in Fee, and not an Intail in the Baron and Feme ; otherwife had it been the Cafe of a Will. Not long after, Zachariah was admitted and diedj and the Queftion was, whether this Ellate limited to Valentine and Alice his Wife, was an Eflate-Tail only, or a Fee-jimple ? If a Fee-j(imple, then Judgment was to be given for the Defendant: Accordingly Judgment was given for the Defendant by three Judges againft Gould J. the Cafe having been thrice argued, and the Court for fome Time divided. 5 Gould De Term. Pa\chce, 170^. 71 Gould J. I am of Opinion, that the Eftate limited to Valentine and Alice is a tee-Tail. The Refolution in the Cafe of Abraham (a) verfus (a) Moor Trig^, cited in Beresford's Cafe, 7 Co. 41. h. wliich ^^^^^ j-jj^, feemed at firft to be againft me, was the only Matter 47«. that ftuck with me; but 1 fhaJI Ihew wherein that dif- fers from the prefent Cafe ; I am fure I have the In- tention of the Surrenderor on my Side. It muft be a- greed, that the Words [_de corpore^ are not precifely ne- cefTary to the Creation of an Eftate-Tail; it is fuffici- ent that there are other Words tantamount ; and I a- gree, that there is no Difference, in Point of Conif ruc- tion, between Limitations of Eftates out of Freehold and Copyhold Lands. In this Limitation here is the Word [Heirs] and it is further explained jvhat Heirs are meant (Jcil.) of Valentine and Alice ; and though the Words be in the Genitive Caie (fcil.) H.eredum pncdiSlo- rum Valentini ^ Alicia, yet they import the fame as if they had been limited in the Ablative Cafe, with the Prepofition de, (vi^.) H^redum de pr^diSl' Valentino i^f Alicia ; and then the laft Words afcertain what Heirs, (fcil.) fuch IlTue of Valentine and Alice. The Refolution of Beresford's Cafe is very flrong for me; and that Limitation, upon Comparison, has no more Words in it than are in our Cafe ; the Words [fuch Ilfue] reflrain it to the Heirs of their two Bodies and do not extend to the Heirs of the Survivor. BecK^ Cafe in Littletons Reports 159, 253,285, 315. and al- fo reported in Cro. Car. ^63, 364. by the Name of Boreton verfus Nichols isf al\ is an Authority in Point for me ; for the Qiieftlon there was, whether the Limita- tion was an Eftate-Tail, or a contingent Fee-fimple? And it was held an Eftate-Tail ; for if it had been a contingent Fee, the Remainder over had been void. As 72. De Term. Pafchcc, 170^. As to the Cafe o^ Abraham verfus Trigg-, the Limita- tion there is not like ours ; becaufe there it is to the life of Gabriel Dormer and his Heirs Males; not to the Uie of Gabriel Dormer and the Heirs Males of Gabriel Dormer aforefaid, as it is in our Cafe {jcil.) and of the Heirs and Afligns of the aforefaid Valentine and Alice, as the Difference is agreed in Littletons Reports 347. It is held in P/oW. 541.4. if a Man make a Feoffment to another, to have and to hold to him and his Heirs, ^ ji contingat that the Feoffee die without Heirs of his Body, that then the Lands lliall revert, the Feoffee takes only an Eftate-Tail, the Generality of the Gift being corrected by the fubfequent Claule; fo is the I 9 H. 6. 7 4. It is obje£led, that the Word [AlTigns] imports a Fee-limple, becaufe an Effate-Tail is not ajjignable ', and the fubfequent Words fhall not control the exprefs Limitation. Refp. I'he Expreflion of [AfFigns] does not an- fwer the Senfe of the Limitation ; for a Man's Afligns are included in himfelf, and implied in the Limitation to the Surrenderees before ; alio the fame Word [Af- iigns] Is to be found in Canons Cafe, 5 Leon. 5. and yet that was adjudged but an Eftate-Tail. Powis J. I am of Opinion, that the Eftate is a Fev-' Jimple in Valentine and Alice. - It Is a conftant Rule, That In every Creation of an Eftate-Tail, it muft appear of what Body the Perfons who are to inherit, muft ifliie. This is of the Ef- fence of the Eftate, 1 Infl. 27. and therefore if a Man give Lands to another, to hold to him and his Heirs Male, the Donee takes a Fee-fimple, becaufe it is not I limited De Term. Pafcbce, 1709. 73 limited by the Gift, of what Body the IfTue Male mufl: be; whereas thofe Words in a Devife carry an Eftate- Tail, becaufe of the Intent ; but in a Conveyance at Common Law, as this is, the Donor muft by exprefs W'ords, give Dire£lion from whofe Body the Heirs inheritable are to ilTue. Litt. feSl. 31. i In/}. 27, 28. 1"] H.%. 27. Hob. 32. 9 H. 6. 3 <>. A Gift to a Man Id' hteredikis de came jm, is an Eftate-Tail, 3 3 Af* fi-zj;^ pi I 5. for the Words \de corpore'] are not fo ftri£l:- ly required, but that they may be exprell by Words tantamount : And the Example which the Statute of Wejlminfler puts hath not thefe Words \de corpore fuo^ I Inft. 20. b. but the Words [_de'] or \ex~\ are abfolute- ly necefTary to make an Eitate-Tail. ^ H. ^. 6. 3 Ed. 5- 743- The Refolution in Beresfordh Cafe turned upon the Word [de.~\ In our Cafe, the Limitation appears at firil: in Latin ready to our Hands in the Genitive Cafe; but in Abraham and Trigg's Cafe, it was in EngliJJ}, and afterwards turned into Latin ; and that Cafe was ad- judged upon great Deliberation j yet ours is much Itronger to pafs a Fee-fimple. But it is objected, that the Words [fuch IlTue] in the fubfequent Claufe import Ijfue of both Valentine and Alice. Refp. Suppofe that to be fo, it ftill omits of what Body that Ilfue is to come, which is the principal Thing ; for upon the firft Claufe, the Heirs of the Sur- vivor take the Whole; and They are fuch lifue, and fo it remains uncertain of whofe Body the Iffue inhe- ritable is to come. It would have been otherwiie if the Words had been [and for Want of Ilfue of the Sur- vivor, i^fcl But here the Words are as general as can be; it was, indeed, the Intent of the Surrenderor U in 74 De Term. Pa^cha, iio^. in this Cafe to give Valentine and Alice only an Eftate- Tail, but then he ought to have made Ufe of proper Words J and there is no Difference in Conftru6lioh be- {a) See ante tween Copyhold (a) and Freehold Lands, as is agreed Fifier verfus ]^ j-j^g Q^fg ^f Sedp-ood verfus Hone, Cm Car. xSi, JVigg. ^ ■> I But it is objected, that voluntas donatoris ouglit to be obferved; and here is a Remainder hmited over. As to that, the Will of the Donor to be obferved, ought to be in Chart a fua manifefle expreffa, which is not fo here : But this Point has been already de- termined in the Cafe of Harrington verfus Smith, 2 Sid. 4!, 73, 74. which is our Cafe in Terminis, and upon a Surrender too; and although it be not men- tioned in the Book whether any Opinion was given, yet by the Note which I have of that Cafe, it was then held to be a Fee-fimple. It will be of dangerous Confequence to allow a greater Latitude in Limita- tions of Eftates-Tail than has heretofore been done. I^orvell J. I am of Opinion that the Eftate limited to Valentine and Alice is a Fee-fimple. The Obje£lion is, that It appears to have been the Surrenderor's Intent to pafs only an Eftate-Tail. But upon great Confideration, I cannot perfuade my- felf to comply with that Intent, without doing a great- er Injury, by confounding the Nature of Eftates, and fetting no Bounds to Limitations ; fo that it will ne- ver be known what is an Eftate-l'ail, and what a Fee- limple. (A) For A Fee-Tail was a Fee-fimple (/») at Common Law; fon'noRe-" ^^"^ there were three Sorts of Fee-limples, Abfolute, mainder Qualified, (which was as to Tim»e only, fcil. as long been limited 4 ^^ upon it. See poft Hayter verfus Rod. De Term, Pafch^, 1709. 7^ as fuch a Tree flood, or as J. S. had Heirs of his Body;) and alfo Fee-limple conditional, which was lirpited as to the Heirs inheritable; for it was not a Fee accruing upon Performance of a Condition, (the Donee having an immediate Inheritance, though it is true he had a greater Power over the Eftate upon the Condition performed,) but upon fuch Perfor- mance of the Condition, he had not an Eftate defcen- dible in any other Manner than before ; no Body could inherit, but fuch Heir as was within the Limitation; but in regard fome were of Opinion, that at Common Law, the fecond Husband Ihould be lenant by the Curtefy, and the IfTue by him inheritable, when the Eftate was originally limited only to the firft Hufband and Wife and the Iftue between them ; therefore to damn this Opinion was the Statute De donis made; upon which Statute the Judges, by Conftruflion, have made two Eftates out of the Fee-fimple conditional at Common Law. The Conftru£lion of Limitations muft be the fame upon Surrenders as upon Deeds ; and though it be o- therwife in Wills, yet even in thefe, notwithftanding the Words [Heirs of: his Body] were not necelTary at Common Law; there always ought, however, to be fome Reftraint of the general Word [Heirs] to make an Ef-late-Tail, as appears in the Cafe of {a) Berne ver- («) Ante {as Allen, Cro. Car. 57. for there the Limitation over '^°^l{"fj]'^, could not poflibly take EfFeft, if the Devife were not "'"s^- meant of Heirs Special. Now are here any Words of Reftriftion to an Heir Special? None, that are fo reitriilive as to fhew an apparent Intent in the Surrenderor, that only the Iftue between Valentine and Alice fhould inherit, any more than there were in Abraham and Trigg s Cafe, which in my Apprehenfion does not difter from this. I 76 De Term. Pafch^e, 170^. I do not underftand my Brother Gould's Diverfity ; I think the Heirs of them and their Heirs are the fame, and the Words \_fuch iffiie] are of no Service ; for they are uncertain, and do not determine of whofe Body ; and the Heirs general, in the firft Part of the Limitation, are fuch Iflue ; but if the Words had been [for Want of Ijfue of them,'] it might have been an Eftate- tail, but all Heirs are llTue of fome Body. We have gone too far already, in helping the In- tention of the Parties in Conftru£l:ion of Limitations; and have made Eftates fo uncertain, that Lawyers do not know how to advife Purchafers ; I cannot con- fent to carry it any further ; Beck's Cafe differs from this, and it was not neceffary, or material, in that Cafe to determine, whether the Eftate limited were a Fee- fimple or a Fee-tail; for if the Remainder was con- tingent, That was fufficient, and in the mean Time, the Remainder in ejfe was executed, and the contingent Remainder never happened ; but there were more fpe- cial Words in that Cafe, fcil. [Heirs Male of his Body,] and altho' the Limitation to the firll: Son of James Beck which fhould have Heirs Males, isfc. was only a Defcription of the Perfon, yet the Words [fuch Iffue'] might likewife well enough refer to the Words \_Heirs Males], which may help the Refolution ; but here are only general Words, and nothing fpecial to refer fuch Iffue unto. The Cafe of Harrington and Smith cited by my Brother ?owis is the Cafe in Point. Holt C. J. I am of Opinion, that as the Words of this Limitation are, the Eflate limited to Valentine and Alice is a Fee-fimple; and that as they ftand originally upon the Surrender in Latiny they canftot be conflrued to make an Effate-tail. ' 4 I am De Term. Pnfcbie, 1709. 77 I am fatlsfied, that it was the Surrenderor's Intent to give Valentine and Alice only an Ellate-tail ; for which Realon, I would willingly have conftrued it fo ; but could not make fuch a Conll:ru£lion confiftently with Reafon, or any Rules of Law. The Conftruc- tion of this Surrender muft be the fame, as if the R- flate had been limited by Feoffment, or any other Deed, and muft be a-like governed by the fame Rules of the Common Law. It is neceffary, upon the Creation of every Eflate- tail, that it be expreffed in certain of what Body the Heirs inheritable Ihould IfTue. Lit. SeB:. 3 i. i Infl. 27. In a Gift of Lands to another to hold to him and to his Heirs Male, the Word \_Male \ was reje^led, and the Word [Heirs'] flood in the Limitation to make a Fee-iimple ; for that it could not be an Intail, there being no Limitation by the Gift, of what Body fuch Iffue fhould be ; and yet in that Cafe it was impoilible to doubt, but that the Intention of the Donor was to make an Eftate-tail ; notwithftanding which, it was held to be a Fee-fimple, and Lord Coke very pofitive in his Opinion. In the prefent Cafe, here is no Certainty of whofe Body the Heir fhall be j and the Words are fufficient to carry a Fee-fimple ; indeed in a Will fuch Words would make an Ellate-tail, purely upon the Intent of the Devifor ; but there is a great Difference betw ixt a Will, and a Conveyance at Common Law, as this is ; for the Law has appointed proper Words to be made ufe of in Limitations of Eflates in Deeds, as the Word l_Heir] to carry a Fee-fimple, and no other Word tan- tamount or equivalent will be admitted ; whereas in a Will it is otherwife; for that Is a new Conveyance X by 78 De Term. Pafch^, ITO'J. by Force of the Statute of 3 2 H. 8. which fays, It fhall be lawful for a Man to difpofe of his Lands by Will, at his Will and Pleafure ; and this is the Reafon, why a Devife to a Man in perpetuum pafTes a Fee-limple, at the fame Time that thefe Words in a Deed give only an Eftate for Life. In this Limitation, we have no reftri£live Words to turn the Eftate, that by Force of the firft Words is a Fee-fimple, into an Eftate-tail ; indeed, if it had been faid, // Valentine and Alice die rvithout Ijfue of their Bodies, that, being exprefs and particular, would have made it an Eftate-tail ; but as it now ftands, the iirft Words carry a Fee-limple, and the latter, being con- fiftent with them, make no Alteration in the Eftate. In the Cafe of 5 if. 5. 5. and H. 6. the Limitations are certain and exprefs of whofe Body. But it Is objeded, that an Eftate-tail may arlfe by Implication, as in Perk.Se6t. 173. I agree that Cafe to be Law, for the Words are ex- prefs, but they are not fo here ; for in our Cafe the Words [fuch Ijfue'] import Heirs general, for there is no Heir but is the Ifliie of fome Body ; fo that is only a Limaitation of one Fee-fimple upon another. If Lands are given to It Lands are ^ Baftard and his Heirs, he takes a Fce-fimple ; and a Baftard" Ld Limitation of a Remainder over upon fuch Gift would his Heirs, j^e void: and yet the Lands cannot defcend upon any Baftard can Other but his (a) Iftue. But no Limitation or an Eftate th^ Hen' ^y W Implication Ihall control a precedent Limitation but fuch as that is exprcfs ; as is agreed in the Cafe of Seafood yet^itis^a' ^crfus Hone, Cro. Car. 367. i Jones 342. And here Fee-fimpie. the Eftate in Fee-fimple is an exprefs Eftate ; whereas (a) I Inft. ^ 3. b^'^'Ante Bamfidd verfus Popham, & poft Humherjlon verfus Humberjlori, & Tomlinfon vcrfus Dighton. I • the De Term. Pafcha, 1709. 79 the Eftate-tail, which it is infifted fliould control ir, arifes but by Implication. The Cafe of Abraham and Trigg is fo ftrong as not to be anfwered, and does not in the leaft dijEfer from the prefent Cafe ; for that was adjudged a Fee-fimple, for Want of proper Words to defcribe of what Body the lifue Ihould be. There is a Difference betwixt a Limitation in the Genitive and one in the Ablative Cafe, as is held in BeresforcCs Cafe ; for the Word [De] is made ufe of in the Satute of IVeftm. i. And if an Eftate be limited to a Man and the Heirs Male of his Body, it muft be tran dated De Corpore fno ; fo if it be faid of any one, he was born of fuch a Father, that, in Latin, would be Genitiis de tali patre. i Infl, 20. b. In Abraham and Trigg's Cafe the I,imiration was in the Genitive Cafe, (Jcil.) and of his Heirs Male. As to the Cafe of Boreton verf. NichoVs, Cro. Car. 3 (^ 5 . reported alfo in Littleton i 5 9. the Words [Juch Ijjfue] muft there be taken to be lifue Male of the Body of y^w^j mentioned before, and the Refolution of that Cafe doth not afteft ours ; there I admit it is a contingent E- ftate, but yet it might be a contingent Eftate-tail. If we ftiould make this an Eftate-tail, it would be re- pugnant to the Words in the firft Part of the Limi- tation, which being to Valentine and Alice their Heirs and AJJigns, fhews the Intention of the Surrenderor to have been, that they fhould have an alTignable Eftate ; and then for us, by Conftru£lion, to make this an Eftate-tail, which is unaflignable, would be contrary to the Inftitution of the Statute De Donis. But it is Objefled, in Anfwer to this, that the Word [AJfigns] is void, they being implied, and included in the Donee himfelf, and EpcpreJJio eorum qiu, i^c. Refp. 8o De Term. Pafchcc, 1709. Refp. That Rule muft be intended, where the Sen- tence is one intlre Sentence ; but ftill thofe Words, which, as to that Sentence, are Surplufage and void, may notwithftanding influence a fubfequent Sentence ; as in Hob. 170. Dyer 16^. b. If I grant my Houfe and my Shop, the Word [Shop] is void, becaufe it paffes as Part of my Houfe; but yet, in refpe£l of fubfequent Words, it may have a Signification : As if I grant my Houfe and Shop, excepting my Shop, here the exprefs Grant of my Shop, has fuch a Signification, and is of fuch Effe£l, as to make the Exception of the Shop void, it being before exprefly granted. D E 8l D E Term. S. Michaelis, 1705. Fellows verfus Mitchell and Oivett. "^^ 's- Ljird Keeper Cowper. TWO Truftees in a Mortgage for 2000/. join in 2Vern.504, an Aflignment of the Term, and in an Acquit- 515- tance for the Money, and each receives a Moiety j Two Tru- after which one proves infolvent ', the Queftion was, Mortage whether the other Truftee fhould be chargeable with ''°'" '" ^" , , , ^ " Aflignment the whole r of the Term, and in a Re- ceipt for the whole, each receiving a Moiety only of the Mortgage-Money; to be anfwerable only for what they refpedively receive. To prove that each Truftee Ihould Anfwer for no more Money than he had himfelf received, were cited Cro. Car. 312. Fofler verfus Tewnley, and Bridgmnn 3 5. the fame Cafe ; alfo Heaton verfus Marriot in Canc\ on Exceptiona, 3 i 05i. i 3 Will. 3. reheard y^». 27. i Jnn^ Reg' -J and lately in Chancery the Cafe of Woodcock and Widdall, who were Truftees by Mr. Lyflers Will, where WiddaJl received all ; and tho' Woodcock joined in the Sale to the Purchafor, yet he was not charged. Vernon com': Each Truftee ftiall be liable for the whole. The Cafe of Fofler verfus Torvnley was only, Y that 8i De Term. S. Michae/is, 1705'. that one Triiftee fhould not be charged where he had not joined in Receipts with the other. In Woodcock's Cafe, the Truftee, whom the Party would have charged, joined in the Conveyance, but not in the Receipt of the Confideration-Money indorfed. In Alkn and WIl- kins' s Cafe, laft Lent Vacation, both Truftees were charged with each other's Receipts. Freeman, on the fame Side, cited the Cafe of Mur' rell verfus Pitt, at the Rolls laft Hillary Term, where two Executors Truftees joined in a Transfer of Eafl- India Stock, and received in Moieties ; and on one's proving infolvent, the other was charged wath the whole. Alfo the Cafe of Widmore verfus Bond, twice heard before Lord Sommers ; two Executors died leaving each an Executor j decreed, at firft, that they Ihould be an- fwerable only refpedllvely for the Receipts of their fe- veral Teftators ; but upon a Rehearing, the Court charged each with the whole. Cur: This is a Cafe of Difficulty ; the laft Lord Keeper took Time about it. It is attended with Circumftances fomewhat uncom- mon ; for the Cefluique Tritfl has admitted, that he was prefent and conlenting to the Payment of the Money in Moieties, and that at his Importunity the Truftees joined in an Acquittance for the whole. The Cafe of Heaton verfus Marriot is an exprefs Au- thority for the Truftee, that he ftiall be only charge- able for his own Receipts. It may be reafonable, where upon the Proof it can- not be diftinguilhed, how much was received by the 5 one De Term. S. Michaelis, 1709. 83 one Truftee, and how much by the other, to charge each with the whole. For in ilich Cafe the Truftees are to blame for not keeping diftin6l Accounts. It Is See Preccd. like ohe's throwing Corn or Money into another's Heap, '" ^^^^- ^'' where there is no Reafon that he who made this Diffi- culty Ihould have the whole : On tjie contrary, be- cause it cannot be diftinguiflied, he fhall have no Part. In Murrell and 'Pittas Cafe it was a voluntary A61: Otherwife in them, being * Executors, to fell the Eajl-India Stock ; cutois join but here, what the Truftees did, was neceftary for the i''SaJcs,there Satisfaflion of the Mortgagee. ceffity L^ their fo do- ing. It feems to be [ubftantial Injuftice, to decree a Man to anfwer for Money which he did not receive, at the fame Time that the Charge upon him by his joining in the Receipts, is but notional. Wherefore let {a) each {a) Sec port Truftee be difcharged of the Truft^ by anfwering for ch,!^Mii^^ fo much oply as he has aflually received. veifus Hop- I Salk. 318. where the like Opinion is delivered by Lord Harcourt. * See the (lime Diftindtion talcen in the Cafe of Aplyn vcrfus Brewery Preced. in Chan. 173. Elliot verfus Davenport, ^f"'^- •* L:iri/ Keeper. Ql R William Elliot was indebted unto Anne Davenport zVem.sat. ^ in 400 /. by Recognizance, and afterwards Anne ^. jevifes to Davenport, by her Will, gave and bequeathed unto Sir.-^, .^oo''- William Elliot, his Executors, Adminiftrators and Afligns, owed him, the Sum of 400 /. which he owed her, together with dfttere- all Intereft due for the fame; provided, that he the faid out pay re- Sir William Elliot ftiould pay, out of the faid 400 /. the J'^jL^chil feveral Legacies therein after mentioned, to his Chil- dren ; tiie reft he freely gives him, and directs his Executors to deliver up the Security, and not to claim'any Part of the Debts, but to give fuch Releafe as B. his Executors, i^c. fliould require ; B. dies in the Life of A. decreed this was a bpfed Legacy. dren 84 De Term. S. Michaelis, 1709. dren, (amounting to about i 50 /.) and the Refidue of the faid 400 /. (Ke gave to the faid Sir William Elliot^ his Executors, Admin iftrators and Afligns; and by her faid Will defired and appointed her Executors not, by any Means, to claim or meddle with the faid 400 /. but that they fliould fre-ely deliver up the Security for the fame, into the Hands of the faid Sir William Elliot^ his Executors, Adminiftrators and Affigns, and feal and execute unto the faid Sir William Elliot^ isfc. all fuch reafonable Releafes and Difcharges, and acknowledge Satisfaftion for the faid 400/. for the Safety of Sir William Elliot, i^c as the faid Sir William Elliot, ^c. fliould think fit. Sir William Elliot died in the Life-time of the Tefta- trix ; after which, the Teftatrix died, and William Elliot the Heir of Sir William brought this Bill againft the Executor of Mrs. Davenport, in order to be difcharged of this Recognizance. Upon which the Qiieftion was, concerning fo much of the 400 /. as was to remain to Sir William, after Pay- ment of the Legacies to his Children, whether that was not a lapfed Legacy, by Reafon of the Death of Sir William before the Teftatrix ? ifl. It was agreed by the Court, and likewife by the Counfel on both Sides, that where one gives a Legacy to a Man, his Executors, Adminiftrators and Aftigns, if, in fuch Cafe, the Legatee dies in the Life of the Teftator, tho' the Executors are named, yet the Lega- cy is loft ; for the Words [Executors, Adminiftrators and Afligns,] are void, being but Surplufage, ^ ex- prcfjio conm, i5^c. and they are by Suppofttion of Law named only to take in Succeflion, and by Way of Re- prefentation, as an Heir reprefents the Anceftor, in cafe of an Inheritance j and to this Purpofe Brett and I Ridden !^ De Term. S. Michaelis, 1709. 8<^ Rigdens Cafe was cited, Plorvd. 340. Where Lands being devifed to a Man and his Heirs, and the Devifee dying in the Life of the Teltator, it was held, that the Devife was void, and the (a) Heir could not take j (a) To thi? confequenly if the Qiieftion here, had depended upon ^'"'■p°'""-' ^^.^ this Glaule only, the Legacy had been loft. cuiariy the Cafe of Goodright verfus JVri^ht pod. ^dly^ It was held, that a Will might be fo penned, as that, tho' the Legatee died in the Life of the Te- ftator, yet his Executors Ihould have the Legacy ; but then it ought to appear in the Will plainly, and by di- recl Words, that this was the Teftator's Intention ; and tho' a Will could not (as was allowed) enure as a {h) Releafe, even fuppoling it to be fealed and delivered, W i Vent, for Want of its taking Efted in the 1 eftator's Life- IJ^fjl time, yet, provided it were exprefied to be the Inten- ^'^,'^''' ^^''fus tion of the Party, that this Debt fliould be difcharged, //4^„-^'^ '^ the Will would operate accordingly. And therefore Lord Keeper faid, that if this Qiieftion had depended only upon the latter Claufe, (vi^.) that this Security ftioiild be delivered up to Sir William Elliot^ his Executors, Adminiftrators or AlTigns, in fuch Cafe, it would be plainly an abfolute Difcharge of the Debt, tho' the Teftatrix had furvived the Legatee. So that the Qiieftion was reduced to this ; Whether the latter Claute was to be taken as diftinft from, or independent of the former Claufe, in. which Cafe the Legacy would fublift ; or whether it ought to be looked upon as ancillary to, and dependent upon it, (fcil.) if the Legacy took Effeft, then and then only the Executor, in Confequence of it, was to releafe. And his Lordfiiip decreed, that this latter Claufe was dependent upon the former, and therefore, that Z the h6 De Term. S. Michaelis, 1709. the Legacy being a lapfed Legacy, upon the former Claute, the latter did not prevent it. That what made fuch Conftrii£l:ion appear the more reafonable was, that the hke Claufe, in much the lame Words, was added to the other Legacies given by the fame Will, which could not operate by Way of Releafe or Extin- guilhment ; and tho' it might be the Intent of the Te- ibtrix, that the Executors of the Legatee fliould have the Benefit of the Legacy, (as probably this is always the Intent where a Legacy is given to a Man, his Ex- ecutors, i^c.) yet the Law being otherwife, fuch Intent A Will that rnuft not prevail : For which Reafon, a Will that de- prevxnt the figus to prevent the lapfing of a Legacy, by the Death Lapfing of a q£ j.|^g Legatee in the Life of the Telktor, ou^ht to Legacy, by - » , ° the Death of be Ipecially penned. tlie Legatee in the Life of the Teftator, ought to be fpecially penned. l^ote'. The Mafter of the Rolls, who heard this Caufe tlie Day before, but adjourned it over for the Lord Keeper's Determination, (before whom it had been in Part firft heard,) was of another Opinion. Lord Keeper alfo faid it was a doubtful Cafe^. * An Appeal was brought from this Decree to the Houfe of Lords, but before Hcuring the Parties agreed. 1 D E 87 D E Term. Pafch^^ 1706. Legate verfus Seidell. cde 17. THIS Cafe was by the Lord Keeper fent to the 2 Vem. Judges of C. B, for their Opinion, and was as ^^'* follows: DevifetOy/. for Life, and after his Deceafe to the Heirs Male of the Body oi J. and the Heirs Male of the Body of every fuch Heir Male, feverally and fucceffively, as they fhall be in Priority of Birth, ^V. Remainder over ; Whether this be a Tenancy in Tail, or for Life only ? George Legate, feifed of Lands in Fee, had a Wife named Eli^al^cth ; he had no IlTue of his Body, but had a Nephew named William Legate, being his deceafed elder Brother's Son j he had likewife a Brother named Henry. In September 1685, this George Legate by his Will, after many Legacies therein given, devifed his Lands, in default of IfTue of his own Body, unto his faid Ne- phew yVilliam Legate, for and during the Term of his l.ife, and after his Deceafe to the Heirs Male of the Body of his faid Nephew lawfully to be begotten, and the Heirs Males of the Body of every fuch Heir Male feverally and fucceflively as they lliould be in Priority of 88 De Term. Pafch^, 1^06, of Birth, i^c. and for want of fuch IfTue, to his Bro- ther Henry Legate for his Life ; and after his Deceafe, to the Heirs Male of the Body of his Brother Henry lawfully begotten, is^c. ^i. Whether William Legate the Nephew had an Eftate-Tall veiled in him, or an Eftate for Life only in the Lands to him devifed ? William Peere Williams pro ^ler. WiUiamMelmoth pro Def. S^well (^ Ux\ May it pleafe your LordJJjip, The Certi- Li Purfuance of your Lordlhip's Order, the Parties fhreeofthe concemed have attended us with their Counfel ; and Judges of after hearing what was alledged by the Counfel on the Lord both Sides, and on Confideration of the Will of George Keeper on Legate, We are humbly of Opinion, that William Le- gate the Nephew, by Virtue of the faid Will of his Uncle, had an Eftate-Tail vefted in him. This is fub- mitted to your Lordfhip's great Wifdom. T. Trevor, Jo. Blencow, Rob. Dormer. The Certi- I aui humbly of Opinion, that William Legate had ^rtk? ^^"^ *^"^y ^" Eftate for Life by this Devife ; and that the Traiy. Words [Hcirs Male of his Body] as this Cafe is, are Words of Purchafe; for fo the Intent of the Devifor feems apparently to be, by limiting the Eftate expreily to William Legate for his Life, and by the Limitation over to the Heirs Male of the Body of every fuch Heir Male feverally and fucceffively, ^c. which Words muft be wholly rejefted as idle and void, if we make the for- mer Words [Heirs Male of the Body of the faid Wil- 1 liam De Term. Pafchcc, 1706. 8p Ham Legate] to be Words of Limitation. And this Conllruflion is (I think) warranted by the Cafe oi (a) (a) See this rA?/-A verfiis Dny, Cro. Eli^. 313. and hy Archer & ^^^^^^d^lt^d in 1 Co. 66. b. for the Realon oi Archer^ Caie was, at large not that the Devife was to the Heir Male of the ^"" ^' ^^' Tenant for Life, in the Singular Number, (for if it had gone no farther, it had been an Eltate-Tail executed, the Word [Heir] being Nomen CoUeSlmmy and the fame with the Word [Heirs,] and fo it was refolved in the Cafe of Pajvfey verfus Lorpdally i Roll. Abr. 616. and in the Cafe of Clark verlus Day cited before ;) but the Reafon why the Heir Male there took by Purchafe was, becaute the Eifate was limited over to the Heirs Male of the Body of fuch Heir Male ; and fo is the Opinion of the Court in the Cafe of Pawfey verfus Lowdall; and of the Lord C. J. Hale, in the Cafe of King V er(us Melling, i rent. 232. And If that be all the Reafon o^ Archer s Cafe, (and thofe are great Opinions I have cited for it) then there is a dire6l Authority for me in this Cafe. In the Cafe of L'l^e verfus Gray, 2 Jones i 1 4, 2 Lev. 223. Where the Limitations were to the fame EfFe6l as here, it was held not to be an Efbate-Tail executed in the Father, who had an Eflate for Life limited to him ', and the Court went upon the fame Reafons (among others) which I have relied upon in this Cafe ; and yet that was upon the Conftru61:ion of a Conveyance, where (generally) the Words Ihall be taken according to the legal Senfe, and their Operation in Law Ihall control the Litent and Meaning of the Party ; But we are in the Cafe of a Will, where the Intent of the Party iliall control the legal Senfe and Meaning of the Words. A a And po De Term. Pafch^, 1706. And it appears by the Record of that Cafe of Life and Grey, that the Judgment of the Court of B. R. was affirmed in the Exchequer-Chamber, though the Reports of the Cafe differ in that Matter. Rolf. Tracey. Memorandum. In this Cafe the Will oi George Legate was of Money directed thereby to be laid out by his Executor in a Purchafe of Lands, to be fettled in Manner and according to the Limitations fpecified in the Cafe above referred to the Judges; and therefore the Lord Keeper directed the Cafe to be made and laid before the Judges, fuppofing it to be Land ; for that Money ordered to be laid out in the Purchafe of Land, ihould be as Land in Equity. And it was infilled upon by Mr. Vernon, that where Money is ordered by a Will to be laid out in Land, and to be fettled on A. in Tail, Remainder over to B, there the Court has decreed the Money to be paid to A. becaufe it would be in vain to decree an Eftate-Tail in the Land, which he might cut off by a Common Recovery. Indeed, \i A. were an Infant, the Court (i) Poft probably would not decree {a) the Money to be paid to him ; becaufe during his Infancy no Recovery could be fuffered, and A. might die before he came of Age. And to this Purpofe was cited the Cafe of Sir Robert Carr, decreed by Lord Jeffreys. Sir Thomas Powis cont': Why fhould not the Remain- der-Man have the Benefit of the Chance of the Tenant in Tail's dying before a Common Recovery fuffered ? And for what Purpofe are Recoveries kept up, but as fo many Mediums betwixt a rafh and a deliberate A£1 ? Befides, the Tenant in Tail, though of Age, may yet die 2 in Short verfus mod. De Term. Pafch^, 1^06. 91 in a Vacation before a Term, and fo not have it in his Power to fufter a Recovery. Lord Keeper: If this were Res Integra^ where a Purchafe is direfted to be made, and the Land to be fettled on A. in Tail, ^c. it would be moil: reafonable for Equity to decree the Truft to be executed, and the Eftate-Tail to be fettled, with the Remainder over ; that fo fuch Remainder-Man might have the Benefit of the Chance of Tenant in Tail's dying before his ha- ving fufFered a Common Recovery. The leaft Right, and though of the leaft Value, yet if it be a Right, ought not to be taken from any Man ; but this Matter feems not now open j and I would not break in upon former (a) Refolutions. {a) But ti-.e Praaicc (eema to have been fince othci wife. I agree, the Cafe of {b) Champernotpne verfus North, {^ ^ Chnnc vi^. that a Common Recovery by Cefliiy que Trufl in i \^en)."i3. Tail ftiall bar the Remainder as much as a Recovery ^^°^ ^^ . by Tenant in I'ail of a legal Eftate ; but whether only cies, or a a Deed executed by Cefluy que Trufl in Tail Ihall bar ZZtZXy the Remainder-Man, or even the Ifliie, that is with Tenant in me a Doubt ; in regard a Deed may be made at a Ta- ^ji '"Jm vern, or by Surprize j but a Recovery is a folemn and ''"^'y f^*- a deliberate Aft. "^""" '" bar die Li- tail. It feems, in this Cafe there liad been a Decree long fince obtained by Willi ^im Legate the firft Devifee, againit the Executor ot the Teftator, by whicli it was dire£led, that the Executor, inliead of laying out the Money in a Purchafe, fhould pay it to William Legate the firH: De- vifee. But Henry Legate., the Devifee in Remainder, not being Party to this Decree, it was held to be void as to him, and in no fort binding. The pi De Term. Pafch^, 1706. The Court appearing afterwards not to be fatlsfied with the Certificate of the three Judges, directed that an Eje£lment Ibould be brought in B. R. in order to have the Matter fettled : But it is faid the Parties a- greedj and fo the Qiieftion was not determined. Cafe 18. Sir George Nevjland and Beckley, Exe- cutors of Watts verfus . See the Cafe of Orlehar verfus /^NE feifed of Lands in Fee owes a Debt by Sta- ^-^ tute, and afterwards becomes a Bankrupt, and FL-uher znd j-]jg Creditor by Statute extends the Lands, then a the Duke of . - , r V. i • r J 111 Kent pod. Cominilhon or Bankruptcy is lued out; and whether . ^ ,. the Lands lliould be liable to the Statute-Creditor ? was A Creditor , by Statute of the Queftion. 7. s. if 7. ^ S. become Bankrupt, and the Statute not fued and executed before the BankruptC}', Ihall come in only pro rata; tiiough there were Lands in Fee bound by the Statute. Upon Importunity of Counfel, Lord Chancellor referred this to the Judges of C.B. before whom it was infilled by Serjeant Pratt and myfelf, that the Lands were aflually bound by the Statute; and the Creditor relying on this Security, it would be hard that the doubtful Words of the Stat. 2 i Jac. i . cap. i 9. fe^. 9. fhould difcharge it. And with Regard to that Claufe of the A£1 which fays, " That Creditors by Judgment, " Statute, i^c. whereof no Execution or Extent is " ferved or executed on the Lands or Goods of the " Bankrupt before his becoming bankrupt, lliall not " be relieved for more than a ratable Part of their juft *' Debt, without Refpefl: had to the Penalty of the Sta- " tute or Judgment." We urged, this extended only to relieve againft the Penalty; and the Words, [Creditors feeking Relief ihall not be relieved,] ilfc. mull: be in- tended to mean, [fhould not be relieved upon the Com- z million De Term. Pafcha^, I70(J. 93 million of Bankruptcy in a Court of Equity] but if at Law they could prevail, (as here by an Extent upon the Land) the Statute did not hinder them. But all the Judges of C. B. contra ; who held, that the Claufe of the Statute was full and plain, that all the Creditors of the Bankrupt, unlefs where there was a Mortgage, fliould be equally paid. And, Trevor C. J. faid, A Judgment or Recognizance did no more bind the Lands, than the Tejie of a Fi. fa. bound the Goods at the Time of the making of this Statute ; and it was plain, if the Fi. fa. was not ferved and executed, fuch Creditor, notwithftanding his fuing out his Fi. fa. (hould come in only in Proportion with the Creditors even by fimple Contrail:. Bb D E 94 D E Term. S. Hillarii^ 1706. Cafe 19. Beck verfus Rebonv, Hangings, '' | '' H E PlalntlfF Bcck married the Daughter of Al- Giaffe,^^or i. derman Chamberlain, and in Conlideration of Pier-Giaf- fhis Marriage, and of a Settlement made by the Plain- Matins of tiff Beck on his Wife, and the IlTue of the Marriage, Ornament Alderman Chamberlain covenants to fettle his Houfe in ture, and Leaden-haU-Street on the Plaintiff Beck2inA his Wife, and wkh th? ^^^ l^\XQ of the Marriage ; and likewife covenants to Houfe. grant to the Plaintiff all the Pi£lures upon the Stair- Cafe, over the Doors and Chimney-Pieces, and all Things fixed to the Freehold of the Meifuage. Alderman Chamberlain died, having made the Defen- dant his Executor, to whom he devifed this Houfe in Truft, to fettle it according to the Marriage Articles; but the Defendant the Devifee in Truft of the Houfe, had, after the Death of the Teftator, taken away the Piftures upon the Stair-Cafe, and over the Doors and Chimneys, and likewife the Pier-Glaffes, Hangings, and Chimney-Glaffes, which the Plaintiff alledged were as Wainfcot, and fixed to the Freehold of the Houfe ; 4 and Dc Term. S. Hill 1706 ^^ and the Bill {inter at) was, that the Defendant fliould make a fpcclfick Performance of the Articles, and ac- count for the Value of the Pier-Glaffes, Piftures Chimney^GlafTes and Hangings, which the Defendant had taken away. It was urged for the Plaintiff, that thefe Hangings, Pier-GlafTes, Chimney-GlalTes and Pi6lures were as Wajntcot, being fixed with Nails and Screws to the F'-eehoId; and that there was noWainfcot under them ; and as they would have gone to the Heir, and not to the Executor : So a fortiori, would they in this Cafe go to the Plaintiff, who was as a Purchafer of theHoufe in Con* fideration of Marriage, and a Settlement ; and efpeci- ally, the Covenant being to grant to the Plaintiff all Things fixed to the Freehold : And the Cafe of Cave verfus Cave (a) was cited as in Point. (">' ^ Vern. ^ ^ 508. But Lord Keeper, As to all but the Pi£lures over the Doors, Chimney-Pieces, and on the Stair-Cafe, was of a different Opinion ; faying, that Hangings and Looking-Glaffes were only Matter of Ornament and Furniture, and not to be taken as Part of the Koufe or Freehold, but removable by the I^effee of the Houle. DE 96 D E Term. S. Trinitatis, 1707. hard Blndon verfus Earl of Suffolk. Cafe 20. Lord Chan- cellor Cow- per. Debfj'"' T^ ^ ^ ^^^^ ^^^^ °^ '^"^?'^^^ ^''^ ^>' ^^^^ "^^^^^ g^^^ ^"^ two. Share JL bcqueath the Sum of 20,000/. (due to him aHke^'^e'^uai ^^^"^ ^^^ Ctown) to hls fivc Grandchildren, Share and lyto'bedi- share alike, equally to be divided between them, and tweet "them ^^ ^"7 ^^ ^^"^ died, then his Share to go to the Sur- and if any vivors and Survlvor of them. of them die, then to the Survivor ; they are Tenants in Common, and not Jointenants. ^. Upon this the only Qiieftion was, whether the five Grandchildren were Tenants in Common, or Jointe- nants ? And on Debate, Lord Chancellor held and decreed, that the Grandchildren were Tenants in Common, and not Jointenants ; fo that if one died, his Share Ihould go to his Executors, and not to the Survivors. The Reafons on which he grounded his Opinion were, that by the firft Words [Share and Share alike] it was very plain the Legatees were Tenants in Common j and by the fubfequent Words [that if any of them died, his 4 Share De Term. S, Trin. 1707. 97 Share fliould go to the Survivor] it muft be intended, if any ot them fhoiild die in the Life-time of the Te- Jiator J for by that Conftrufiion, every Word of the Wiil would have its Effeft and Operation : For were it not for this Claufe, if any of the Grandchildren had died in the Life of the Teliitor, that Grandchild's fifth Part would have been a (a) lapfed Legacy, and have (^) Sce pofl gone to the Executor, as undifpofed of by the Will ; Biackwdi but by this Devife over, if it Ihould fo happen that ^" "^' any of the Grandchildren fhould die in the Life-time of the Teitator, fuch Share would go to the Survivors. And though it was objefted, that the Will of the Tellator could not fpeak, nor take any Eflfe6l, until the Tellator was dead ; yet the Lord Chancellor ob- ferved, that the Will was inchoate, though not confum- mate, from the Execution of it ; and that to many Purpofes in Law, it did relate to the {b) I'ime of the {h) Saik. makine;; and the Words Fif any of my Grandchildren I?'- "^'^ 1- T il 1 1 • ] i: • 1 r • • n G^r^verfui. diej mult not be taken mdehnitely, tor it is molt cer- Gme. tain that they and all others mult die: And to under- ftand it in the Senfe that had been contended for by fome, (x-v^J If any of my Grandchildren Ihould die before the Receipt of the Money, that was intirely de hors, there being nothing in the Will tending to jufti- fy fuch Conftrudfion. So that it muft be underftood, if any of the Grand- children fhould die in the Life of the faid Tcftator, from which Conftru£lion every Word of the Will would take Efteft. This Decree was reverfed on Appeal to the Lords. Though ^t^rc, whether in the Cafe of Stringer and Philips, which was (c) decreed at the Rolls in Mick (0 Abr. of 1730, Lord Corppers Opinion, be not adhered to? quity 292,3, Cc D E 98 D E Term. S. Michaelis^ 1707. Cafe 21. Higgifis vertus Doivkr. Oh Demurrer. s»ik. 156. A j^ii-g Uiggins demifed the Premiflfes (being a Term A 600. ' jTv for 999 Years) to Truftees, in Trull for her Limitation f^^f during her own Life, and after her Death, for of a Truft Henvy Higgins her Son ; after his Death, for Mary Doxv" to a Man ^^f" his intended Wife, and after their feveral Deceafes, for Life for the eldeft Son of the faid Henry Higgins begotten on to his firft, the Body of the faid Mary Dowler, in Tail ; and for TaiifTnd" I^efault of IlTue of fuch firft begotten Son, for all and for want of every the other Son and Sons of the faid Henry Higgins, Jhen%S begotten on the Body of tht {M Mary Dowler ', and his Daugh- for Default of Iflue Male of the faid Henry Higgins be- nJve/ha? gottcn on the Body of the faid Mary Doi^ler, then in ving been z Truft for all and every the Daughters. Son; ad- . judged the Truft to the Daughter good. There never was a Son of the faid Marriage, but there was a Daughter; and the Husband and Wife be- ing both dead, it was objected by Sir Thomas Porvis, that the Limitation of the Truft to the Daughter was 4 void. De Term. S. Michaelis, 1 707. 99 void, it being after Limitations in Tail to the Sons, which in Cafe of a Term was not to be allowed. Sed per Lord Chancellor with great Clearnefs : There is a Diverfity where the Limitation in Tail ever veiled ; for there it muft be admitted the Remainder over would be void ; but as in this Cafe there never was a Son, the Remainder of the Truft of the Term to the Daughter is good ; and it is no more than a Li- mitation of a Truft of a Term two Ways, {Jcii) if there be a Son by the Marriage, then the Limitation is to that Son, but if there be no Son by the Marriage, but a Daughter, then to that Daughter j and this is not too remote a Contingency, becaufe confined to a Life in Being. However, as I am not for determining this Point without further Conlideration, over-rule the Demur- rer. But afterwards on the (a) Hearing, his Lordfliip dif- {a) 30 May miffed the Bill. ^^°s. On the Authority of this Cafe that of Stanley verfus Leigh was adjudged by his Honour the Mailer of the Rolls, which fee pofl. Gaivkr verfus Wade. cdai, o NE binds himfelf and his Heirs in a Bond, and One devifes his Lands to J. S. the Bill was brought fcifed of Lands in rii'iir r " ^'^'^ binds upon the Statute or the third and fourth of William ^ himfdf and Mary, cap. 1 4. to affe6l the real Affets in the Hands |^'Bond,''and of the Devifee. devifes his J^ands to y. S. in Fee, and dies ; in a Bill brought by the Obligee in the Bond, to fubjcd the Devifee to the Payment of Debts, the Devifor's Heir muft be made a Party. And lOO De Term. S. Michaelis, 1707. And objefted, that the Heir of the Devifor ought to be made a Party to the Suit, the Statute faying, that an Aflioii of Debt fliall be brought agalnft the Heirs at Law, and fuch Devifees jointly. It was anfwered by the other Side, that the Will ha- ving given all from the Heir, and thereby broken the Difcent, it would be a vain Thing to make the Heir a Party, in regard it Would only oblige the Plaintiff to pay him Cofts ; that it was true, had fome Part of the real AlTets defcended to the Heir, then the Heir was to be made a Party, for then there was to be an Ave- rage ; but when nothing defcended to the Heir, there could be no Reafon, in fuch Cafe, for bringing him before the Court. And tho' in an Aftion at Law, it was neceffary to make the Heir a Defendant, that was, becaufe the Debt was in the Debet iff detinet, and the Heir privy to the Anceftor, and the Devifee not ; and fo, for Con- formity Sake, the Statute, in an A£lion at Law, di- re£led that the Heir fhould be a Co-Defendant ; yet it was otherwife in a Suit in Equity, Lord Chancellor Corvper: It is the Afl of Parlia- ment makes this Affets in the Devifees Hands ; and tbdt requiring the Heir to be made a Defendant, you muft follow the Remedy therein prefcribed ; and this Bill in Equity, is as an A£lion at Law ; otherwife if there were no Heir ; and perhaps it might be otherwife too, if the Bill had charged that the Plaintiff had made In- quiry, and could find or difcover no Heir. Young De Term. S. Michaclis, 1707, 101 fouit^ verfus Cottle Sf e cont, c^'^ 23. ' I 'he Arch-bifhop of Canterbury in 1673. granted ^^pp°'"^- -■- the Regifter's Office of the Prerogative-Court to Deid o/fuch Mark Cottle, Extoriy and Sheldon, for their Lives : Sheldon ^"'^ ^""."^ , , •, , . ~ Annuities to dies, Exton declares by Deed, that his Name was ufed be paid out in Truft for Mark Cottle, and covenants to depute Mark cLme?-^'^' Cottle, his Executors or Adminiftrators, or fuch as he mandabie. fhould appoint, and in the mean Time to receive the Profits to fuch Ufes, and under fuch Trufts, as Mark Cottle fliould dire£i. Mark Cottle by Deed (executed fo long fince as in 1679. and all of his own Hand-writing,) appoints, that after his Death, one Richard Hoar, who was then in his Office, Ihould be the Deputy Regifter ; and in cafe of his Death, or Removal, fuch other Perfon as his Executors fliould appoint ; and direfts feveral An- nuities to be paid out of the Office, and that one Moiety of the Surplus fhould be paid to his Wife for her Life, and after her Death, to the Defendant's Fa- ther Mark Cottle the younger, (being Nephew of old Mark Cottle) and the Defendant ; and the other Moie- ty to belong to the faid Mark Cottle the Nephew, and the Defendant his Son. Under this Deed (old Mai'k Cottle s \Vife being dead, and Mark Cottle the Nephew being alfo dead,) the De- fendant furviving his Father, became 'well inticled to the whole Profits of the Office. But old Mark Cattle did, by another fubfequent Deed in 1 68 I. make different Appointments of the Profits of the Office, under which the Defendant was intitled D d to I02 De Term. S. Michae/is, 1707. to the Profits of a Moiety of the Office only, and Hoar (who was to be Deputy of the Office after old Mark's Death,) died; upon which old Mark, by the latter Deed, appointed another Deputy, and foon after old Mark Cottle died, leaving his Widow Executrix, who, claiming a greater Intereft in the Office under the lat- ter, than under the former Deed, concealed the former ; and a good Account was given in Proof, why the De- fendant did not claim under the firfl: Deed for fo many Years, but accepted his Share under the fecond Deed. And now the only Qiieftion was, which of thefe two Deeds jQiould prevail ? It was objefted, that the firft Deed, being an abfo- lute Difpofition of the Profits of the Office, without any Power of Revocation, ought to ftand ; and tho' this firll: Deed was all along in the Cuftody or Power of old Mark Cottle, yet fo, (generally) were all volun- tary Settlements, notwithftanding which, in cafe of (a) Vide 2 (^a) two different voluntary Settlements of the fame E- davertg^' ft^tc, the firft ffiould prevail ; and the Cafe of the verfus c/a- Duchcfs of Albemark (b) and the Earl of Bath was cited, cord"f fed where there was a voluntary Settlement, and a Power port AWr/nv/ of Revocation in the Prefence of fix Witneffes, where- hamcomn. of three were to be Peers, and there was a Writing (b) Cafes in importins a Revocation, but not being attefted accord- Chan. Part , ^ o . ' o > p- 55- Jr^g to the Power, it was not iuliicient. On the other Side It was anfwered, that this Ap- pointment of i<^79. in the firft Deed was in the Na- ture of a Will, and confequently revocable by any latter Deed. Lord Chancellor : The firft Deed is only an Authority, and therefore clearly countermandable by the fecond ; I and De Term. S. Micbae/is, .1707. 103 and it is no more, than if one Ihould appoint his Baihff of his Manor of Dale, to pay one Moiety of the Profits to A. and the other Moiety to B. this is countermandable at Pleafure; and by the fame Reafon that old Mark Cottle could appoint another Deputy, after his Death, to manage the Office, (Hoar the firft appointed De- puty being dead,) fo could he aUo make another Dif- pofition of the Office. Whereupon the Court decreed againft the firft Deed in Favour of the fecond, and that the firft ftiould be dehvered up. D E I04 D E Term. S. Hillarii^ 1708. Cafe 24. Collins verfus Plummer, iVern. 635. /'^N E ill Confidcration of Marriage fettles Lands Upon a Set- y^J upoH himfelf for Life, Remainder to his in- ma'de're- " tended Wife for Life ; Remainder to the Heirs of nantforLife, j^jg g^j ^^ j^jg "^ifg j-q be begotten : Remainder to Remainder J . . ^^ . *^ to the Heirs his own right Hcirs. of his Body by his Wife Jane, and in the fame Deed A. covenants not to fufter a Recovery, but that thfe Lands (hall be enjoyed according to thefe Limitations ; A. does fuffer a Recovery and de- vifes the Lands ; the Covenant good to bind the Aflets ; but A. being Tenant in Tail, and as fuch having Power to fuffer a Recovery, the Lands devifed fliall not be affe) contrary to their '^] J'^JfJ^"*^ Truft, join in the Deftrudlion of the Settlement. ciapham, & Elfe verfus r -r ' Osborne. But where there is Tenant for Life, Remainder to the firft Son, ^c. and no Truftees to preferve contin- gent Remainders, in fuch Cafe, If Tenant for Life, by Fine or Feoffment, deftroys the Remainders, there be- ing no Truftee, there can be confequently no Breach of Truft ; and this being the Law, Chancery will not interpofe : But then, as this was a Hardftiip at Law, to prevent which, the Method of appointing Truftees was Invented, fo it Is reafonable that the Truftees, when they let in this Hardftilp by violating the Truft repofed in them, ftiould themfelves be liable for the fame ; but if the Conveyance be voluntary, or If there be Notice of the Truft, fuch Truft ftiall follow the Land. L \ Ben/on 130 De Term. S. Mich a e lis, 17 10. Cafe 34. Benfon verfus Benfon. Sir John Trevor Ma- ^ , _ t r i i i r jierofthe i \VO tbouland PoLinds (vvhereor 1500/. were the Rclh. Where Mo- I WO tboufand Pounds (vv -*- Wife's Portion, and 500/, the Huiband's MoneyJ neyTs'Igreed werc agreed, by Articles before Marriage, to be Invefted by Ai tides jj_j ^ Purchafe of Lands, to be fettled upon Hufband to be laid out t r ^ • -n 'i i • r in Land, the and Wife for their l,ives, Remainder to the Heirs or Party who ^j g J ,^ ^j^^ ^^-f^ . ^j^^ Rufband, Remainder to would nave J J ' the foic In- the Heirs of the Huftand. tciell: in the Land v.'hen bought, may eleft to have the Money paid to him, and that it ftiall not be laid out in Land. The Hufband receives the whole 2000/. the Wife dies leaving a Son and three Daughters ; after which the Husband dying Inteftate, the eldeft Daughter takes out Adininiftration to the Father. The Son brings a Bill againft his Sifter (the Adml- niftratrix) to have the Money paid to him, ele6ling that it ihould not be laid out in Land, and fettled as had been agreed by the Articles. Uow coni: This may be a Prejudice to the Sifters, who^ if the Lands were to be fettled, and afterwards the Son ftiould dye without Ifliie, and without levying a Fine, would be intitled to them under the Contin- gency ; and there can be no Reafon to deprive the Si- fters of any Contingency ; and this Bill, tho' faid to be brought to execute a Truft, does, at the fame Time, feak to break it. Cur: A Fine cannot be levied of Money agreed to be laid out in a Purchafe of Land to be fettled in Tail ; but a Decree can bind fuch Money equally as a Fine alone could have bound the Land in this Cafe, if bought and fettled ; and in regard the Plaintiff the Son I would De Term. S. Michaelis, 1 710. 131 — — ■ ' '■' '— — — ■ ■■ — ' — I - would have the intlre Intereft in the Lands when pur- chafed and fettled, and the abfolute Power over them, and that a Court of Equity will not decree a (a) vain ('') P°^ '^'''- rwy%' ^ Ity verfus Ining: jago,ushort verfus IVocd. Vi^. Decree a Purchafe and Settlement to be made, which the Son, the next Moment, by a Fine only, may cut off; therefore fince the Son ele£ls to have the 2000 /. let him take it, and let the Adminlftratrix be indemnified. Then it was obje£led by Mr. How, that this was not What Debt as a Debt by Specialty from the Inteftate, but only by anJ^hat^I fimple Contrafl:, there being no exprefs Contraft from fi"ipieCon. the Inteftate by the Articles to pay it ; fo that it was at moft but a Breach of Truft, as Money received and mifapplied. Sed per Cur: It is a Debt by Specialty, and to be paid In that De- ^ide poft gree ; for it is agreed by the Articles (to which the Huf- z)J^" "^ band was a Party) that it Ihall be, within luch a Time, laid out in Land ; and the Husband having received it, and not having laid it out, has broken that Agree- ment ; and an Agreement under Hand and Seal, by Deed, is a Covenant, and confequently a Specialty. D E 1^2. D E Term. S. Hillarii, 17 lo. Cafe 35. Webb & af verfus JVebb. Lord Keeper Harcourt. 2Vern.668. Y7 Divafd Webb the Defendant's Grandfather and his M °" "^'^ r 1— > Truftees, in Coniideration of a Marriage between fignsaTerm Tww^j' his Son and Anne his then Wire, and 350/. Years°^n Po^tion, did aflign divers Lands in Horjley in Gloceflev Triift for /Z>/>-^ to Truftees for the Remainder of a Term of Life,^Re-'''^ 1000 Years, upon Truft to permit the Son to enjoy mainder to fhc fame fo long as he fliould Hve ; and after Life, Re- ^^ his Deceafe, then to Anne his Wife as long as fhe mainder to n^Q^y \wt'j and after their Deceafe, to permit the the Bodies of Heirs of the Bodies of the faid Thomas the Son and Ind We'"^ J««^ his wife to be begotten, to hold the Premiffes Remainder during the Remainder of the Term ; and for Want of band'lSt ^^^^ ■^^"^' ^^ ^^ enjoyed by the right Heirs of the faid Heirs; the Thomas the Son. Wife dies leaving IfTue ; the whole Term vefts in the Husband, and he may aflign it. Thomas and Anne had feren or eight Children ; and he, having furvived his Wife, and fettled about two Thirds of his Eltate on the Defendant his eldeft Son, (to the Value of about 1 1 00 /.) and being indebted a- bout 300/. made a Mortgage of the Premifles for fe- I curing De Term. S. Hill. 1710. 135 curing of that Money ; and In order thereunto, took out Admlniftration to the laft furviving Truftee ; and afterwards affigned this Term to the Plaintiffs upon Truft that they fliould fell the fame, and in the lirft place pay off the Mortgage; and then pay the Re- mainder to his Executors, to be difpofed of by them for his younger Children, as he llioidd appoint by his Will. After this he made his Will, and the Plaintiffs Baker and Seager, i^c. Executors, and ihortly after died. The Plaintiffs the Trultees and Executors, bein*j di- fturbed by the Defendant, brought their Bill for the Execution of the laid Truft and Will. e The Defendant by his Anfwer fet forth the firft Deed of Truft, and infifted, that he, as eldeft Son and Heir of his faid Father and Mother, was intitled to the Premiffes by Virtue of that Settlement, and that he ought to have the fame, notwithftanding his Father's Mortgage, Allignment, and Will. The Caufe was heard before the Mafter of the Rolls, who difmiffed the Plaintiffs Bill. But upon Petition to the Lord Keeper, it was re- heard by him, who took Time to conhder of it ; and this Day being appointed for Judgment, Mr. Vernon (who was abfent at the Rehearing by Reafon of Sick- nefs,) was heard for the Defendant : And infifted ftrongly, that this Cafe was exa£lly the fame as that of {a) Peacock and Spooner, where (a) 2 Vern. a Term for Years was afligned in Truft for one for '^^' Life, Remainder to the Heirs of his Body; -which Caufe was heard before Lord Chancellor Jeffereys in M m 1688. 154 De Term. S. HilL 1710. 1688. who was of Opinion, that the Tenant for Life had the whole Term, and decreed accordingly; but afterwards coming on to be reheard before the Lords (a) 2Vern. Commiilioners, {a) they took it, that the Words ^^^' [Heirs of the Body] were a Defcription of the Per- Ibn who was intended to take, and reverfed Lord Jef- fereys Decree ; and upon an Appeal to the Houfe of Lords, the Commiilioners Decree was affirmed. (b) aVern. Alfo in the Cafe of Ward verfus Bradley, (b) the ^^" Trufts of a Term were limited to Cole for ninety-nine Years, if he fhould fo long live, Remainder to the Heirs of his Body begotten on his Wife ; Cole difpofed of the whole Term, and died leaving Children, who brought their Bill, and had a Decree in their Favour. Sir Jofeph Jekyll for the Plaintiffs : The Rule in E- quity is the fame, as to the Truft of a Term, as it is at Law in Cafes of a Freehold ; fo that wherever, up- on a Limitation of a Freehold, a Man by a Fine or Recovery can bar his Iffue, if there is the fame Limi- tation of the Truft of a Term, in that Cafe alfo the Party may difpofe of the whole Term. There is a ^reat Difference between our Cafe and that of Peacock verfus Spooner', in that Cafe the Limi- tation was for fo many Years as the Man fhould live, and then to his Wife in the fame Manner, then to the Heirs of the Body of the Wife begotten by the Hufband ; now this was the Eftate of the Husband, and was a Settle- ment made by him, and therefore it was confidered as (0 Vide poft In the Cafe of a Freehold {c) upon the Statute of H. 7. Us Rod"' (^- 2 0- for preventing Womens aliening the Eftates of their Husbands after iheir Deaths: For there the Wife, with a fecond Husband, was endeavouring to defeat the Children of the firft Husband; and this was a 2 great De Term. S. Hill. 1710. 159 great Ingredient in the Cafe to Induce the Lords to go fo far. Lord Keeper : I never heard it faid, before the Cafe of Peacock verfus Spooner, that the Limitations of a Term in Equity differed from the Cafe of a Freehold at Common Law. That Cafe Is the only one which In any Manner re- fembles this ; but as it feems far from being exactly parallel, I do not think my felf tied up by it. Now that Cafe differs from this In feveral material Circumftances : ly?, The Limitation there, was to the Heirs of the Body of the Wife ; here to the Heirs of the Bodies of the Husband and Wife. 2^/v, There the Party had not the legal Eftate, but the fecond Husband took out Adminlilratlon to the jfirl-t, and imagining that he had a Right to the whole Term, brought his Bill againft the Truftees to compel them to affign. In the Cafe before me, the Party aliening has the legal Eftate. T^dly, In that Cafe there was no Difpoiition ; Here is a Mortgage and Difpofition for younger Children, which, were the Plaintiffs not to prevail, mull be defeated J And therefore, there being thefe material Variations between the one Cafe and the other, I think I am at Liberty to determine this, as if the Cafe of Peacock ver- fus Spooncr was out of the Way. I am fure, I have often heard 1^6 tie Term. S. Hill 1 7 1 o. heard it faid by this Court, that the Cafe of Lady Radnor verfus Fandehndy, was of a Purchafer ; (a) Ante (a) and that in any Cafe which varied from it, as "^' where there was no Purchafer, they would vary too. The Decree at the Rolls muft be reverfed ; and the Truftees be let into a Redemption of the Mortgage, and be decreed to perform the Trufts. It feems in this Cafe there were 4c /. given the De- fendant by his Father's Will, on Condition that he did not difturb the Truftees, a.id they coming now to have an Execution of the Truft, and that he might either join with them in a Sale, or lofe his Legacy : Snto" ^^^ ^^^'- ^^ ^^ ^^^^ 3°^" ^^^^ ^^^"^' ^^" ^^^^ ^^^^ upon Condi- the 40 /. Legacy ; if not, then he fhall forfeit it. tion that he does not difturb his Truftee; on the Truftee's applying for an Execution of the Truft, Son decreed either to join in a Sale of the Premifles, or clfe to forfeit his 40 /. Legacy. I DE De Term. S. Hill. 17 lo. 157 Lady Williams, ReliB of Sir William ^^^^ 36. Williams, verfus Sir Boiirchier Wray. Hal^r/! On a Bill of Review. 'er T^HE Plaintiff brought a Writ of Dower, and re- ^SJ/L' -■- covered Judgment by Default ; the Defendant there was a Sir B. Wray preferred his Bill to be relieved againft the fublftingr'" Judgment in Dower, on this Equity, (vi^.) that as to Part of the Lands, (the five Pariflies in the Plead- ings mentioned,) tho' the PlaintiiT the Lady Williams had recovered Judgment in Dower, yet there was a fubfifting Term for ninety-nine Years in thefe Lands, prior to her Marriage; and that the legal Eftate of this Term was in one Mr. Bulkley, as a collateral Se- curity for his quiet Enjoyment of certain Lands called Lecquidijfa; that fubjeft to this collateral Security, the Term was declared in Truft to attend the Reverfion and Inheritance which was in Sir William Williams the Plaintiff's late Husband; and that Sir William Williams being thus feifed, and having intermarried with the Plaintiff, did, by his Will, devife thefe Lands to Sir B. Wray for Life, Remainder to his firft and every other Son in Tail Male, with Remainder to his Bro- ther Mr. Cbichejler Wray in like Manner, with Re- mainder in Fee-fimple to the late King William^ and that the faid Mr. Bulkely, having been interrupted in . the Enjoyment of the Lecquidijfa Eftate, was decreed to have Satisfaction out of the ninety-nine Years Term of the Land in the five Parilhes. 28 June 1700. ^ This Caufe was heard before the * P^J^^j'*^"'* Lord Keeper Wright, who declared, that the now Pjaintiff 151. *" ' the Lady Williams was not dowable of thefe Lands in the five Parilhes, there being a Trufl-Term fubfirting in N n them 138 De Term. S. Hill. 1710. them, prior to her Marriage ; and that Equity would not aid a Dowrefs ; for that no Dower ought to be of a Truft, and if not of a Truft in Fee-fimple, by the fame Reafon, the Plaintiff was not to be aided againft a Truft-Term : Wherefore he decreed M. Bulkley to produce the Deed at a Trial at Law, to enable Sir B, Wray to recover the PolfeiTion of thele Lands in the five Parifhes, and that the now Plaintiff the Lady Williams iTiould account for the Profits thereof. 21 March 1701. upon the Re-hearing of this Caufe before the Lord Keeper Wright, and upon Deliberation and Time taken to coniider of it, and on Perufal of the Bill, which was left with his Lordfhip, he affirmed his former Decree. At the Re-hearing, the now Plaintiff the Lady Wit- liams's Counfel cited (inter af) the Cafes of Porter verfus (^j 2 Vern. Hammond, Snell (a) verfus Clay, Pemberton verfus Jarvell; '^^^' and infifted, that Sir Bourchier who was but a Volunteer, Ihould not, in Equity, be Relieved againft a Dowrefs ; and that this Cafe was different from that of Lady Rad' (a) Pail. Ca. nor and Vandebendy, (a) affirmed in the Houfe of Peers, ^^' in regard Vandebendy was a Purchafer; alfo that here, if the Judgment in Dower was irregular, Sir B. ought to proceed and reverfe it at Law. To which it was anfwered, that if Lady Williams had been Plaintiff in the original Bill in Equity, Ihe could not have been relieved; forafmuch as the ninety-nine Years Term muft have fubfifted, as well for the Benefit of the Devifee, as of the Heir at Law. That this was the fame, in Reafon, with the Lady Radnor s> Cafe, and that the Term of ninety-nine Years was prior to the Marriage, and fo the Husband only feifed of the Reverfion in Fee during the Coverture; that as to Vandebendy s being a Purchater, he was fo with full Notice of Dower, and got in the Term to proteil him againft the Dowrefs; I and De Term. S. Hill. 17 lo. 1^9 and therefore, having Notice, was to be coniider'd only as a Volunteer ; that in Dower, where the Hui- band was feifed of the Reverfion in Fee expectant upon a Term for Years, the Plaintiff might indeed {a) re- [a] The cover Tudgment, but the Writ of Seifin was not to be P''^'""^, ■'''- JO' covers, but awarded until the Term ended. thereisa6vy: fet exrcntio during the Terrti. Salk. 291. & vide ante 121. That Sir Bourchier was proper in Equity; for with- out the AiUftance of this Court he could not go to Law, not having the Deed, which was in the PofTef- fion of his Truftee Mr. Bulkley ; and that if Mr. Bulk- tey had brought an Eje£lment, he muft have recovered again ft the Plaintiff the Lady Williams ; and if he muft have recovered, who was Sir Bourchier s Truftee, it was furely no lefs reafonable, that Sir Bourchier the Cefliiique Trufl Ihould recover. After this Re-^hearing, Proceedings from Tfme to Time were had before the Mafl^r, who, at Length, fettled an Account of the Profits taken by Lady Wil' Hams at 1438/. and that Report, after Exceptions ta- ken to it, was confirmed. But now Lady Williams brought her (b) Bill of Re- C^) it appears view; and on folemn Argument before Lord Keeper firit.i ^e- Harcoun, he reverfed Lord Wright's Decree ; and or- '""'^'■"P"^ dered that the Plaintiff^ Lady Williams having recovered of Review, Dower at Law, this Truft-Term that Sir B. Wray had ^^'''^ Y?^ ' -^ over-ruled fet up, lliould not ftand in her Way in Equity. the Defen.! dantfubmit- ted, and a Decree was made by Confent, fixing a Sum for the Arrears of Dower, and deli- vering up the PoflefTion to the Plaintiff. Vide port the Argument of the Maficr of the Rolls (Sir Jofeph Jekyll) in the Cafe of Banks verfus Sutton. D E I40 D E Term. Pafchse^ 171 1. Cafe ZT. Brov)n verfus Litton, Lord Keeper Harcourt. Captain of a T^E PkintiflF's Tcftator was Captain of a Ship, Shipdiesiea- J|[ and being in his Voyage beyond Sea, had 800 oITIoaX^ Dollars on board the Ship, which he intended to inveft the Mate be- Jq Trade ; the Captain died, and the Defendant (who tSn?nd tm- was Mate of the Ship) becoming Captain, took thefe proves the g^Q Dollars, and invefting them in Trade made fhaii, on Ai- great Improvements thereof 5 but on his Return to Eng" ^°7"^" land, made him ' for his Care in the Management of fuch Money, account for the Profits, and not the In- tereft only. The Executrix of the firft Captain brings a Bill a- gainft him for an Account. The Defendant admitted the Receipt of the Money, and offered to repay the fame with Intereft j whereas the Plaintiff infifted on the Profits produced in Trade, and the feveral Inveflments that had been made there- with. ObjeB. The Defendant having traded with this Mo- ney, it was at his Risk and Peril ; and as, had it been I loll De Term. Pafchie, 171 1. 141 h loft in Trade, the Defendant muft have born that Lofs; fo it is reafonable, on the other Hand, that the Profit which has been made of it Ihould belong to him ; as where an Executor puts out Money without the De- cree of the Court, if this be loft, it is at his Peril, and therefore he ought to have the Intereft. But Lord Keeper faid, that the Cafe of an Execu- J!^'^^'"^^" , . ^ . 1 ^ ' r Executor tor s puttmg out Money without the Indemnity of a putsoutMo- Decree, if it were on a real Security, and one that Ii!i'[hJu°t'hi' there was no Ground at that Time to fufpe£l, had not indemnity been ■ fettled ; tho' it was his Opinion, that the Execu- upon aTed' tor, under fuch Circumftances, was not liable to an- Security, fwer for the Lofs, and fo fhould account for the In- wzs no Rch- tereft. Ton tlK-n to lulpect, but afterwards fuch Security proves bad, he is not accountable for the Lofs, any more than he Would have been intitled to the Profits, had it continued good. But that he took the Defendant, in this Cafe, to be more like a Truftee than an Executor, and if fo, he ought clearly to account for the Profits made of the Money ; that the primary Intent in carrying abroad this Money was, to inveft it in Trade, and not to re- turn with- it home again ; and therefore, the Defen- dant having obferved the Intent of the Teftator in tra- ding therewith, and having taken fuch a prudent Care in the Management of it, as (it might be prefumed) he would have taken of his own Money, his Lordihip apprehended the Defendant would not have been liable to anfwer for any Lofs that might have happened ; and compared it to the Cafe of two joint Traders, where, if one dies, and the Survivor carries on the Trade after the Death of the Partner, the Survivor fhall anfwer for the Gain made by this Trade. The Court obferved, that this being an Ifland, all imagi- nable Incouragement ought to be given to Trade, and fuch Conftruftion was for the Benefit of him wbo car- ried out this Money with that Intent ; and there was no Reafon that his Death Ihould fo far injure his Fa- O o mily I42. De Term. Pafch^, 171 1. mlly and Relations, as to deprive them of the Benefit which might accrue from it in the way of Trade. But that, to recompence the Defendant for his Care in tra- ding with it, the Matter Ihould fettle a proper Salary for the Pains and Trouble he had been at in the Ma- nagement thereof; and in the mean. Time Cofts to be reierved. 'if.Z.r Bale verfus Coleman. Harcourt. zVern.ejo. /'^NE devlfcd Lands to four Perfons and their Heirs One devifes ^"-^ for Payment of Debts, and afterwards to the hisLandstor ^^^ |r (^^^-^ ^^.j tj-iejj. Hcirs ; after which, by a Co- lavmeiu or . . J hisDebts, dicil he devifed, that his Will ftiould ftand, faring, !?'for Lifl! ^^'^^^ when his Debts were paid, A. who was one of the with Power four Devitees in the Will, Ihould have his Share of the Lea'fTs,!".. L-ands to himfelf for Life,, with a Power to make Remainder Leafcs for niuety-uinc Years, determinable on three Male of the Lives, Remainder to the Heirs Male of his Body, Re- Body of //. J-J-, ^ J J-J JgJ. Q^, g J-^ tho this be but the Devife of a Trufl, and executory, and exprefled to be to J. for Life, vet it is an Ellate-tail in j1. barrable by a Fine and Recovtry. Sccus in cafe of Marriage-Articles to fettle an Eflatc on .-/. for Life, Remainder to the Heirs Male of his Body ; this betug an Agreement to do a future A, «^ . -in]* i-i Efiate from for Life to make a Jointure, notwithltanding which, ft?t"e-taii f ' ^^^ Remainder limited to the Iftue of his Body made for by this it an Eftate-tail ; and Mr. Attorney General Northey Devifee''^ faid, that he had known very eminent Men give that withoutFine Rowei even to a Tenant in Tail, and it had its Ufe, may mak^^ in regard that by the Statute of H. 8. the Power of Leafes to Leafing given to Tenant in Tail would bind only the mainder or (a) Illue, and not the Remainder or Reverfion ; but Reverfion ; j^^^y [^y j_]^jg exprefs Power, the Leafes made in Pur- the Statut': fuaucc thereof would bind the Remainder or Reverfion, ^ ^- ^•. as well as the lilue ; fo that fuch Power went further lenantin • -i \ ry I'lir Tail can on- than the Povk^er given by the Statute, and might be oi Leafctob'ar Scrvice, to prevent the Breaking into the Eftate-tail by thcifruc,and a Fiue and Recovery. not the Re- mainder or Reverfion. [a] i Inft. 44, Fifthly, As to the Objection, that this was a Devife executory and not executed, it being to take EfFe£l af- ter Debts paid; It was anfwered, that fuppofing the Debts were not then paid, yet whenever they ftiould be paid, it would be the fame Thing as if no fuch Debts had been, and confequently as a prefent Devife. 4 And Da Term. Pafchcc, 171 1. i4<; And Sir Thomas Porvis very much infilted upon the Cafe of (a) Legate verfus Senvell, where Money was devifed (<7)Ante87; to be laid out in Land, and to be fettled on a jMan for iJfe, Remainder to the Heirs Male of his Body, and the Heirs Male of the Body of every fuch Heir Male fucceflively, which Cafe was fent by the Lord Chancellor Cowper to the Judges of C. B. to determine what Eftate this would have been in Cafe it had been a Devife of Landj and it Was adjudged an Ertate-tail. Lord Keeper Harcourt : This being the Cafe of a Will, difters from the feveral Cafes that have been ci- ted of Marriage Articles, in the Nature of which the IlTue are particularly confidered, and looked upon as Purchafers ; and for which Reafon, the Court has re- llrained the general Expreffions made ufe of by the Parties ; for it cannot reafonably be fuppofed that a valuable Confideration would be given for the Settle- ment of an Eftate, which, as foon as fettled, the Hufband might deftroy. But no Cafe has been cited where, up- on the Words of a Will, or the Parties claim volun- tarily, the like Decree has been made. In all fuch Cafes, the Teftator's Intent muft be prefumed to be confiftent with the Rules of Law ; and at Law thefe Words would certainly create an Intail^ neither can it be inferred (with any CertaintyJ from the Power of Leafing given by the Teftator, that no Eftate-tail was intended ; in regard fuch Power of Leafing is more beneficial than that given to Tenant in Tail by Statute. And as the Debts are admitted by the Plead- ings to be all paid, the fame Conftru(Sion is now to be made, as if there had been originally no Truft. So decree Ah Share or fourth Part to be conveyed to him and the Heirs Male of his Body, Remainder over, ijfc. that being thought more proper by the Plain- tiff's Counfel than an Eftate in Fee. P o D E 146 D E Term. S. Trinitatis^ 171 1. Cafe 39- j» Thomus MecYs verfus Lord Stourton, £/ e contra. APeerofdie O IR Thowias MccYs brought a Bill -versus Lord Stmr- puTin h!s'° C3 ion to foreclofe him 5 and Lord Stourton brought Anfwer up- ^is Bill vcrfiis Sir Thomas Meers, to compel him to a but his An- fpecifick Performance of Articles for the Purchafing lrrroi°tJ-"' ^^ ^°^^ Stourton s Eftate. Sir Thomas in his Defence ries,andEx- infifted, that there were Defefls in Lord Stourton s a"vvftnef"r ^'^^^ ^° ^^^ ^^^^^ ' ^"^ ^'^ ^^'^^ ^^ ^^"§^^ Ordered that muft be on the Lord Stourton fhould be examined on Interrogato- ries touching his faid Title, it was obje£led, that the Lord Stourton being a Peer of the Realm, ought to anfwer upon Honour only. On the other Side it was anfwered, and fo ruled by Lord Keeper Harcourt, that tho' the Privilege of Peerage did allow a Peer to put in his Anfwer upon Honour only, yet this was reftrained to an Anfwer; and that as to all Affidavits.^ or where a Peer is examined as a Witnefs, he muft be upon his Oath ; and that this Examina- tion upon Interrogatories, being in a Caufe wherein i his Oath De Term. S. Trin. 171 1. 147 his Lordflblp was Plaintiff to enforce the Execution of an Agreement ; as his Lordftiip would have Equity, fo he Ihould do Equity, and allow the other Side the Benefit of a Difcovery, and that in a legal Manner : And fo ordered, that the Lord Stourton Ihould put in his Examination upon Oath. Katherine Copley an Infant verfus Lyo- ^^^^ 4"- nel Copley, ^^ ' I 'HE Plaintiff was the only Daughter and Heir of ^ Man has -■- Sir Godfrey Copley her deceafed Father, and Grand- ""«= Daugh- child and Heir of Godfrey Copley her deceafed Grand- 8000/^3^ father. cured by Marriage Settlement ; and afterwards he gives her 8000/. by his Will for her Portion, and 200/. pir Annum. The Daughter fliall have but one 8000 /. tho' Ihe may elciit wliieh of the Portions flie pleafes. In 1554. Godfrey Copley the Grandfather fettled his Eftate upon himfelf for Life, Remainder to his firft, ^c. Son in Tall, with a Provifo, that if his Son (after* wards Sir Godfrey) Ihould die without I due Male and leaving a Daughter, the Truftees Ihould raife out of Part of the Premlffes 5>ooo/. to be paid to fuch Daugh- ter within a Year after her Marriage, or at her Age of twenty-one, which fhould firft happen ; after which the faid Godfrey Copley died. In 1 58 I. Sir Godfrey Copley, purfuant to Articles on his Marriage, fettled all the fald Eftate (including the Premlffes charged with the 5CC0 /.) on himfelf for Life, Remainder to his firft, isfc. Son in Tail Male, Remain- der to Truftees for 200 Years, in Truft to raife 8000/. for Daughters Portions, (If no Iffue Malej payable at eighteen, if then married, or at any Time after, when married. In 148 De Term. S. Trin. 171 1. In 1709. Sir Godfrey Copley, having no IfTiie Male, by his Will deviied all his Lands to his Kinfman Lyonel Copley, the Defendant^ in Tail Male, chargeable with his Legacies, and devifed to the Plaintiff his Daughter Catherine for her Portion 8000 I. (vi^.) 4000 /. Part of it, to be paid her at her Age of eigh- teen Years, and 4000/. the Refidue of it, within a Year after Marriage, or, in all Events, at twenty-one ; and devifed to her i 50 I. per Annum until eighteen, and afterwards 200/. per Annum for her Life. And now the Plaintiff Catherine brought her Bill for the Recovery of all thefe Sums of 50C0/. 8000/. and 8000/. infilling, that none of them being given in Sa- tibfadion of the other, and it being the Cafe of an Heir at Law, and thefe Sums payable at different I'imes, fome lefs beneficial than others ; therefore, all thefe Portions, or at leaft the 5000 /. given by the Grandfather, and the 8 coo /. given by the Father, fhould be paid to her. Sed per Cur: The Will fays, that the 8000 /. given thereby is for the Plaintiff's Portion, and this 8000 /. and the Annuity of zoo I. per Annum for her Life, feem the moll beneficial ; but it is a hard Demand in Equity, when only one Portion is intended the Plain- tiff, that llie Ihould be fuing for three. Wherefore, for- afmuch as the Plaintiff has no Remedy to recover any of her Portions, but by the Aid of a Court of Equity, fhe ihall not recover more than was intended her. But the Infant fhall not by this Decree be precluded from ele£ling the Portion by the Marriage Settlement, if fhe, when iKe comes of Age, thinks that more for her Ad- vantage. However, Hie fhall not have two Portions inftead of one. Tomlinfc on De Term. S. Trin. 171 1. 149 Tomlinfon verfus Dighton. Writ of ^^f^ 4' Error from a Judgment in C. B. on a fpecial Verdift in Ejedment. T Argument for the Defendant. HE Cafe in (hort is but this: John Tomlinfon feifed in Fee of the Land in Queltion, ^•'"'- ^39- devifes the Premiffes to his Wife Margaret for her Life, ^""^jif '° ^• and then to be at her Difpofal, provided it be to any tor's wife, of his Children, if living, if not, to any of his Kin- [jg^'/o be"t dred that his Wife fhall pleafe. herOifpofaU provided it be to any of his Children, gives an Eftate for Life^ with a Power to difpofe of the Fee. And where fuch Devifee with an after taken Husband did by Leafe and Releafe, and Fine, convey the Premiffes to a Truftee and liis Heirs, to the Ufe of the Wife for Life, without Impeachment of Wafle ; Remainder to her Daughter by her firfl: Husband, and the Heirs of her Body ; Remainder to the Son by her firft Husband, and his Heirs : This adjudged a good Execution of Uie Power. TheTefta tor dies leaving K^ueWilliam and Hefler, Mar' garet the Teftator's Widow marries one Simon Siffon her lecond Huiband, and they two, by Indentures of Leafe and Releafe, reciting the Teftator's Will, grant the PremilTes in Queftion to Truftees and their Heirs, to the Ufe of Margaret herfelf for her Life, fans Wafte 5 Remainder to the Ufe of Hefier the Telbtor's Daugh- ter, and the Heirs of her Body ; Remainder to the Ufe of William the Teftator's Son and his Heirs. In the Deed of Releafe there is ,a Covenant, that this Sijfon and Margaret his Wife fhould levy a Fine of the Premiffes to the Ufes above mentioned, x^hidi Fine was accordingly levied. And the only Qiieftion is, whether this Leafe and Releafe, and Fine, pafs a good Eftate to Hefier and the Q, q .' Heirs i^'o De Term. S. Irin. 171 1. Heirs of her Body, expeflant upon her Mother's Death ? if fo, then fhe being dead, Rohen Carlijle the Heir of her Body, and LefTor of the Plaintiff, has a good Title. And I humbly take it, here Is a good Eftate con- veyed to Hefter and the Heirs of her Body. In this Cafe I fhall only make two Points, ifi. What Eftate paftes by this Will to Margaret the Teftator^s Wife, whether a Fee-limple, or only an Eftate for Life, with a Power to difpofe of the Fee to any of her firft Husband's Children, or Kindred ? Secondly, Admitting that Margaret has but an Eftate for her Life by the Will, with a Power to difpofe of the Premiftes to any of her firft Husband's Children, i^c. whether fhe has well executed this Power, in re- fpe6l of her being, at that Time, under Coverture; •With her fecond Husband, and (which is the chief Qiie- ftion) in refpe6l of the improper Conveyance which Ihe has made ufe of for this Purpofe. And, with Submiftion, I take it, that the declaring or limiting the Ufe by the Releafe to Hefier and the Heirs of her Body, expeftant upon her Mother's Death, is a good Appointment, and a good Execution of the Power. As to the firft Queftion, I would beg Leave to put it as a ftiort Cafe : A Man feifed in Fee, devifes his Lands to his Wife for her Life, and then to be at her Difpofal, provided fhe difpofes of the Premifles to any of his Children ; The Qiieftion is, what Eftate the Wife has by the Will in this Cafe ? 4 And De Term. S. Trin. 171 1. i^- herb. tit. Obligation, 13. Bro. tit. Obligation, 34. Dyer 1 18. Such Conditions as thefe, the Law will always, and without any Regard to Circumftances, defeat, being concerned to remove all Temptations and Inducements C c c to 15^0 De Term. S. Hill. 171 1. to thpfe Crimes ; and therefore, as in i /«/?. 205. a Feoffment ftiall be abfolute for an unlawful Condition, and a Bond void. But from hence I would infer, i)?, That where tHere inky be a Way found out to perform the Condition, without a Breach ot the Law, it fhall be good. Hob. \i. Cro. Car. 22. Perk. 228. ..^idiy, ,That all Things prohibited by Law, may be retrained by Coi;idition ; and therefore thefe particu- lar Reftraints of Trade,^ not being againft Law, m a proper Senfe, as being neither Mala in fe^ nor M/^la pro- hibita,^ and the Law allowing them in fome Jnftances, as. in .thofe,of Cuftoms and JJfumpftSj they may be re- ftrained by Condition. idly, Affirmatively ; The true ^Reafons of the Di- ftin£lion upon which the Judgments in thefe Cafes of voluntary Reftraints are founded, are, ifl, The Mif- chief which may arife from them, ij?, to the Party, by the Lofs of his Livelihood, and the Subliftence of his Family j zdly, to the Publick, by depriving it of an ufeful Member. .J,, Another Reafon is, the great Abufes thefe voluntary Reftraints are liable to ; as for Inftance, from Corpo- rations, who are perpetually labouring for excluiive Advantages in Trade, ^nd to reduce it into as few Hands as poffible ; as likewife from Mafters^ who are apt to give their Apprentices much Vexation on this Account, and to ufe many indire£l Pra£lices to procure fuch Bonds from them, left they ftiould prejudice them in their Cuftom, when they come to fet up for thenifelves. 3^/^, Becaufe in a great many Inftances, they can be of no Ufe to the Obligee : which holds in all Cafes of general Reftraint throughout England', for what I doe? De Term. S. Hill. I711. ipi does it fignlfy to a Tradefman in London^ what ano- ther does at Newcaftle ? and furely it would be unrea- fonable to fix a certain Lofs on one Side, without any Benefit to the other. The Roman Law would hot it>- force fuch Contra6ls by an Aftion. See (a) Pujf. lib. •). c. 2. JeSi. 5. 21 H. 7. 20. 4tbly, the fourth Reafon is in Favour of rhe{^ Con- trafts, and is, that thert may happen Inftances where- in they may be uieful and beneficial, as to prevent a Town from being over-ftocked with any particular Trade ; or in cafe of an old Man, who finding himfelf under fuch Circumllances either of Body or Mind, as that he is likely to be a Lofer by continuing his Trade, in this Cafe it will be better for him to part with it for a Confideration, that by felling his Cuftom, he may procure to himfelf a Livelihood, which he might probably have loft, by trading longer. Sihlyj The Law is not fo unreafbnable, 'as to fet 'jifide a Man's own Agreement for 'Fear of an uncer- tain Injury to him, and fix a certain Damage upon another J as it muft do, if Contrails with a Confidera- tion were made void. Bdrrow verlus Wood., March Rep. 77. Mich. 7 Ed. 3. 65. Allen 67. Z Co. 121. 'feut here it may be made a Qiieftion, that fuppofe It does not appear whether or no the Contraft be made upon good Confideration, or be meerly injurious and oppreflive, what fliall be done in this Cafe? ^Refp. I do not fee why that lliould not be lliewn by Pleading ; though certainly the Law might be fettled either Way without Prejudice ; but as it now ftands, the (a) The Inftances there mentioned are, that if any fhould agree not to wafh their Hands, or change their Linen, for fuch a Time, there could be no need to trouble a Magiftrate on the Breach of fuch Agree- ments, which would tend to no Confequence, when put in Kxctuiion. ipz De Term. S. Hill. 171 1. the Rule is, that wherever fuch Contrail flat indiffe' renter, and for ought appears, may be either good or bad, the Law prefumes it prima facte to be bad, and that for thefe Reafons ; \fl. In Favour of Trade and honeft Induftry. idly. For that there plainly appears a Mifchief, but the Benefit (if any) can be only prefumed ; and in that Cafe, the pretiimptive Benefit ihall be over-born by the apparent Mifchief. T^dly, For that the Mifchief (as I have (hewn be- fore) is not only private, but publick. ^thly, There is a Sort of Prefumption, that it is not of any Benefit to the Obligee himfelf, becaufe, it being a general Mifchief to the Publick, every Body is af- fedled thereby ; for it is to be obferved, that tho' it be not Ihewn to be the Party's Trade or Livelyhood, or that he had no Eftate to fubfift on, yet all the Books condemn thofe Bonds, on that Reafon, (vi'z^.) as taking away the Obligor's Livelihood, which proves that the Law prefumes it ; and this Prefumption anfwers all the Difficulties that are to be found in the Books. As \fl. That all Contrails, where there is a bare Reftraint of Trade and no more, muft be void ; but this taking Place, only where the Confideration is not fliewn, can be no Reafon why, in Cafes where the fpe- cial Matter appears, fo as to make it a reafonable and ufeful Contrail, it (hould not be good ; for there the Prefumption is excluded, and therefore the Courts of Jullice will inforce thefe latter Contrails, but not the former. idly. It anfwers the Objeilion, that a Bond does not want a Confideration, but is a perfeil Contrail 4 without De Term. S. Hill. 171 1. 193 without it ; for the Law allows no A£lion on a NU' dum paSlum, but every Contra£l muft have a Confide- ration, either exprefTed, as in Ajfumpfits, or implied, as in Bonds and Covenants ) but thefe latter, tho' they are perfe£l as to the Form, yet may be void as to the Matter ; as in a Covenant to (land feifed, which is void without a Conlideration, tho' it be a compleat and per- fea Deed. 3 - D d d i-^^ • fox 194 ^^ Term. S. Hill 171 1. for ; and therefore cannot but approve of the Indig- nation that Judge exprefled, tho' not his Manner {a) of expreffing it. Surely it is not fit that fuch unrea- fonable mifchievous Contrails fhould be countenanced, much lefs executed by a Court of Juitice. As to the general indefinite Diftln£lion made be- tween Bonds and Promifes in this Cafe, it is in plain Words this, that the Agreement it felf is good, but when it is reduced into the Form of a Bond, it imme- diately becomes void ; but for what Reafon fee 5 Lev. 241. Now a Bond may be confidered tw^o Ways, either as a Security, or as a Compenfation ; and ly?, Why Ihould it be void as a Security ? Can a Man be bound too fall from doing an Injury ? which I have proved the Ufing of a Trade contrary to Cu- ftom or Promife, to be. idly^ Why fhould it be void as a Compenfation? Is there any Reafon why Parties of full Age, and ca- pable of contra£lIng, may not fettle the ^antum of Damages for fuch an Injury ? Bra6l. Lib 3. c. 2. §. 4. It would be very ftrange, that the Law of England nyj p^ft that (h) delights fo much in Certainty, Ihould make Grantham a Coutnift vold, w^hett reduced to Certainty, which Vcl!"^ ' ^'^s good, when loofe and uncertain ; the Cafes in March's Rep. 77, i 91. and alfo Show. 2. are but indiffe- rently reported, and not warranted by the Authorities they build upon. ifl ObjeB. In a Bond the whole Penalty is to be recovered, but in Ajfumpfit only the Damages. I Rejp. [a) Hall expfefTed nrmfelf thus : A r,m Intent vous pitrres aver demurre Sur Luy que k Obligation eft void, eo que k Condition eft encountre Commoa Ley^ ^ per Dieu Si le Plaintiff f nit icy, il irra al p-iftm tanq; il uft fait Fine ail Roy. De Term. S. Hill. 171 1. ip J J » intheirVer- and coutrary to Direction. A\St contrary to the Diredion of the Court, a new Trial may be granted, even after a Trial at Bar. idly^ For that the Venire was wrong awarded, being de vicineto de Bewdley, whereas by the 4th and 5th of Queen Anne, cap. 16. for the Amendment of the Law, it ought to have been de corpore Comitatus. The Court, after Advice with the Juftices of C. B. and Barons of the Exchequer, gave their Opinion upon the firft Point the fame Term ; and the Lord Chief Juftice delivered it as the Opinion of all the Judges of England, (except Porvell) That when the Defendant's Counfel pray a fpecial Verdi^l, and the Court dire£l: the Jury to find one, if the Jury will take upon them to go contrary to that Direction, and find Matter of Law, it is a fufficient Ground for a new Trial, even after a Trial at Bar. For that it would be very unreafonable, that in Cafes where the Court and the Jury are both of Opinion againft the Party, there he Ihould have a Remedy by a Bill of Exceptions ; but that in Cafes where the Jury only are of Opinion againft him, and the Court doubtful, he {hould be abfolutely concluded, and with- out Remedy, as he muft be in this Cafe. I Poweli De Term. S. Michaelis, 17 12. 215 Powell^, contra: I do not very well know upon what Foundation of Law new Trials have been granted ; but I found the Courts in PofTeilion of fuch a Praftice as to Trials by Nifi prius ; but I do not know that this Pra£lice has been eftablilhed as to Trials at Bar. In- deed I do remember two in the Exchequer in my Time, but I was always of Opinion againft them, and that for thefe Reafons, becaufe one is a Trial at Common Law, and the other by fpecial Commiffion only; and becaufe Trials at Bar are much more folemn, and at- tended with much greater Charge to the Parties, than the other. I do not think any Thing ought to be a Ground for a new Trial, after a Trial at Bar, but what would make the Jury liable to an Attaint. Chief Jtiflice: The firft Cafe of a new Trial, which we find in the Books, is that of Wood and Gunfioriy in Styles ^61^ ^66. and that was after a Trial at Bar. The Pra£lice of the Courts is the Law in thefe Cafes ; and fo of Ejectments and Rules for paying Mo- ney into Court, which have no other Foundation. In the Cafe of Briflol v^erfus Cooper, a fpecial Verdi6l was prayed and direfted, and the Jury found generally ; whereupon a new Trial was granted for that Reafon. Dorvmans Cafe in the 9 Rep. is very obfervable, a- bout the feveral Duties of Judges and Jurors in this Particular. In moft Cafes, even where new Trials, after Trials at Bar, have been denied, the Judges have aflerted I i i the 214 -D^ Term. S. Mich ae lis, 1711. the general Right, and one Reafon why vve do not find this Pra£lice more ancient, may be, that there are no old Reports of Motions. Eyre J. I do not find the Reafons for new Trials con- fined to Mifdemeanors for which the Jury may be fined; the Cafe of Wood and Giwfion was noc io. But if a new Trial (hall be granted in a Cafe where the Jury have done wrong, in a Matter which is pro- perly under their Cognifance, I cannot lee any Reafon why It may not be done in Cafes where they take upon them to determine Matters not within their Cog- nifance. J^ide I Sid. 153. The Counfel for the Qiieen infifted, that this Verdifl: being fet afide for a Milbehavlour ot the Jury, and noc any Fault in the Profecutor, Coifs ought to be al- lowed. But the Court faid, there was no need of entrlng into that Qiieifion, till the Matter of the P^enire was determined ; and adjourned the Confideration of that till the Michaelmas Term following, for the Advice of the other Judges. Accordingly in Michaelmas Term (4 JSio-v.) this Point was argued before all the Judges ol: England at Seiyams- Inn in Fleet-fir eet. Serjeant Pratt pro Def: By the Statute of the 4 th and 5 th of her prefent Majefty for the Amendment of the Law, this Venire ought to have been awarded de cor- pore comitatiis. This is a Cafe within the exprefs Words and Inten- tion of the A£1 ; the Words are, " That from and I " after De Term. S. Mich ae lis, 17 12. 219 , 102. a. And this Statute is made for the Re- medy of that Mifchief in all Cafes where it might poffibly happen before, fome few only being excepted by Name. But in the prefent Cafe, Mr. Attorney General is contending for the Crown, that it lliall not have the Benefit of a very ufeful and advantageous Law ; this is like a Man's Difabling himfelf. Lit. Se6l. 4 1 o. I know no Inftance in the Law, where the Crowd is excluded out of general Statutes made for the Bene- fit and Advantage of Profecutors. The Cafes, wherein the Crown is held not to be bound, are, where it would otherwife be debarred of a precedent Right or Prero- gative ; but in the Cafe at Bar, the Crown was before this A61 in the fame Condition with the Subje£l ; and I hope it will appear, that this is not Placitum Coronet, but at moft a Civil Aftion brought in the Name of the Crown. See Sir Oliver Butler 'i Cafe, 2 Vent. 344. 3 Lev: 220. In Mr. Brervfters (a) Cafe, Holt C. ]. faid, this h) 6M0J. was a Writ of Right. **9- *rho' taking it either Way, vi^. as a Suit of the Crown j or of the Subje61, this Venire is wrong*, and if fo, we are in the only Method to take Advantage of it : The Sheriff has done his Duty, and obeyed the Command of the Writ, and therefore we could not Challenge the Array, but come to the Court to quafli it : Challenge is for the Default of the Sheriff, where the Writ- is rights Qiiaflilng is for Error in the Writ it felf. K k k Air, 21 8 De Term. S. Michaelis, 17 12. Mr. Salkeld: The great Objedlon in this Cafe is, that the Aft of the 4 ^ 5 Anm is a Statute of Jeofails^ and that therefore this Cafe is not comprehended within it. This A£1 of Parliament confifts of diftlnft Branches, which are feparate Laws ; fome of them are Statutes of Jeofails, and others Statutes alterative of the Com- mon Law, and the Claufe, upon which this Qiieftion arifes, is of the latter Sort. Statutes of Jeofails concern fuch Faults as would vitiate the Judgment, and make it erroneous, if given, and are to enable the Courts to amend fuch Faults, or to overlook them, and to give Judgment notwith- ftanding. The Claufe about Venire^ is not of this Nature, but is an intlre Alteration of the Law in this Particular, making that to be right now, which was wrong before, ^ fie "Vice verfa. Statutes of Jeofails make no Alteration in the Law j for the Errors they concern, continue fo notwithftand- ing, but only provide a Remedy, that they may not prejudice the Party. The chief Reafon why the Statutes of Jeofails have not been held to extend to the Crown is, that fuch Words are uted in them as always exclude the Crown, {vi^.) Plaintiff and Defendant, Demandant and Tenant, i5fc. otherwUe here. So far as this is a Statute of Jeofails, the Crown is not comprehended within it, but fo far as it is an A£1 of Alteration, the Crown is included. 2 Thus De Term. S. Michae/is, 17 iz. zip Thus in the -3^6 Ed. i. cap. i 5. the firft Claufe changes the Coiirfe of pleading, and by that the King has been always held to be bound ; but the fecond Claufe which provides, " That no Man fhall be prejudiced for Want " of Form in Pleading, ilfc.'' being a Law of Jeofails, has for that Reafon been held not to extend to the Crown ; fo of 16 ilf 17 Car. 2. cap. 8. Northey Attorney General pro Retina: The Pra6]:ice of the Crown-Office ever fince the makirrg of this A£1, in all Cafes of Informations, as well in thofe not ex- cepted, as in thole comprized within the Exception, has been to award the Venire de Vicineto, and it was never controverted till now. And to this Purpofe I would apply what I have heard my Lord Hale fay on like Oc- calions, " That Judges ought to have a great Regard " to Prailice, when the Matter is not res integra; and " when Things have gone on in that Courle a great " while, without being broke in upon." As to what has been faid, that the Words of this A61 extend to Cafes of the Crown, the 4 H. 6. cap. 3. has Words as general, (f/^.) any Procefs or Plea, and yet was never taken to extend to the Crown. The Claufe in the Statute of {a) Frauds, whereby Execu- (^) 29 Can tions are made to bind from the Delivery of the Writ ^- "p- 3- to the Sheriff, has general Words, (^7:^.) every Writ of '''^ ' Execution, and yet the Crown is held not to be bound by them, notwithftanding it had no Prerogative in the Cafe before. I wonder to hear this denied to be a Suit of the Crown, fince the fame being brought in the Name of the Crown, (tho' for the Benefit of the Party,) makes it the Suit of the Crown ; as in ^10 Warranto s, iyc. In a late Cafe of a ^w Warranto of a Claim of Filhery in feveral Vills, the T^enire was awarded from one 220 De Term. S. Michaelis, 17 12. one only, and held well enough, becaufe tried by a Jury of the proper County ; fo in the Cafe at Bar. if the Refolutlon in this Cafe (hould be contrary to the received Pra6lice, it would fhake all the Judgments that have been given upon Informations fince the ma- king of this A61. Raymond Solicitor General : The Words in feveral other Claufes in this Statute are as general as in this, and yet the Crown has been held not to be compre- hended within them; for Inftance, that about Demur- rers, and that about pleading double; Regina verfus Fo' ley, a Motion was made for Liberty to plead double, and denied, becaufe not within the Claule. The Words in fome of the former Statutes of Jeo" fails are as large and compreheniive as here ; however, they have not been held to extend to the Crown : Nay, it appears to have been the Opinion of the Ma- kers of this Aft, that neither thofe Statutes, nor this of the 4th and 5th of her prefent Majefty, could take in Crown Caies ; for they have added a Claufe at the End, to extend this and all the Statutes of Jeofails to Suits for Recovery of Debts owing to the Revenue., which had been fuperfluous, if the former Claufes had been fuflicient. But if this Cafe be held to be within the 4 in Truft to pay all the Debts which he fhould owe at his Death. All to be paid in a juft Proportion quaiiy, and witliout Preference of one Debt before another, dies indebted and died thus indebted. by Bond and Simple Contnift, the Bond Creditors may be paid Part of their Debts out of the Perfonal Eftate, and fhall neverthelefs come in upon the Truft Term for the Remainder, equally with the Simple Contratl Debts. The Bond-Creditors had been paid good Part of their Debts out of the Earl's Perfonal Eftate by his Executors. Upon which it was now objeiled, that if thefe Bond-Creditors would take Advantage of the Truft Term, they ought to wave the Benefit of their Preference out of the Perfonal Eftate ; that this was the Intent of the Teftator, who could let them into the Benefit of the Truft Term, upon 2 what De Term. S. Trin. I7i?» 229 en a is rai- what {a') Conditions he pleafed ; and that In Equity, a Simple-Contr?£l Debt was as much a Debt, and due in Confcience, as any other ; that equal Payments of all Debts were favoured in Equity, Equality being the higheft Equity. But by Lord Chancellor Earcoun, The Bond-Credi- tors may ftill come in to be paid the Remainder of their Debts, in Proportion with the Simple-Contra£l Creditors ; for the Law gives them the Fund of the perfonal Eftate, and the Party, (t;/^.) the late Earl, gives them the Fund of the Truft-Term ; and the Claufe that no Debts Ihall have Preference, muft be intended only with regard to their Satlsfa£lion out of the Truft-Term. His Lordfhip alfo declared, that by this Truft-Term wh^. the Simple-Contraft Debts became as Debts due by ^'"'^ Mortgage, and confequently fliould {b) carry Interelt Debts.^sfm- as well as the Debts fecured by Bond. ^'^iF?^; •' traft Debts fliall carry Intereft. {b) Vide poft Maxwell verfus Wtttenhall. Darhifojiy on the Demife of hong, ver- cafe 50. fus Beaumont. On a fpecial Ver- did: in Ejedment, /;; Scacc\ John Specot, felfed in Fee of the Manor of Penheal •^ and divers other Lands, ^c. In the Counties of Corn- Heir, Male ypall and Devon, 19 Aug. 1703. makes his Will, and °^j^;^*'y^^* after devifmg the PremilTes to Truftees for the Term havingaSoni of twenty-one Years, for the Payment of Debts, isfc. ^^i^ftJh^g he fettles the fame on the firft Son of his (the Tefta- Notice that y. S. was then living, a fufficient Dcfcrlption of the Teftator's Meaning ; and fuch Son fliall ukc, tho*, ftricftiy fpcaking, he be not Heir. N n n tor's) (a) Vide poft the Cafe of Deg verfus Deg contra. Tho' in that Cafe the Devife was of all the real as well as perfonal Eftate to pay Debts -, which feemed to fhcw, that the Tcftator intended to make all but one intirc Fund. 230 De Term. S. Trin. \.^i\ tor's} Body lawfully begotten, and the Heirs Male of the Body of fuch firft Son lawfully ilTuing ; and for Default of fuch IlTue, to the Heirs of his (the Teftator's) Body lawfully to be begotten ; and for Default of fuch Ilfue, to his Coulin John Sparke for 99 Years, if he fhould fo long live, Remainder to his firft, ^c. Son in Tail Male; and in Default of fuch IlTue, Remainder to the Heirs Male of the Body of the Teftator's Aunt Elii^detb Long lawfully begotten ; and for Default of fuch lilue, Remainder of all his Lands to his (the Te- ftator's) right Heirs. The faid Teftator alfo gives a Legacy to his faid Aunt Elizabeth Long, whereby he takes Notice that fie was living, and that ftie had three Sons A. B. and C. to whom he gives a Legacy of 500 /. He alfo gives to Dorothy Beaumont (who was his Heir at Law) an Annuity out of the faid Premiftes of I 50 /. per Annum, and to her Children 500 /. a-piece. Afterwards the Teftator died without IfTue, and John Sparke alfo died without Iftue ; upon which the Qtieftion was, who was intitled to the Teftator's real Eftate ? whether his Heir at Law Dorothy Beaumont, or A. the eldeft Son of the Teftator's Aunt Elizabeth Long ? For the Heir at Law it was objefled, that her Right was in its Nature favourable, and to be fupported by the Common Law of England, and therefore all Devifes that difinherited the Heir were to be conftrued ftriftly. That to make this Devife good to A. it muft be con- ftrued either a contingent Remainder, or the Words [Heirs Male] be taken as defcriptio perfon^e, fo as to veft a Remainder in him. That as a contingent Remainder it could not be good, becaufe there was no Freehold lo z fuppoi t De Term. S. Trin. 17 1 3. 231 fupport it ; all the precedent Eftates being for Years ; and if it were good as a contingent Remainder in its original Creation, yet E//'^. Long being living at the Te- ftator's Death, fuch Remainder could not by the Rule of Law veft, as it ought to have done, at the Determina- tion of the particular Eftate j that Keirs Male of the Body of the deflator's Aunt Long^ could not be underrtood by way of Dejignatio, or Dejcriptio pcrfon^ ; for that is fuch a Defcription as is vice nominis ; whereas the Word [Heirs] did not agree with the Perfon pretended to be defcribed ; he was not Heir of Elizabeth Long, nor could be, while flie was living ; and [Heirs] being a legal Term, could be underftood only in a legal Senfe, unlefs fome other Word or Words accompanying it, lliould determine the Senfe otherwife, as Heir apparent, or Heir now living; and the Word [begotten] did not de- termine the Senie otherwife, becaufe Heirs begotten (a) ox ^"'' ^ ^"^• to be begotten had the fame legal Conlf ru£l:ion ; and it 2Vern.545, did not appear that the Devifor had any Intention tcj ^"j^j j confine that Devife to the Iffue Male of Elizabeth Long Chanc. 491. then living, much lefs to A. only, who would take as ^."^^f^^ /^'/ the Heir defcribed by this Devife. land, h Gore verfus Gere. But it was adjudged by the whole Court of Exche- quer, (except Baron Bury,) that A. the eldefl: Son of the Teflator's Aunt Elizabeth Long was intitled to the PremilTes, and not the Heir at Law ; which Judg- ment was afterwards reverfed by the Opinion of the two Chief Juftices in the Exchequer-Chamber ; and that Reverfal at laff * reverfed in the Houfe of Peers; * May 17 17. and the Reafons, upon which the Court of Exchequer gave Judgment, and upon wKic.h (as it was appre- hended) the Houfe of Lords affirmed that Judgment, were thefe ; That A. the eldeft Son of Elizabeth Long, was the Per- fon defigned to take by the Appellation of the Heir Male 232, De Term. S. Tr'tn. 17 13. Male of the Body of the Teftator's Aunt Eli'z^aheth Long lawfully begotten. As to the Objeftlon that Mrs. Long being living, there could not, in a legal Senfe, be any Heir Male of her Body begotten to take by the Will : It was anfwered, that the Intent of the Teftator by the Devife ("which was the only Matter in Queftion,) did plainly appear, not only from the Words of that Part of the Will, but throughout the whole Will. That the Word [Heir] had in Law feveral Significa- tions: In the ftrifleft, it fignified one who h?.d fuc- ceeded to a dead Anceftor ; but in a more general Senfe, it fignified an Heir apparent, which fuppofed the An- ceftor to be living. That in this laft Senfe the Word [Heir] was {a) ufed in Statutes, Law-Books and Records ; and fince the Law had given to this Word feveral Senfes, it would be hard to expound it in that which was the ftrifteft, and moft rigorous, and would deftroy great Part of the Will ; at the fame Time, that by Law it might have another Senfe, which would fupport the whole Will and Intent of the Party. That the Intent of the Party being the principal Rule for the Expofition of a Will, the Teftator was excufed from ufing the ftriil and proper Terms and Phrafes of Law, and had Liberty to ufe fuch Expref- fions as he pleafed ; for, provided they were fuch as fufficiently declared his Intent, it was enough ; and his Intent fhould take place, if by any Poflibility con- fiftent with the Rules of Law. 4 Now {a) See the Writ of Ravlfhment of Ward Quarefiihm fi? hieredem ra- puity tf 2 Inft. 439. and 25 Ed. 3. which makes it Treafon to kill the Heir of the King. De Term. S. Tr'in, 171 3. 235 Now the Teftator in his Will took Notice, that the Sons of his Aunt E//^. Long were living, and gave them Legacies : He alfo took Notice, that £//;^. Long the Anceflor was living at that Time, and gave her a Legacy ; and therefore could not intend that the firft Son fhould take firifily as Heir, which was impoflible if Ihe was living, but as Heir apparent he might. Again, the Teftator gave his Heir, the Defendant, an Annuity, and therefore did not intend that fhe Ihould have the whole Eftate ; and the Limitation to the right Heirs was exprefly in Failure of Illiie Male of his Aunt E//^. Long, fo that the Intent was plain, that the appa- rent Heir Male of the Body of his Aunt Long, (who was the LelTor of the Plaintiff,) flaould take before his Heir general, who was the Defendant Dorothy ; and that fhe ftiould not take more than an Annuity, as long as there fiiould be Iffue Male of his faid Aunt £//^4- hth Long. That by this Conftru6lion, every Part of the Will would ftand and be confiftent ; and the Word [Heir] would be alfo taken in a Senfe that the Law allowed of. But if it were to be conftrued otherwife, feveral Parts, and fome whole Lines together, of a fenlible Will muft be expunged, and the Heir at Law muft take, contrary to the exprefs Meaning of the Teftator. Laftly, That this Cafe was the fame with the Cafe of Burchett verfus Durdant (a\ which had formerly 311^ been difputed under the Names of James verfus Rl- (>>) ' v«"^- chardjon {b), where a Devife to the Heirs Male of the 2 Lev. 232. Body of Robert Durdant then living, was adjudged in ^ ^J'^,;J^°' O o o Wcflminfler- Poll. 457. ^?4 De Term. S. 7rtn. 17 1 5. Weftminftcr-Hali, and twice affirmed in the Houfe of Lords, to be a good Limitation to George the eldell: Son of Robert Durdant, tho' Rohert tiurdant was then living ; iince there could be no great Difference be- tween Heirs Male of the Body of Robert Durdant then living, and Heirs Male of the Body of the Teftator's Aunt Long lawfully begotten ; the Words then begotten being tantamolint to then living. Cafe 51. Lord Chan cellar Har- court. Kentip verfus Ne-ivman. Articles conflrued a- gainft the Words for the Sake of the Inte!U. As where the Wife's Portion was J-JENRT Kentiffj intermarries with M/irjy Hanrvell Widow, who (inter at) is poflelled of 200/. put out on Securities, and the Huitand, before the Mar- riage, articles to lay out fo much Money of his own, as with the Wife's 200/. fhould purchafe 30/. a Year; and this to be fettled on himfelf and his Wife for their Lives, Remainder to the Heirs of their Bodies, Re- to be laid out mainder to the Husband in Fee; but imtil fuch Settle- in Land fo i i • , • i i i i be fettled on ment made, this 200/. is agreed to be taken as the H^.!j)andand feparate Eiiate of the Wife ; it is alfo agreed by the theHeirsof faid Articles, that if no fuch Settlement Ihall be made Ind'ifnot^'' ^^^^■'"S ^^""^ 3^^'"^ Lives of the Husband and Wife, then laid out in the 200/. ftiall be to the fole Ufe of the Wife, if J^h'jf J,"i;,;"Miving, but if Ihe lliall die before her Hufband, then Lives; and the 2Co/. to TO to her Brorher and Sifter. the Wife ° ftiould die firif-, that the Money (hould go to the Wife's !Brother and STfier : Wife dies firfJ, lea- ving IfTue, and the Money is not laid but in a Purchafe, yet the'Iffue, and not the Wife's Brother and Sifter, ihall have it; Equity fupplying the Words, ;/ the jyife die -without IJJue. In 1688. the Marriage takes EfFe£l, of which there was Iffue a Daughter the Plaintiff ; and in September i"] 1 1, the Wife dies, leaving no other Iflue, Arid whether, acc6rding to the Letter of the Arti- cles, this 200/. (hould go to the Wife's Brother md Sifler, or to the Daughter ^ (to whom the Father by his An- I fwer De Term. S. Trin. 1715. z^^ fwer confented it fliould go In prefent for her Advance- ment in Marriage,) was the Qiieftion ? Decreed, that the Daughter ftiould have this 20c/. and not the Wife's Brother and Sifter ; for that the Intention ot the Articles was, to provide for the Wife, and the Ifl\ie of the Marriage, and not for the Bro- ther and Sifter of the Wife ; and for that the Parents were, by the Law of Nature, bound to take Care of the Ififue, but not of the Wife's Brother and Sifter, who were provided for before, and for whom, tho' they had been left deftitute, ftill the Wife was under no Obligation to provide. That it could not be intended that the Wife ever thought of preferring her Brother and Sifter before her own Child ; and tho' the Words were, if the Wife jhould diet living the Husband, then the 200/. to go to the Wifes Brother and Sifler, yet muft they be conftrued to mean, if the Wife Ihould die without I(fue. That even in the Cafe of a Conveyance of a legal Eftate, the Words [without Iftue] had been fupplied ; thus in Cro. Car. 185. Spalding verfus Spalding {a), (the ('') See this fame Cafe cited in i Vent. 250.) Lands were devifed poft, Hev;it to A. the Teftator's eldeft Son, and the Heirs of his J^jj"^ ■^"- Body, and if he died living his Mother, then to the Teftator's fecond Son ; A. died living his Mother, and leaving KTue; in which Cafe, It was obje£led, that the fecond Son ftiould take, and that thefe Words [if he died living his Mother] were corre£live and explanatory of the tirft Words ; but refolved otherwife, and that the Court would fup- ply the Words [without Ifllie] ; for that it could not Le intended, that the Teftator would prefer the fecond Son before the Iftiie of the eldeft Son ; fo neither in this 23^ De Term. S. Trin. 17 15. this Cafe could it be thought, that the Wife would prefer her Brother and Sifter before her own Child. That this being Matter of Articles was more under the Controul of a Court of Equity, than if it had been a vefted Eftate ; this was Truft-Money, over which the Court had a Power. Money to be laid out in Land was to be taken as Land ; and tho' this Money was not inverted in Land within the Time required by the Articles, yet the Court would difpenfe with that; and if it had been invefttd In Land within the Time, then, by the exprefs Words of the Articles, it was to go to the IlTue of the Marriage. Befides, In this Cafe, one of the Truftees themfelves, (t;/;^.) the Brother, (who was to take Advantage of not laying out the Money in a Purchafe,) had de- clared, he would not claim Title to the Money, if it were not invefted during the joint Lives of the Huf- band and Wife; which Declaration might naturally be prefumed to have been the Reafon why the Money was not laid out. Truftees not Alfo It was the Duty of the Truftees to call upon the vanTacre of" Husbaud to lay out the Money and make the Purchafe; their own jnftead of which, one of them, by declaring he would not take the Advantage of any Omiflion of that Kind, had incouraged him to fit ftill ; fo that if fuch Tru- ftee were to have the Money, he would reap a Benefit from his own Wrong. 4 Ex •D^ Term. S. Trin. iji\. 257 3,]j ;, Ex parte Smith, On iPetition. cafe 52. , Lord Chan' 3 ■ - f f /&/■ Har- ^ Lends Money to 5. and C. on their Bond, B. be- ""^t- 'comes a Bankrupt;, and the Comhiilhoncrs aflmn ^■''"'^'^''; ..-.»,' O ncy to i(. and his Eltate in Trulr for his Creditors : c. on Bond, ^ ". ,,,^ B. becomes Bankrupt, and his Eftate afligned l>y Commiflioners ; A. fucs C. nnd talteshltfi in Execution on a Ctf' Sa\ and afterwards corifents to his Efcapc; yit A. fliall come in as a Crcditoi- of the Bankrupt for a Moiety of his remaining Debt. A. fues the Bond agiinft C. the other Obligor, and r-cr covering Judgment againft him, takes him in Execu- tion by Ca Sa\ and C. thereupon paid A. 24/. but C. be- ing old, and having no Eftate, and living only upon Charity, A. contented to ditchar2;e C. out of Execution, Upon which it was objeSed, that this being an E- icape with the Conient of the Plaintiff the Obligee, and the Debt being, in Law, intire, it was a Difcharge of the whole Debt, and fhould operate, as well for the Benefit of B. the Bankrupt, the other Obligor, as of C* But it was anfwered, that the Bankrupcy of B. and the Aihgnment of his Eftate, were prior to the Execu- tion taken out againft: C. and by that Aflignment A. the Plaintiff had an Intereft in the Eftate of B. the Bankrupt ; which Intereft could not be difcharged, by A.^s taking out an Execution afterwards againft C. the other Obligor, any more, than if two were bound irt a Bond to me, and 1 lliould recov^er judgment, and take out an Execution by Fi' Fa agarnlf one, and afterwards on obtaining a Judgment fue out an Execution by Ca Sa againff the other, and then confent that the latter lliall efcape, this will not difcharge the Execution on the Fr Fa\ which was before compleated againft the for- mer Obligor; and that ftiil this, was harder Do^lrine in Equity. P p p Lord 238 De Term, S, Trin. 17 13. Lord Chancellor: Let A. the Petitioner, who is the Obh'gee in the Bond^ come In as a Creditor before the AlTignees, for a Moiety of the remaining Money due on the Bond ; for the Execution agalnft C. being fub- fequent to the Aflignment of the Eftate of B. the Bank- rupt, fhall not (at leaft in Equity) difcharge A's De- mand out of the Eftate of the Bankrupt; but in re- gard, each, in Equity, was liable but to Half the Debt, and C. was not the original Debtor for the whole, A. the Petitioner fhall only have Relief for a {a) Moiety of his remaining Debt agalnft the Aflignees of B. the Bankrupt. But Lord Chancellor fald. If B. the Bankrupt had been the original Debtor, and had borrowed aU the Money, then A. ftiould have come in before the AlTignees as a Creditor for aR his Debt. {a) ^. Why fliould not the Petitioner, in this Cafe, be allowed to come in for the Remainder of his whole Debt out of the Effefts of the Bankrupt, fince each of the Obligors was liable to him for the whole ? 4 DE 239 D E Term. S. Michaelis^ 1715- Broderkk verfus Broderick. ^^ Lord Chan- cellor Har- ONE Devifes Lands to J. S. and his Heirs, ^°"«- and duly fubfcribes his Will in the Prefence Sri' wm" of three WicnefTes ; but the Witneffes, for the Eafe defediveiy of the Tettator, go down Stairs into another Room, reprefems and atteft the "Will there, which is out of the ^^ "^^'^i Prefence of the Teftator. ecuterand for a fmall Sum gains a Rcleafe from the Heir ; Releafe fet afide. Afterwards the Heir at Law, in Confideratlon of 1 00 Guineas paid him by J. S. the Devlfee, does by Deed, reciting that this Will was duly executed, re- leafe to the Devlfee all his Right to the Eftate devifed ; and after that, there being DebtsVppointed by the Will to be paid, the Devifee tells \he Heir, that it would facilitate the Railing the Money for the Payment of the Debts, if He (the Heir) would join in a Leafe and Releafe of the devifed Premiifes ; and thereupon, for fifty Guineas more paid to him, he, (the Heir) toge- ther with the Devlfee, by Leafe and Releafe, conveyed the PremifTes to 7. N. and his Heirs, in Confidcration of 240 De Term. S. Michaelh, 171 3. of 4000 /. mentioned to be paid by J, N. and a Receipt was given for the Money ; but, in Truth, this Purchafe Money was not paid, but J. N. was a Truftee only for the Devifee, and fo admitted to be by the Anfwer. On a Bill brought by the Heir to be relieved againft the Conveyances executed by him, For the Devifee it was faid, that the Will, as to the Devifor, was executed, and the Form of the Wit- neffes fubfcribing in the Prefence of the Teftator, was only prefcribed by the Statute of Frauds, to prevent a rafli Difinheriion of the Heir ; but fince the executing of the Will was fully proved, though the Circumilances required by the Statute had not been obferved, yet it was the plain Intention of the Teftator, that the Devifee iliould have the Eftate ; and the Devifee having the legal Eftate, it would be hard to take it from him in Equity, and by that Means to difpofe of the Filiate againft the Intent of the Teftator, from the Devifee, for want of a Ceremony, when the End of That Ceremony was anfwered, by it's being made to appear, undoubtedly, that the Telfator did Sign and Seal this Will. Siifp-ejfio Cur : Either (a) SuppreJJio veri-, or Suggeflio falji^ is a ^IjiioJiiiJJ' good Reafon to fet afide any Releafe or Conveyance : is, each of ]\'o\v to recitc in a Deed ("as in this Cafe) that them, a good , , _,.,.,, , , i i • • Reafon to the Will was duly executed, when it was not, is foafideany Suggejl'io falji, nud to conceal from the Heir (as Convey- in' this Cafe) that the Will was not duly executed, '•"'^'^- is SuppreJJio veri ; fo that both Circumftances concur* And though there was one Witnefs, who, upon the laft general Interrogatory, fwore, that the Heir did declare to him, that the V/ill was not worth any {(i) Vid. I Vern. 20. Jervis verfiis Duke, alio the latter C*;ife of C^tw • verliis Can, poji. I Thing De Term. S. Michae/is, 171 3. 241 Thing, and that the Heir made fuch Declaration before his executing the Releafe, yet this was not regarded. For Lord Chancellor faid, it was not to be be- lieved, that if the Heir knew that the Will was not duly executed, he would, for fo fmall a Conlide- ration, have parted with his Eftate. So the Court relieved againft the Releafe, and the Leafe and Releafe ; but ordered the Heir to pay back the ico Guineas, and alfo the 50 Guineas, with Intereft. Gifo 54. r Lord Chnn- Churchill verfus tady Hohfon ^ al\ t^^''- SI R Charles Hobfon did in his Life-Time place great '^"'° ^.''!'' Sums 01 Money m the Hands or one Goodivyn a in a Receipt^ Banker, who at that Time, and for a confiderable ''""' "!-'>', Time afterwards, was a Perlon 01 very great Credit, actually and was Cafhier to very many monied Perlons. Moi,cv *'"^ 1 ' ' '^°'h charge- able to Creditors, but not to Legatees; TwoTfuftees join in a Receipt, and one receives the Money, only the Receiving Executor fliall be clwrged. Sir Charles dies, and leaves the Plaintiff Churchill and Goodrvyn Executors, after whofe Death, Goodivyn continuing .in the fame Credit, the Plaintiff r/;«rf/;/// paid 500 A of the Money of his Teflator Sir Charles into Goodnyns Hands, and ieveral bf Sir Charles's Cre- ditors, on paying in their D^bts, did require, that vvlien they paid their Money to the Executor Good- wyn, his Co-Executor Churchill jJjoiild join in the Receipt for this Money, which accordingly was done. But upon the Plaintifl: Chnrchilfs joining in the Receipt, Coodnyn did, on every fuch Payment, give a Note to Churchill, by which it -\\''as acknowledged, . tljat .tjlqiigh the Q_ C| q Plain- 242 De Term. S. Michaelis, 171^. plaintiff Churchill had joined in the Receipt, yet it was He, vini. Goodwyn only, who received the Money, and the Money which Goodwyn thus received, and on Payment whereof Churchill joined in the Receipt, amounted to 1 1 CO /. after which Goodrvyn broke, and became In- foh'^ent. The Bill was brought by Churchill, to be difcharged of the Executorlhip, and to be indemnified againfl: the Bankrupcy of Goodwyn. Whereupon it was now obje£led by Mr. Vernon, that the Plaintiff Churchill having joined in the Re- ceipts, this made him liable for the whole Money : (tf) Ante 81. He admitted, that in the Cafe of {a) FeUorves verfus Otven, where A. and B. were Truftces in a Mort- gage for 2000 /. and they both joined in a Receipt for the whole Money ; (whereas in Fa61, they had re- ceived each but looo/.) that though Lord Keeper Wright {b) had decreed each fhould be liable for the v/hole, in Refpe£l of the Receipt that had been given, yet Lord Cowper reverfed that Decree, conceiving it to be againfl: natiural Juftice, that one fhould be liable for the Receipt or AQ: of another ; though this had been fo decreed in the Cafe of two Trujiees, yet in the Cafe of Executors it was otherwife. Becaufe, as one Executor alone might give a Dlfcharge, the join- ing of the Other was an unneceffary Aft ; for which Reafon if the Money were loft:, each Ihould be liable ; that accordingly, it was thus held in the Cafe of Wilkins verfus Allen, and more particularly in that of Murrel verfus Pit, decreed, firfl:, by Sir John Trevor at the Rolls, and affirmed afterwards on Appeal by Lord Cojvper. (b) It feems as if Lord Keeper Wright had only intimated an Opinion of that Kind, fince it does not appear by the Regifter-Book that he made any Decree in that Caufe. 4 Sed De Term. S. Michaelis, I'ji^. 243 Sed per Lord Chancellor Harcourt : It feenis to me imreafonable, that one Man fliould lufFer for the Default of another ; at Icaft the Difference ought to be betn^een the Cafe of a Creditor and that of a Legatee. In the Cafe of Creditors, who are intitled to the utmofl Be- nefit of the Law, the joining of the Executors in the Re- ceipt, may make each liable for the Whole; but when Legatees, or fuch as claim under the Statute of Dillribution, are the only Perfons concerned, and who have no Remedy for their Demand but in Equity, it is altogether u inequitable, that one Executor lliould anfwer for the Receipt of the Other, the joining in the Receipt being but Matter of Form ; whereas the fubftantial Part, and which alone is to be regarded in Confcience, is the a£lual Receipt of the Money. Neither do I think the Executor Churchill ought to be chargeable for the 500/. by him paid to Goodnyrij he having beeii the Caftiier with whom the Teftator in his Life-time chole to intruft his Money, and therefore the Executor ought not to fufFer for having trufted him, whom the Teftator himfelf in his Life trulteJ, and at his Death made one of his Executors. D E 244 D E Term. S. Hillarii^ 1713- Cafe 53. Lord Chan- cellor Har- court. Bealc verfus Beale. A Was Tenant for Life, Remainder to his firft, i^c. Daughter, * Sott in Tail Male, Remainder to his Brother B. in where there 'YsW. A. having no lUlie, A. and B. joined in a Recovery, or where the to the Ufc of A. for Life, Remainder to fuch \Vo- Eftatebya j^^j^ ^g ^^ ftiQuld marrv, for her Life, Remainder to Settlement r (\ J^ r • m • 1 goes all to a the hrlt, iyc. Sons or A. m Tail Male, Remainder to Remainder- ^^ ^.^^^ Brother in Tail Male, Remainder to A, in Man, IS a ' vounger FcC. Child in E- quity. With a Power to A. by Deed, or Will, to charge the Premiiles with any Sum not exceeding 2coo/. for Portions for younger Children, Sons or Daughters, who fliould be li-ving at his Deaths in fuch Proporlions as he fliould think fit. A. marries, and has IlTue two Daughters only, one of whom was born after his Death. A. by his Will charges the Premifles with icccL to his Daughter Mary\ payable at twenty-one, or I Mar- De Term. S. Hill. 171 3. 24^^ Marriage ; but if the Child, with which his Wife was then enfient, fhould prove a Daughterj then he di- rects that the icool. fhould be equally divided be- twixt them* A. dies, and the two Daughters, being of very tender Years, bring their Bill for the raifing of this 2000/. out of the Reverfionary Eftate, and to have Intereft in the mean Time for their Mainte- nance. Obje£led, The elder Daughter is not intitled to any Part of this 2000/. becauie it was only to go to the younger Children ; and the younger Daughter cannot claim any Part of it, becauie fhe was not living at the Time of A.'j Death, and by the Words of the Settle- ment, the 2000/. was to go to the _>'0K«g-^r Children that A. fhould have living at his Death. Cur : The eldeft Daughter, tho' firft born, when there is a Son, has been often ruled to be as a younger ^''l^'''^ , , .\ /a ^o^, Butler Child [^a). \edusDun- combe. Every one, but the Heir, is a younger Child in E- quity, and the Provifion which fuch Daughter will have, is but as a younger Child's, in regard the Son goes away with the Land as Heir ; fo here, the Eftate by the Settlement goes all to the Remainder- Man, who is H^res faCtus, and neither of the two Daughters is Heir ; wherefore the elder Daughter ha-» ving no more than the Younger, is (as to this Provifion) ^^^^J""/" , a younger Child, and confequently capable of taking it. for potions" for younger Children living at the Father's Death ; 2 Child in Ventre fa Mere, is a Child within the Power. K r ]t As 2^6 De Term. S. Hill. 17 13. As to the other Objecllon, it would be very hard in a Court of Equity, that a Child, becaufe it happened not to be born at fuch a I'ime, muft, therefore, be unprovided for ; but as the Law, in many Refpedls, regards an Infant in Ventre fa Mere^ fo as to allow {«) iinft. ^^^^^ Child to be {a) vouched ; alfo, as the Mother may ,0 T a be "uiltv of the Murder (b) of a Child in Ventre fa 50,51. Mere., if ihe takes Poilon, with an Intent to poiion it, and the Child is born alive, and afterwards dies of that Poifon : So there is more Reafon that Equity Ihould conlider fuch Child, in order to its being -provided for 'j and therefore this Pofthumous Child may be well (OPoft looked upon, in Equity, to be {c) living at her Fa- vctLI^ thers Death, in Ventre fa Mere. Strange, Vide alfo the Cafe of Burdjt verfus Hopegood, poft. Where And wIth Regard to that Part of the Bill, whicli fetied on'' prayed to charge the Remainder only, with this 2000 /. ^. for Life, Portion, the Court held, that the Power, and the S^'fi'LTwo- Charge made purfuant thereto, did affeft the Wife's man as he gft^te fot Life, as wcll as the Remainder, and that ryrfor Lifc^ it was like a Power of Leafing, which over-reaches Remainder ^|| j.j-,g g^^ates J for which Reafon it is ufual to infert Power to a Provifo in fuch Power of charging, that it fliall not Pr'em'iffw ptcjudice the Jointure, or other precedent Eilates. ■with any Sum of Money, fuch Power, unkfe there be a Claiife inferred to the co-ntr^ry, will, like a Power of Lcafiug, o.ver-reach all th^ E(Utes. D E 247 D E Term. S. Trinkatis^ 1714- Jenner verfus Harper. ca 56. Salk. 163. TENANT in Tail of the Manor of Widhil in f^^-" Berks, made a Nuncupative Will, which was court. afterwards reduced into Writing ; and by it he de- Devife by vifed, that his Executors ftiould purchafe a Parcel of S"e wot Ground in Cricklade in Wilts, for the ere£ling of a byi^nant Free-School there, and gave to the faid School 20/. Rcnt'^out^of per Annum Rent, to be paid out of his faid Manor of Land to a Widhilly and died. void?3!ough the Will was made before the Statute of Frauds. The Will was made, and the Party making the fame died, before the Statute of Frauds and Perju- ries ; and the Will was proved in the Spiritual Court as a Nuncupative Will. In Purfuance of the Will the Executors bought the Ground in Cricklade, and built the School thereupon^ and the CommifTioners for charitable Ufes decreed the IlFue in Tail of the Manor of Widhil to pay the Arrears of the 2 o /. per Annum Rent to the School. Zd8 i^^ Term. S, Trin. 17 14. (a) 2 Vern. The KTue in Tall, upon this, except to the Decree, and the Exception coming on before Lord Chancellor Bar court, it was infilled for the Decree, that though this was void, as a Will, yet it was good as an Ap- pointment, by Virtue of the Statute of 43 Eli^. cap. 4. cf •' Charitable Ufes ; as if Tenant {a) in Tail had devifed 453. 4S-1.- j_^^j without having levied a Fine, or fuffered a Re- Devifd bv covery ; or a Copyholder had devifed his Copyhold to Tenant in charitable Ufes, without fiirrendering it to the Ufe of ChaHty^ his Will ', fuch Devifes would be made effeaual. goocl,thou2h no Hue levied, or Recovery fuffered previous thereto. But, after Time taken by Lord Chancellor to con- fider of this Matter, his Lordfhip allowed the Excep- tion, and reverfed the Commiffioners Decree, forafmuch as at Common Law, Lands, or a real Eftate, were not devifable ; and by the Statute of 3 2 H. 8. it is as much required that a Will of Lands Ihould be in Writing, as by the Statute of Frauds and Perjuries, it is required that fuch a Will fhould have three Wit- ,'i) 2 Vern. nellcs ) and as in Johnson ■=> {b) Cafe decreed by cS^'in '^^" Lord Chancellor Cowper, a Devife of Land in Writing Chan. 270. to a Charity, fince the Statute of Frauds, but not at- teiled by the three WitneiTes, was held to be void; fo a Devife of Land without Writing fhould be void alfo, efpecially, it being by Tenant in Tail, and of a Rent too, which cannot pafs but by Deed ; and it would be very dangerous to allow of nuncupative Wills of Land. Scd ^ure, ^ vide Dukes Chnritable Ufes 8 i . Stoddard'^i Cafe, where one, before the Statute of Frauds, devifed a Rent of 10/. per Annum, out of Lands to a chari- table Ufe, and willed that one Hugh the Scrivener Ihould put it into Writing, which was accord- ingly done, and decreed, that this Nuncnpiitive I Will De Term. S. Trin. 17 14 249 will was good ; for " though a Rent cannot be created " without Deed, yet by the Words of 4 3 Eliz^. it may " be appointed without Deed, and though the Nun- " cupative Will be void as a IViU, it is good as an Jp^ " pointment" ; and it feems that the Statute of 4 5 JB//^. which makes thefe Appointments to Charities good, being fubfequent to the Statute of 3 2 H. 8. of Wills, fuperfedes and repeals that Statute ; but it is true, that the Statute of Frauds and Perjuries, being fubfequent to the Statute of 43 Eli^. does repeal that Statute, and therefore, fince the Statute of Frauds, is'c. an Ap-* pointment of Lands to a Charity, by a Will not at- tefted by three Witneffes, is void. Mi/es verfus PVilliams ^ Ux\ ^-^'^^ O/' J\jlLES brought Debt -uerfus Baron and Feme, upon S'di^court a Bond entered into by the Feme dum fold. The De* of.B.i?.that fendants jointly plead in Bar, ^lod querens a^ion non, tii'eAVife'*° i5^c. and fay, that after the Intermarriage, (fcil.) in Sep- ^'"« fiia, temb. anno 5 Ann^c, Williams the Hufhand became a Bank- bv^i^e'^'*'^'^ rupt infra intention feparal' Statut' contra DecoSlor edit' iff Bankruptcy provif, and that ^ Commiffion fupr feparaf flatui dcco6ior Hufbanj, ifllied under the Great Seal, bearing Date tali die, and ?"'! ^''^^ directed to M. K. and T. A. iffc. artervvards, {Jcil.) to the Wife tali die, the faid Williams voluntarily furrendered him- f^mi'^h"* felf to the major Part of the CommilTioners, and from unreco- Time to Time fubmitted himfelf to be examined upon I" alfiena- Oath by the faid Commiffioners, <^ in omnibus fe con- b'e by the formavit ad fiatiii ^Ann^, intitulat\ An A£1 to prevent ncToTi'the" Frauds frequently committed by Bankrupts, <^ ad om- Huiband's nia at Statut' contra decolor edit\ isf fie idem Johannes cy, p^^ ^ Eleonora, vigore fiat' prxdiSl' in pr^diSi' Parliament' ^""- \'^"''' diSi' Dom' Regin^ nunc edit\ dicunt, quod caufa aSlion and ti/at the pr^diSl' accrevit pr^efai Miles, antequam idem Johannes j^j]^'^ ]JP^" W^illiams devenit deco6lor ; iff hoc parai funt rerificare ', muft con- mde pet' jud' fi pr.tdid' Miles aaion, tfc. totuv^' S f f The 2^0 De Term. S. Trin. 17 14. The Plaintiff demurred, and fliewed for Canfe, that the Debt arifmg upon a Bond made by the Wife, dum fo!a, was not difcharged by the Statute mentioned in the Defendants Plea ; and alfo that the plea ought to have concluded to the Country. The Defendants joined in Demurrer. And after feveral Arguments in this Cafe, Parker, C. J. having ftated the Record at large, deliv^ered the Refolution of the Court. The two great Qiieftions, which have been made in this Cafe, are thefe ', ifi, Whether this, being a Debt on a Bond given by the Wife, dum fola, be fuch a Debt, as ilia 11 be difcharged by the Bankruptcy of the Hufband by Vir- tue of the Statute of 4 ^««<^, cap. 17. mentioned in the Plea? idly, Whether the Defendants have well concluded their Plea, or not, it being to the Judgment of the Court, and not to the Country ? As to the firji, we are all of Opinion, that it is a Debt within the Ait. The Words of the Claufe, upon which it depends, (a) Sea 7. are, " (a) that the Bankrupt (hall be difcharged from all " Debts by him due and owing at the Time he be- came Bankrupt; and then, in Cafe he be fued for any fuch Debt, the A61 direds, that he fhall and may plead in general, that the Caufe of A£lion did accrue before he became Bankrupt." 4 Upon (C De Term. S. Trin. 17 14. 2.'>i Upon thefe Words, the immediate Qiieftion is, whe- ther this was a Debt due and owing by the Husband, at the Time he became Bankrupt ? It was faid, and (I think) admitted at the Bar, that a Debt due hy the Wife, and one due to the Wife, dim Jola, muft fall under the fame Conlideration. This is very reafonable, and therefore I have con- Debts due to fidered how far a Debt due to the Wife would be with- confidcrcd. in this Adi to be ailigned by the Commlllioners of Bankruptcy ? and in order to underftand this, it is ne- celTary to go back to the former A61s, 1 3 Eli^. cap. 7. ena£ls, That the CommilTioners {hall take Order with the Bankrupt's Body, Lands and Tenements, (as well Freehold as Copyhold,) Goods, Chattels, Debts, isfc. and fell the fame, tJ'c. Then comes the Statute of i Jac. i. cap. 15. which, reciting that the Authority given to the Commiflioners by the former Aft was not full and perfeft, for fur- ther Remedy, gives them (a) " Power to grant and af- («) Sea. 12. " fign all Debts due, or to be due to and for the Be- " nefit of the Bankrupt, and the fame to be reco- " vered in the Name of the Airignees." Now I take the Intention of thefe Laws to have intention of been, that the Bankrupt having been guilty of a Fraud, ^gail'.If '''*'' fhould not be trufted any more \vith the Management of Bankrupts. his Eftate ; but that it lliould be put into other Hands, for the Safety of his Creditors, and that the Bankrupt fliould have no further Intermeddling therewith. So that upon this Intention, all thofe Eftecils, and Debts, which he could takd in, or turn into Mo- ney, 2^1 De Term. S. Trin. 17 14. ney, the Allignees were defigned to have, in as full a Manner, either by Aftion, or otherwife, and that in their own Name. The Rule of rpj^^ ^^s^ R^^}g ^f conftruin^ Afts of Parliament is Common i i i ^^ r i • i i Law to guide by the Common Law, and by the Courie which that inConiir«c- oj^fej-ved in like Cafes of its own, before the Aft. tion of Sta- tutes. Thus it is upon the Statute Tie donis, which ena6ls, that Tenant in Tail non habeat potefiatem alienandi tene- menta, to prevent their coming to the lilue ; and that a Fine levied by him, ipfo jure fit nuOus. Now, The EfFe6l of this Statute being a Difability to alien to the Prejudice of others ; therefore the Law ranks the Perfon incapacitated thereby, with Bilhops and other Eccleliaftical Perfons, and with Husbands, who were by the Common Law difabled to alien to the Prejudice of their Succeifors and Wives. And therefore, tho' the Words be. That Tenant in Tail lliall not have Power to alien, and that his Fine Ihali be void, yet it has been conftrued, that a Fine by Tenant in Tail, is not meerly void, but makes a Difcontinnance, thereby putting the Ilfue to his For- medon; and that other Alienations, either put the IfTue to his A£lion, or allow of his Entry, juit as the Law ftood before, in Relation to Bilhops, i^fc. At Common Law, it is a general Rule, that no Body can have an Aftion but the Creditor, or, if he be dead, his Repreientative ; but there are two Cafes ChofeinAc- wherein this Rule fails, (f/^.) in the Cafe of a Forfei- tion may be ixxxt and of an Alfi^nmcnt to the Kins ; for tho' a Chofe afliffiied to ^ ^ ^ ■'. the King, in ABlon cannot be aihgned to a common Perfon, yet it hil'^GranTee ^^^^^ ^^ ^^^^ Kin^ 'j and in both thefe Cafes, the King, may have an Action for it in their own Name. 1 or De Term. S. Trin. 1714. Z<>3 or his Grantee or Affignee, may fue for thofe Debts in their own Name. 21 i/. 7. 19. Though, generally, the Grantee ibed in the King's Name ; but that was only in order to take Advantage of the Prerogative. Now let us fee how far the Wife's Debts were liable in thefe Cafes : In the Cafe of Forfeiture, as by Utlawry, ^c. the Debts of the Wife were always extended and feifed. In the Cafe of AiTignment of Debts to the King, Uob. Debts^dueto 253. is an Authority in Point, and that notwithftand- ^^ly,/],,for- ing the 7 Jac. i. cap. i 5. which makes Aflignments of f'^'^'^'^' ^'^'^ Debts void, other than fuch as grew due originally Jh?K^ngby to the King's Debtor Bom fide \ for the Purpofe of that theHusband. Law was, that no Debtor of the King (hould procure another Man's Debt to be afligned, which was the com- mon Pra£lice ; but this, fays the Book, is his own Debt, tho' not to his own Ufe^ which he may himfelf releafe and difcharge \ and by the fame Reafon, may affign* This proves two Things f i)?, That the Husband might affign thefe Debts by the Common Law. idly^ That he was not reftrained frorn doing it by the Statute, becaufe they were thfe Husband's own Debts. This Reafon concludes to the Cafe at Bar. ly?. As it is the Husband's own Debt within the Words of the A(S. T t t idly, 2^4 ^^ Term. S. Trin. 17 14. idly. That as the Husband might affign It, ergo fo may the Commillioners. Befides, it is to no Manner of Purpofe, and can ferve no good End at all, to fay, that fuch Debts are not allignable ; for if they Ihould be left in the Hiif- band, as foon as ever he recovers them, the Commif- iioners muft have the Money, and apply it to the Ufe of the Creditors. But in order to confine the Senfe of the Words " Debts due and owing to him", it has been OhjeEled, ifl, That the Statute does not extend to Debts due to a Bankrupt as Executor. Eefp. This is true ; but it is for this particular Rea- fon, becaufe they are appropriated to pay the Debts of the Tel1:ator, and if they were ailigned, it would be a Wrong, {vii^.) a Devaflavit. idly, It has been obje£led, that the Statute does not extend to Debts due to the Bankrupt jointly with an- other. Refp. The Cafe cited for that Purpofe from i Lev. 17. is not determined; inch Debt might be ailigned to the King, by any one of the Creditors ; and fo it is adjudged Mich. 19 J/. 6. 47. and it would be for- feited by the Utlawry ot one. Mowever, that Cafe is not before us : Thus far is plain, that a Debt due from him and another, would be within this Aft of 4 Ann^ ; for it is fo declared by (a) Cap. 15. the declaratory AcB: of (^7) 10 Ann^^ whii^h provides, at feci. -i. I ^ I the De Term. S. Trin. 171 4. 29^ the fame Time, that the Difcharge of the Bankrupt fhall not extend to difcharge the other joint Debtor. But this of a Husband and Wife is a different Cafe; for it is his Debt, as he is one with her. But it is contended, that the Bankruptcy ought not to give the Hufband a better Ripht in his Wife's Debt, and bar her of her Contingency of Survivoriliip. Refp. It does not give him a better Right ; for his Releafe for a Confideration to himielf alone, woukl have barred her of the Contingency ; and this is a Re- leafe in Law, and amounts to the fame Thing. Befides, this is anfwered by the Fi61:ion of L-aw, whereby the Statute of i Jac. cap. i ^. and this Statute have made it as a Debt, and a new Security to the Aflignees. Suppofe a Bond were made to A. in Trull for B. who becomes a Bankrupt, the Affignees may bring the A£lion in their own Name, tho' B. mult have brought it in the Name of his Truftee. ObjeBed, The Hufband mufl join with the Wife In this Action ; but the Affignees cannot do it. Rcfp. This is anfwered (as before^ and by the Cafes of Forfeiture, and Affignment to the King. But to put another Cafe ; Suppofe a Bill of Exchange be made to the Wife, dum fola', the Hufband may affign it, and the Allignee fliall bring the A£lion in his own Name. This Reafoning holds ftronger in the Cafe of Debts i^^btsdue due from the Wife 3 for, wifecon- ficlereJ. z^6 De Term. S Trin. 17 14 ifl, Certainly it is the Hufband's Debt, and the Aftion muft be brought in the Debet and Detinet ; it is admitted to be the Hufband's Debt, after Judgment, an4 it were hard to fay, that a Judgment of Law charges a Man with a Debt, who wsls not chargeable with it, when that Judgment was given againll him. idly, If the Intent of the Aft be confidered, and the Qiieftion asked Cui bono? it will appear ftill Wronger. The Perfons concerned in this Matter are, ifl, The Bankrupt. idly, The Creditors. idly, The Wife. As to the Bankrupt ; if an A£lion be brought again fl: him on fuch Bond, what Execution can the Plaintiff have ? If he takes a Fi' Fa or Elegit, as foon as he finds Goods or Lands, the Commilli oners ought to feife them ; this would be wholly ineffectual ; and if he takes a Capias^ it will only lerve to lay the Bank- rupt up in Prifon, when all his E^ate, wherewith he Ihould make Satisfa6lion and deliver himielf, is taken out of his Power ; and that is the Reafon of his bein^ difcharged, (vi'z^) becaufe his Ability to pay is intirely taken from him. And this diftinguiflies it from the Cafe of an Exe- cutor, and fhews, that he ought not to be difcharged as to the Teflator's Debts, for he retains his Ability to pay them, by keeping the EtFefts which he has as Ex- ecutor, and the Commiflioners cannot meddle with them, becaufe they are appropriated. I It De Term. S. Trin. 17 14. 197 It was infilled at the Bar, that he ought to be dlf- charged from all his Debts, becaufe he is obliged to part with all his Ellate liable to pay thofe Debts ; but this takes it up much too Ihort ; for he is not only ob- liged to deliver up all his Eftate liable to pay Debts, but all whatfoever wherewith he might pay his Debts ; as for the Purpofe, Copyhold Lands, which are liable to no Execution. idly^ As to the Creditor. It cannot be for his Benefit, that this Debt ihould not be within the A£1; for the Bankrupt's whole E- ftate will be otherwife difpofed of; and his A£lion againft the Bankrupt can be worth nothing ; but if this Debt be within the A£1, then may he come in for his Dividend. The Confequence of the contrary Opinion is, that you take from him every Thing wherewith his Debt may be paid, and at the fame Time will not let him in for a Share. 3^/v, As to the Wife. It will be a Difcharge to her, at leafl a temporary ^"'f^ 's foi" one, (f/;^.) during the Hufband's Life j but tho' it be ged by the * not neceflary to give any Opinion upon that, yet I ^''^^^T '^^ think It will amount to a perfeft Releafe, and the rupt Huf- Wife will be difcharged for ever. ''^'*- But no Harm can arife from this ; for the Creditor IS fuppofed to have had his Dividend, and the Debt is paid, in Coniideration of Law* U u u ' A Cafe 2^8 De Term. S. Trin. 17 14. A Cafe may poflTibly be put, where a Woman being in Debt, may make over all her EfFecls in Trull, and then marry a Bankrupt, and by that difcharge all her Debts, and yet preferve her Eftate ; but that would be a fraudulent Conveyance, as againft Creditors, quoad fo much of the Eftate as would fatisfy their Debts, and for that they might have Remedy. Objeaion. It was obje£led, that this Difcharge is a perfonal Privilege, and not communicable to the Wife. Husband ^4p' ^^ '^^ ^ ncceftary Confequence, that it muft poJTeffedofa exteud to her; becaufe every Thing In the Hufband's YeaS:Vw^ Power is affignable, and all her Eftate is in his Power: uxor', \tm:iy If the Huibaud be pofteffed of a Term for Years in be fold on a j^.^^^^ ^^ j^j^ ^^j^^^ -j. ^^^ ^^ ^^y ^^ ^ p. ^^>^ ^^^ (a) iinft. yet It Is uot (a) a^luallv transferred to the Husband by 46. b. 299, •', r • 300. the Intermarriage. - .,f For thefe Reafons, we are all of Opinion, that this Is the Hufband's Debt within the Meaning of the Statute. Second Que- As to the fecond Queftion, (vk.) whether the Plea ftion. Plea , . -, ^ ' ought to be good or not ? conclude to We are likewl'fe all of Oplniort, that it is ill not to conclude to the Coimtry. A Liberty *of Pleading generally Is given to the Bankrupt, and fo he may avoid the Hazard of pleading Jpecially; but then he muft take upon him the Prool" of his Conformity to the Statute, in every Particular ; or if he thinks fit to plead the Matter fpecially, then he muft fet forth every Point ; and by it, he has this Advantage againft the Plaintiff, that he muft reply one Particular only, upon which Ifl'ue muft be taken. Here I the De Term. S. Tr'tn. 17 14. 2^:9 the Defendant has pleaded the Matter fpeclally, but not fet forth thd whole, and therefore it Is ill for that Rea- fon ; for by the exprefs Words of the A61, this is to be pleaded io, as that the whole Merits may be tried. There are feveral Cafes at Common Law, where a ^^'"" ^^ Man iliall conclude his Plea to the Country, tho' there Lawl^vvkre be no Affirmative and Negative, to prevent the Incon- -i -^i''" m^'rt I I I • r I • r. 1 • conclude to venience that would arile by going on to a Replica- ihc Country tion ; as in 3 3 H 6. 2 ; . to a Fine ^lod, partes jinis ni- AfHrm^ T hil habuerimt j ^ de hoc ponit fefuper Patriam. and Ntga- tiye. So in a Counterplea of a Voucher, That he was ne- ver feifed of fuch Eftate whereof he could infeoff him j i5f hoc petit, i^c. So in Dower Nimqti [eijie de dower ; tf de hoc, iffd And the Reafon of this is, for that it would be in- convenient to go on to a Replication; becaufe to reply generally, would leave it too large and comprehenfive ; and to reply any particular Kind of Eftate, would be too narrow, and confequently immaterial. This Statute has formed a new general liTue in this This Statute Cafe ; and this was the Foimdation of the Judgment f^^'^^generlf in Bird and Lacys Cafe, Mich. 6 Ann^, C. B. Rot. 321. 1'^'^er that a Plea upon this A£1 was well concluded to the Country ; and if fo, it cannot conclude to the Court. It may be obferved on the Statute of Sewers, (23 H. 8. cap. 5.) that by the Words of that a61, a ge^ neral Replication is expreily given, to avoid the forcing the Plaintiff to a fmgle Point, and fo the Mifchief, which would be in this Cafe, is prevented. Thus it muft have been in this a61, if it had not been the \n* tention of it to make the Plea a' general Iffue, For i6o De Term. S, Tr'in. 17 14. For this Fault in the Plea, which is fliewn for Caufe of Demurrer, and which would put a Difficulty on the Plaintiff, not intended by the Statute, Judgment mull be given for the Plaintiff. Cafe 58. Ex parte Mackernefs. On Petition. At Lord yS. a Weaver, fold to Mackernefs, a Mercer, fome Silk ^moi, Lu ' for 103 /. and at the fame Time took two Notes whom 103/. fj-Qj^ Mackernefs for Payment thereof, ( fcil.) one Note //.by two for 50 /. payable at a Day lince paft, and another ^T Pan'^ Note for 53/. at a Day yet to come. thereof not yet payable, before the 5th of Geo. 2. fues out a Commiflion of Bankruptcy ; fuch Commiflion fct alidc as irregular. And before the laff Day of Payment incurred, jf. S. took out a Commiflion of Bankruptcy againft Macker- nefs, who was really a Bankrupt, but petitioned to fet this Commiflion aflde as irregularly taken our, it being {aj Vide poll j-3]^en out at the Angle Petition of J. S. to whom (a) jumes. only 50/. and not 103./. was then due; and the Sta- tute 5 Anns, cap. zi. requires, that if a Angle Creditor fues out a Commiflion, a Debt of 100/. mufl: be due to him ; if two Creditors fue it out, there muft be 1 50/. due to them; if three or more, there muft be 200/. or more due to them. Whereupon Lord Chancellor fuperfeded the Com* miflion, faying, that in a late Cafe the Lord C. J. Parker was of the fame Opinion ; and that Lord Trevor, dif- I courfing See the Statute of 7 Geo. i. cap. 31. whereby fuch Creditors by Note or Bond, payable at a future Day, are admitted to prove their Notes, £ff(r. and are intided to a proportionable Part of the Bankrupt's Eftate ; tho' they muft not join in fuing forth the Commiflion till i'uch their Debts become payable. However, by the 5th of his prcfent Majefty, Perfons having Bills, Bonds or Notes, payable at a future Day, may join in petitioning for Commiflions. De Term, S. Trin. 17 14. 261 courling with the Lord C. J. Varkcr and himfelf in the Houfe of Lords, feemed to concur in fuch Opinion likewife : But the Court denied to aflign the Bond, the Commillion not appearing to be taken out mulici- oujiy or fauduUmlyy which are the (a) Words of the KSl. i") ^^- 7- Tucker verfus Wilfon, Adminlflrator of^^^^ 59 Thynn. Lord Chan- cellor Har- court. /^NE poiTeffed of an Exchequel- Annuity for ninety- Exchequer ^~^ nine Years, borrowed Money upon it, and for Annuities lecuring this Money, there was an abloiute Transfer or may be fold the Annuity, but with a Defeazance, that if the Mo- ".p°" ^\ ney were paid at fuch a Day, the Alfignment mould out a Fore- be void. '^°^"^" The Money Was not paid at the Day ; upon which the Lender frequently defired the Money, and gave Notice that he would fell, and appointing a Time for that Purpofe defired the Borrower to be prefent to fee that the Annuity was fold at the full Value.^ The Borrower, by Letter, defired that the Lender would ftay a Week longer before he fold, which was alfo complied with; and then the Lender dying fud- denly, the Defendant, his Adminiftrator, fold the An- nuity at the Exchange, by a fworn Broker, for the full Value that thofe Annuities then fold for, and which was lefs than what the Money due to the Defendant amounted unto. Thefe Annuities afterwards rofe in Value; whereupon the Mortgagor brought a Bill to redeem, or to compel the Defendant to purchafe another Annuity on the fame Fund, and of the fame y-early Value, to be X X X transferred z6z De Term. S. Trin. 17 14. transferred to the Mortgagor, on his Payment of Prin- cipal and Intereft. Lord Chancellor : Here is no exprefs Power to fell ; and Annuities for ninety-nine Years are like Rent- charges out of Lands, and not like Stocks, which may be thought to be of imaginary Value ; and there be- ing no Decree for Forecloling the Mortgagor, nor any Agreement in Writing, that the Mortgagee lliould fell J let the Defendant procure an Annuity of the like Value, and upon the lame Fund, to be conveyed to the Plaintiff upon his Payment of the Principal and Inte- reft to the Defendant ; and let the Matter compute what is due for Principal and Intereft. From which Decree an Appeal was brought in the Houfe of Peers, where it was infifted, that thefe Ex- chequer Annuities, as well as Stocks, were ufually fold at the Exchange, and that this was but as a Pawn; and and tho' there was no exprefs Power to fell in the De- feafance, yet by the Mortgagor's Letter, it was plainly fubmitted to, when the Mortgagor delired the Sale might be deferred for a Week ; that the Convenience of thefe Securities, among Merchants, was, that after the Day of Payment paft, they were taken to be ready Money ; and that it would be infinitely trou* blelome, and dilatory, if there could be no Sale of fuch Annuities thus pledged, without a Decree of Foreclo- fure ; that this would fet alide feveral Sales that had been made in the like Cafes, and occafion Multiplicity of Suits ; that the Cafe here was the ftronger, it be- ing that of an Adminiftrator, who was obliged to dif- pofe of the Aftets of the Inteftate to pay his Debts and Legacies. / Wherefore the Decree was reverfed by the Lords Nemine contradicente. I Dones o De Term. S. Trin. 1 7 14. ^265 Dones . (^afe. cafe 60. Lord Chan- cellor Har- N an Application made to the Court for a Ne ^°""' exeat re^num, to ll:op the Defendant from going AN^el^ai to Scotland^ it was objected, that iince the Union, Scot- '''X«"w lies to land was Part of this Kingdom, and confequently, that go?ng"oS/! going to Scotland could not be conlfrued goin^ out 0/ ''^"'^' ^""'^ ^i- the Kingdom, nor any Breach of the Condition of the fendTnt i;i a^n Securrty given on fuch Writ. Accoiinta- ■' ° gainft a Go- • Defendant. Lord Chancellor : Scotland being out of tlie Jurifdldion of this Court, and confecjuently out of the Reach of the Proceis thereof, the Defendant's going into Scotland is equally mifchievous to the Suitor here, as if he went ailually out of the Kingdom ; wherefore take a Ne exeat regnim ; and tho', in this Cafe, the Party rrioving for the Writ be alto a Defendant, yet, forafmuch as it is a Matter of Account, in which (a) both Parties are Adlors, and Money being iworn due from the Party, ' • againlf whom the Writ is prayed, to the other, the Motion is proper. How tlie Note ', Where the Party is to be reftrained from go- Co„d ition jng to Scotland, the Condition muft be, not to go °^ t'l'^ R"^- out of the Realm, or to Scotland ; for if it be only, not L fu'df cTfe to go out of the Realm, the Parties going to Scotland "^"^ ^ will not forfeit the Bond or Recognizance^ (a) Vide Preced. in Chan. 197. For which Reafon aJfo, after a Decree to account, and Abatement of the Suit by the Defendant's Death, his Reprefentative may revive. DE z64 D E Term. S. Michaelis^ 1 7 14. vern 68 1-1^5 BAND felfcd In Right of his Wife, borrows ndeetiam ^ $00 1. In ordcr to fupply his Occafions, partlcu- ^*^« ^^- Tate verfus An ft in. Lord Chan- *' cellar Cow- per. 2V( Vide ^°1-uf ftf ^ larly to buy himfelf a Commlllion in the Army, and ton. for the Securing of this Money, he and his Wife levy Hufband a Fine of the Wife's Inheritance, and ralfe a Term of Money, 500 Years, which Is limited to the Perfon lending Hutond and fi^g 500/. to be voId upon the Payment of the 500/. Fine of the and Intcreft, with Remainder to the Ufe of the Wife Wife's Land jj-j p^g ^^^ jj^ j.|^g Deed the Husband covenants to as a Mort- ' gage for it, pay the Mortgage-Money. and Flufoand bv Will cives Legacies to Ciiarities to the Amount of his perfonal Eftate, and dies ; the Mort- gage fhall be paid out of his perfonal Aflets, tho' the charitable Legacies will be thereby loft ; but all the Hufband's Debts, tho' by Simple Contraft, fhall be preferred to the Mortgage. Afterwards the Hufband makes his Will, by which he gives feveral Charities out of his perfonal Eftate, and- dies Indebted by Simple Contrail. The Widow brings her Bill to have this Mortgage, made of her Inheritance, difcharged out of her Huf- band's perfonal Eftate. On the other Hand, 4 The De Term. S, Michaelis, 17 14. 269 The AfTets were not fufficlent to pay the Mortgage- Money, and alfo the Charities given by the Will. Lord Chancellor : This Mortgage is a Debt of the Huf- band, which muft be paid before Legacies ; and the Wife, by confenting to charge her Land with it, does not make it lefs his Debt than it was before ; the perfonal Eftate fhall be Hable to pay Debts, before Legacies, tho' to (a) a Charity, for they are ftill but Legacies ; but all other Debts of the Hufband fhall be preferred to this; every thing Ihall be taken favourably for the Wife, who, for the fupplying the Hufband's Occaiions, has agreed to charge her Land with a Debt of his. The Fine and Deed of Ufes, by which the Mortgage is created, are but as one Conveyance; fo that thefe Le- gacies, (tho' for a Charity) are to be left unpaid, fince It appears there are not Aflets of the Hufband to pay both the Mortgage and the Legacies. On this Occafion Lord Cliancellor put the Counfel in Mind of Lord (b) Huntington's Cafe, where Huitand () 2 Vcrn. feifed in Fee, in Right of his Wife, did with his Wife si/aifo the by Deed and Fine mortgage her Eftate for 500 Years, Cafe of p^- Remainder to the Ufe of the Wife in Fee. The Mort- ZiTvTm gage was to raife a Sum of Money for the Ufe of the ^°4- Hulband to buy him a Place, which accordingly he did buy, and thereby got Money, and paid off the Mort- gage, taking an Aflignment of it in Truft for himfelf, his Executors and Adminiftrators ; afterwards the Huf- band and Wife died, and the Heir of the Wife brought his Bill to exonerate the Inheritance, and to have this Mortgage paid off out of the Hufband's perfonal Eftate : / Y y y And (a) Vide poll Majiers verfus Majlers, & 'Attorney General verfus Hud- fon. Legacies to a Charity, on a Deficiency of Aflets, arc to abate in Preportion, as well as other pecuniary Legacies. z66 De Term. S. Michaelis, 17 14. And tho' it was decreed by Lord Keeper Wright, that the Heir of the Wife was not intitled to have the perfonal Eftate of the Hulband fo applied ; yet upon an Appeal to the Houfe of Lords, that Decree was reverfed, and the Mortgage decreed to be paid out of the Hufband's perfonal Aflets ; which Lord Corvper thought very juft. ^uod nota ; It being infilled upon, that it was a G/ft of fo much Money from the Wife to the Hufband, and therefore not to be refunded. C'^fe62. jy^ Co'far Child and 0- thers\ AJji^necs of a Com- mijfion of Bankruptcy ta- >Plaintiffs ; ken out aga'uijl Sir Ste- phen E-vanSy Thomas Frederick Efq; Defendant. Firft Bill to be anfwered R. Frederick brought his original Bill againft Sir before tie ^ ^ Stephen Evans and H^yter, as Partners, for an Ac- J.VriniTi his count, and Sir Stephen Evans and Hayter brought their Bill againft Crofs-BlU ag;ainft Mr. Frederick: but Frederick's Bill Taf- wiio put in t^^* niany Diiputes) being lettled to be prior, it was or- infLfHcient (Jered that that Ihould be firft anlwered ', upon which, and prefer Sir Stephen Evans and Hayter put in an Aniwer, which their Crofs- ^y^g reported infufficient ; then Sir Stephen Evans be- iiill againft i i i • n • i- A. B. be- comes a Bankrupt, and his Eliate is aihgned by the comes a CommifTioners to Sir C^far Child and others, who bring xsankrupt ; ... ^ "^ ..,.,, . , O his Affignees their Bill in Nature of an original Bill againit Mr. Fre- Bi'nfn nT- ^^''^''^ for this Account ; and jMr. Frederick pleading the tureof a Bill Statute of Limitations, his Plea was allowed. of Revivor againft J. they ftiall not go on till C. has anfwered A.'s Bill. 4 Afterwards De Term. S. Michaelis, 17 14. 267 Afterwards Sir C^far Child and others, the Affignees, bring their Bill in Nature of a Bill of Revivor, ground- ing it upon the former Bill brought by Sir Stephen Evans. And it was now^ moved by Mr. Frederick^ and fo or- dered by the Lord Chancellor, that Haper, who was a Co-PlaintifF with Sir Stephen in the former Bill, ihould anfwer Mr. Frederick's Bill, before Mr. Frederick ihould anfwer Sir C^Jars Bill ; in regard, Sir Cefars Bill, had it not been in the Nature of a Bill of Revivor of Sir Stephens original Bill, would have been barred by the Stature ; and then, if Sir C^far flood in the Place of Sir Stephen Evans and Hayter, he could not be in a better Condition; confequently, fince, if Sir Stephen had been alive and continued Plaintiff, Hayter^ as well as he, muft have firft anfwered Mr. Frederick's Bill, fo mufl Hayter do now ; and as one Way, (vi^.) (to get out of the Statute of Limitations,) Sir C^fm' had the Benejit of coming into Sir Stephens Place, fo niuft he fubmit to have the Dijadvantage of it the other Way. Anonymus. cafe 63. f^ N E Devifes all his Goods ; and whether a Debt Devife of all ^^ by Bond paiTed to the Devifee, w^as the """i? '^^^^ „ . •' ■"■ pallesaBond. Qi-ieltion. Decreed by Lord Chancellor .C^^w^^r, that It did; Civil Law that thefe Words feemed at Common Law to pafs a Manner^'of Bond, and to extend to all the perfonal Eftate ; but Eftates into this being in the Cafe of a Will, and a Will relating fj^rj'''" to a perlonal Eftate too, it ought to be conftrued ac- immobuia. cording to the Rules of the {a) Civil Law, (a) Ante 12, ' & port Plume verfub BcaU. Now 268 De Term. S. Michaelis, 17 14. Now the Civil Law makes Bona mobi/ia, and Bona mmobiliay the Membra dhidentia of all Eftates; Bona immobilia are Land, Bona mobilia are all Moveables, which mufl: extend to Bonds ; and therefore, by the Devife of all the Teftator's Goods, a Bond mull: pafs. Cafe 64. Floyer verfus La\)ington. One for 800/. Con- fideration grants a ONE grants a Rent-Charge in Fee o£ ^2 1. per Annum, upon Condition, that if the Grantor Ihall at any Time give Notice of his Intention to Rent- pay in the Confideration Money (being 800/.) by 48/.'^aYear Inftalments, vi^. 100 J. at the End of every fix in Fee, upon j^jonths, and fhall, purfuant to fuch Notice, pay the Condition, ' ^ n i ■ i r that if the laid Moncy and Intereit, at any Time during his Life- Grantor rp- j^ ^j^ Grant to bc void ; but there is no dunnw his ' . ' i.ifefhaii Covenant in the Deed from the Grantor of the Rent- fnTj^ri^' Charge to pay the Money, and the Rent-Charge was theSco/. much lefs than what the Intereft of the Money came ment's, l/z. to, (^o^ the Intercft was at that Time 8 per Cent, the 100/. at Conveyance being made above lixty Years lince,) and every fix the Grautce of the Rent-Charge had conveyed it over, ^°"^''^' after the C) Grantor's Death, to a Purchafor, to whom and ihall do , , , . n i • r • T-^ • this during hc had given a Collateral Security tor quiet Enjoyment, his own ^^^^ j-j^g Purchafor had afterwards made a Marriase Lite- time, \ r • the Grant Settlement of It, to be void } the Mortgage was made about fixty Years fince, when the legal Intereft of Money was 8 per Cent. Decreed not redeemable. And now, upon a Bill brought by the Heir of the Grantor, to redeem this Rent-Charge, the only Qiiefticn was whether it was redeemable. (*) ^£re when the Mortgagor died. I Sir Dc Term. S. Alicbae/is, 1714. 269 sir Jofeph 7ekyll for the Plaintiff. The Claufe re- J" ^afeofa A- • t r, t • , , -r r ^ ■» r Mortgage no raining the Redemption to the Lire oi the Mortgagor ciaufecan is of no Force ; for an Eftate once redeemable cannot ^""^"^ '^^ II- tquity or be rendered irredeemable by any Words or Agreement Redemption made at the fame Time ; for as the Borrower is com- t^mtonS" monly neceflitous, this would put it in the Power Mortgagor, of the Scrivener, to make Advantage of fuch Ne- the^Heirs^" ceflities, and would let in Oppreilion, and foreclofe Maje, or the Power and Jurifdiftion of this Court. of i)?s*Bodv. In 2 Cljan. Rep. 147. (a) Howard t^ Vx. verfus (_'')^^^Vern.^ Bonbam, the Claufe was, that if the Mortgagor, at wrfas B«n- any Time, during his Life, fhould pay the Money, ^'""■ the Alortgage lliould be void ; and in that Cafe there was no Covenant to pay any Intereft or Principal, and the Circumftances there, were miich ftronger than in the prefent Cafe, the Conveyance being to a Sifier, and frequent Declarations made by the Mortga- gor, that his Niece, who was his Brother's Daughter, and had brought the Bill to redeem, lliould not inherit the Eftate. However, it was in that Cafe admitted by Counfel on both Sides, and decreed, that a Power of Redemp- tion could not be barred by any Claufe or Agreement made at the fame Time with the Mortgage. So in 2 Chan. Rep. 147. (b) Howard verfus Harris, WiVcm: an Equity of Redemption was limited to the Grantor ^^' and the Heirs Male of his Body ;. yet it was decreed, that the Heir General of the Grantor fhould redeem ', and it is there particularly laid down as a Rule, that where the Conveyance is but a Mortgage, no Words or Claufe lliall prevail to bar the Grantor, his Heirs or AJJigns from redeeming j otherwife the Adl of a Scrivener Z Z Z' would Z70 De Term. S. Mich ae lis, 17 14. {a) Vid. 2 Vent. 340. would be too hard for the Power and ]urifdl6lion of the Court of Chancery. Mortgage of Then as to the Length of Time, this Cafe differed defmabk at ftom the Cafe of Lands, where the Profits and Out- a greater goings being Uncertain, the allowing a Stale Re- TimeTthL dempcion, would, (probably) put a Difficulty upon the a Mortgage Mortgagee in his Accounting : But in the Cafe of a of Lands. o & , t, • ^ ^ r^ Rent-Charge, the Revenue was certain, and the Out- goings (if any) certain alfo. But what he chiefly relied upon, was, that as the Sta-^ tute of Limitations, had, in the Cafe of Lands, after twenty Years Pofleffion, barred the Plaintiff of his Entry or Eje£lment, fo the Court of {a) Equity, in Imitation of that Law, would not allow the Mortgagor to redeem the Mortgage, after the Mortgagee had been twenty Years In Pofleffion ; and that the fame Length of Time fhould bar a Redemption in Equity, as barred an Entry at Law. But that at Law, in Cafe of a Rent-Charge, though that had not been paid, or demanded, for twenty Years, yet fuch Duty being created by Deed (as all Rent- Charges muft be) no Part of the Remedy was taken away j and he cited the Cafe of Lord Widdring" ton verfus Jennings, in Lord Harcourt's Time, where the Court took fuch a Difference betwixt a A4ortgage of a Rent-Charge, and of Land ; and in the former Cafe, after a very long Time, (I think eighty Years) allowed of a Redemption. Mortgage ^^ ^^ ^|^g Objeftlou, that here was no Covenant without for the Payment of the Principal or Intereft, he faid, Bond fo" the ^^^^^ ^^^^ "^^^ Material ; the fame not being neceffary for Mortgagor the making of a Mortgage, nor yet neceffary, that the to redeem. ^ . ^j^j^^ De Term. S. Michaelis, 17 14. 271 Right ftiould be mutual, (i;/^.) for the Mortgagee to compel the Payment, as well as for the Mortgagor to compel a Redemption ; flnce fuch Conveyance as in the prefent Cafe, though without any Covenant or Bond for the Payment of the Money, would yet be plainly a Mortgage. That when the Grantee of the Rent-Charge, did, af^ ter the Death of the Grantor, fell the Rent-Charge, and give a Collateral Security for the quiet Enjoy- ment of it againft the Heirs of the firll: Grantor, this manifefted it to be the Apprehenlion of the Parties themfelves, that it was a redeemable Eftate, and accepted as fuch, with a Counter-Security a- gainfl: it. And, that though a Mortgage were made never fo Mortgage; many Years lince, yet if the Mortgagor, and thofe J^erfo^w" claiming under him had continued to pay Intereft, is redcema- the Length of Time was, in fuch Cafe, no Obje£lion terdlhas" to the Right of Redemption. teen paid. Now in this Cafe, the Rent-Charge was the Jnte- left agreed on by the Parties, and the Payment of the Rent-Charge, the Payment of Intereft ; by which, the Obje£Hon of the Length of Time was wholly taken off. But, Lord Chancellor Corpper conceived the Rent-Charge to be not redeemable, at fo great a Diftance of Time, and that this Court had heretofore gone too far in permitting Redemptions. It was material, that at the Time of making the Mortgage, Intereft was at 8 /. per Cent, and there- fore the Rent-Charge of 48 /. a Year, being fo much lefs 272^ i)^ Term. S. Michaelis, 1714. lefs than the yearly Intereft of 800/. at 8 per Cent. (which came to 64/. a Year) the Payment of the Rent-Charge could not be taken to be the Payment of the Intereft. That here feveral Clrcumftances concurred, which, though each of them, iingly, might not be of Force to bar the Redemption, yet all of them, joined together, were ftrong enough to prevail over it. That the Mortgagee feemed to have allowed a Con- fideration for the purchafing the Equity of Redemp- tion after the Death of the Mortgagor : I ft. By taking the Rent-Charge at 48 /. per An- num. idly, By agreeing to take his Principal Money by Inftalments. ^dly, By leaving it at the Ele61ion only of the Mort- gagor, whether he would redeem or not; and there could be no Reafon given, why fuch a Contingent Right of Redemption might not, upon fair and rea- fonable Terms, be purchafed. That the Length of Time, where fo great, as in the prefent Cafe, was a good Bar of Redemption of a Rent-Charge as well as of Land ; that the Alienation, Purchafe, and Settlement of this Rent-Charge after the Death of the Mortgagor, being all without any Fraud, were of Weight ; as likewife, that the Mort- gagor was not bound to pay the Money by any Covenant ; that the Purchafe of this Rent-Charge did no ways, either create, or admit of a Right of Re- I demption, De Term. S. Michaelis, 17 14. 275 deinption, by taking the Security againfl a Re- demption, that being only a prudent Caution made uie of by the Purchalor, which the Seller, being fatisfied it would not hurt Himielf, might ad- vife him to. Wherefore the Court decreed, that the Bill for a Redemption Ihould be difmill'ed with the ufual Colts, it being only upon Bill and Anfwer. But it was thought that the Length of Time was the chief Ob- je6lion to the Redemption. ^> - • " I T 4 A D E J 1 ov/J v \> fl ."» -.l-t A. 00 7 I • I'l''^-'"^ .'liJtIii-J 274 D E Term. S. Hillaril, 1 7 14. afe 65. Perkins verfus Micklethviaite, One Devifes C\ N E Micklethrpaite, who was the Defendants Fa* M Children ^"^ ^^^^^ ^^^ '^° ^°"^ Ti6o>»4J and Jofeph, and alfo '. B. and ' two Daughters, and made his Will, Giving thereby "^d?ebc- ^500/. to his youngeft Son Jofeph, and 1000/. to fore twenty- cach of his two Daughters, and dire£led, that If any rgerthl"" of his three younger Children ftiould die before their Portion of Agc of twenty-one or Marriage, then the Portion of dy!ngtogo° hir"> or her, fo dying, fhould go over to the Survivors, totheSur- and gave his real Eftate to his eldeft Son charj^eable vivor ; one • i i r t-. • of the Chii- With theie Portions. drendiesin the Life-time of the Teftator j this is not a lapfed Legacy, but (hall go over to the furviving Children. One of the Daughters died within Age, and before Marriage ; Jojeph the younger Son died alfo within Age, , and before Marriage, In the Life-time of his Father ^ the Teftator. 4 The De Term. S, Hill. 17 14. 27 s* The Father lived to have another Son, whom he named jfofepb ; and afterwards wrote a Codicil at the Bottom of his "Will, by which he confirmed the Will, thereby taking Notice, that lince the laft, it had pleafed God to give him another Son, and gave a Le- gacy of 500 /. a-piece to his Son Jofeph, and liis fur- viving Daughter, over and above what he had given them by his faid Will. Upon this Caufe*s coming on firfl: before Lord Chancellor Harcoun, touching the Share of the de- ceafed Daughter's Portion, i;/^:. Whether, upon the Death of the Son Jojeph, the Share of the faid deceafed Daugh- ter, that was vefted in jfofeph, fhould furvive with Jojeph' s Portion? His Lordihip decreed it fhould not ; becaufe the Portion of the deceafed Daughter became vefted in dtftinB Shares In the furviving Children, and there were no Words for creating a Jointenancy of thefe Shares. [_^iere autem, for a Devife over to two or more, is a joint Devife of Courfe, unlefs there be Words to fever the Jointenancy.] But The other Points, being referved, were argued now before Lord Chancellor Cowper ; and whereas it was obje£led, that by the Death of Jofeph in the Life-time of the Teftator, his Father, the i 500 /. Portion given to him became a lapfed Legacy, and Ihould fink into' the Eftate : Lord Chancellor faid, it was improper to call this a ^l\^'^n%j lapfed Legacy, but it was a Portion given (a) over, verfus Lord and Ihould take EfFe£t ; that the making the Codicil ^"-f {f; ^"'* ' _ rj puft i\ or they v/as a Republication of the Will, and did amount to verfus a Sub- ^''""'^'- 27(5 De Term, S, Hill. 17 14. a Subftituting the fecond Jojeph in the Place of the firft ; as if the Teftator had made his Will anew, and had writ it over again, by which new Will the fecond Jofeph muft take ; and that the fixed Intention of the Teftator appeared to be, that Jojeph fhould have more than his Daughter; whereas, if the 1500/. Legacy Ihould be taken to be a lapfed Legacy, then the fur- viving Daushter Ihould have twice as much as Jojeph. DE 2-77 D E Term. S. Trinitatis^ 1 7 15. Finch &' at verfus Earl of Winchelfea. cc: ««. T H E Countefs Dowager of Winchelfea being IT"":^.. Jointrefs for her Life of the PremilTes, Re- bie ConH- mainder in Tail to the late Earl, Remainder over, toSJnvey Lands to 7. S. and afterwards confefles a Judgment to J. N. If the Confideration Money paid bv J. S. be any ways adequate to the Value of the Land, it binds the Land in Equity, and ftiaJl defeat the Judgment ; fecui of a Mortgage, or if the Confideration were inadequate. The late Earl entered into an Agreement with the Countefs, that in Cafe ftie would make to him a conditional Surrender of her Eftate for Life, in order to enable him to mortgage Part of the PremilTes, he would fettle the Refidue of the PremilTes, together with the Equity of Redemption, upon himfelf for Life, Remainder to his firit, ^c. Son, Remainders over, under which the Plaintiffs claimed. 4 B Thq 278 De Term, S. Trin. 1719. The Countefs Dowager accordingly makes her con- ditional Surrender ; and the late Earl fuffered a Re- covery, and made the Mortgage, and afterwards died, without ever fettling the Premifles purfuant to his Agreement, being indebted at his Death by Bond and Judgment ; and this Agreement was not in Writing, but was acknowledged by feveral Letters under the late Earl's Hand. The Perfons, on whom thefe Remainders were to be fettled, brought their Bill to have this Agreement (*; Trin. executed, and had a Decree {a) for an Execution ''^' thereof before Lord Chancellor Harcourt, which De- cree was affirmed by the Houfe of Lords. And now the Qiiellion before Lord Chancellor Corrper, was, Whether the Judgment Creditors of the late Lord Winchelfea fhould be paid their Judgments, being puifne to the Agreement. Truftee por the Plaintiffs it was objeded, that from the judgm'cnt, Time that the late Earl entered into this Agreement, this will not i^ being an Agreement made upon a valuable Confide- Eftate. ration, he [the late Earl] was but a Truftee for the Ufes in the Settlement fo agreed to be made as afore- faid ; and if a Truftee confeiTed a Judgment or Statute, though at Law, thefe were Liens upon the Eftate, yet, in Equity, they would not affeft it; becaufe the Eftate, in Equity, would not belong to the Truftee, but to the Ceflmque Truji. >^. Articles That if onc articled to buy an Eftate, and paid his tofeii anE- pyj.j.|-j^{-g ]v[oney, and afterwards the Perfon, who ftatetofi.for r ii i i i i -r i a fall Con- agrccd to leil, acknowledged a Judgment ot Statute to fideration, and receives the Money, but before the Purchafe gives a Judgment ; this will not bind the Eltate ; /ecus if he makes a Mortgage to one who has no Notice. 4 a third De Term, S, Trin. 17 19. 279 a third Perfon, who had no Notice, yet this Judgment fhould not, in Equity, afl:e6l the Eftate ; becaufe from the Time of the Articles, and Payment of the Money, the Perfon agreeing to fell would be only a Truftee for the intended Purchafor ; which was admitted, and affirmed by the Lord Chancellor. It was granted, That if in this Cafe Lord Wmchel" fea, or any other Perfon that had been a Truftee in Poffeflion, had made a Mortgage of the Premiftes for a valuable Confideration, and without Notice^ luch Mort- gagee, in regard he might have pleaded his Mortgage, and would have been as a Purchafor without Notice, fhould have held Place againft the intended Purcha- for, or Cefluique Trufl ; for there the Money would have been lent upon the Title and Credit of the Land, and have attached upon the (a) Land j which would ('') vide pod not be fo in the Cafe of a Judgment Creditor, who DucZ/s^c/-''^ (for ought appeared) might have taken out Execution ^'"■^i">- againft the Perfon, or Goods of the Party that gave '^'"'^'" the Judgment ; and a Judgment is only a general Secu- rity, not a fpecifick Lien upon the Land. Alfo it was urged, that as the Agreement bound the late Earl, fo it fliould bind all claiming under him; confequently the Judgment Creditors of the late Earl could have no better Title than he himfelf had* For which Purpofe Mr. Vernon cited the Cafe of * ^- conveys Burgh verfus Francis^ decreed by Lord Keeper Bridgman, rconvey- ^^ and affirmed by Lord Chanc*ellor Nottingham, where ^"'^*' ^'!'«='^ there was a defe£llve Mortgage in Fee for 500/. it be- (Wz.) for * ing made by way of Feoffment without Livery, and af- ^^^"' ?( ^'' ter this, the Mortgagor confelfed a Judgment to a third and^ after Perfon 5 neverthelefs tlie Eftate being in Equity fpe- f^^^^J. cihcally this win not ■' aftca the * Firft heard by Lx)rd Keeper Bridgman., and reheard by Lord Eft*te- Keeper F/wi', Mich. 2^ Car. 2. 1673. iSo De Term. -X Trin. 17 1^*. cifically bound by the Mortgage, it was decreed, that the Mortgage Ihould be preferred to the Judgment, tho' at Law, the former being in Striflnefs void, the Judgment Creditor would have taken place. (a) 2 Vern. So in the Cafc of Taylor verfus Wheeler {a), decreed ^ '*■ by Lord Keeper Cowper, 1 1 Nov. 1706. One feifed in Fee of a Copyhold made a Mortgage thereof to J. S. but the Surrender was not prefented at the next Courts by Means whereof it became in Law void ; and afterwards the Copyholder, [the Mortgagor,] who had all along con- tinued in PoiTeflion, became a Bankrupt; and tho', on a Difpute between the Mortgagee and Creditors, it was obje£led, that it was the Mortgagee's own Fault, that he did not procure the Surrender to be prefented, and that this was, (probably,) with an ill Intent, (vi^i.) to wrong the Lord of his Fine ; that the Copyholder being in PoiTellion, and the vifible Owner of the Eftate, this might, and in all Likelyhood did, induce his Credi- tors to truft him, as thinking his Eilate would be liable -/. furren- to their Debts ; that it was reafonable that all the hold b^wlv Creditors of the Bankrupt fhould come in equally, and of Sale or ' fhc Mortgagee only for his Proportion, his Mortgage but'thefur- being void at Law, and confequently liable to the render not Bankruptcy, and that Equality was the higheft Equi-" and!//be- ty : Yet it was decreed, on great Deliberation, that this comes a Mortgage, tho' void at Law, was, notwithftanding, an this ui!i bind equitable Lien upon the Copyhold Eftate, and Ihould ^"Jl^^''^'" be made good in Equity, and bind the Ailignees of the CommilTion of Bankruptcy, and all the Creditors. On the other Side it was infifted, that Creditors were the Favourites of all Courts of Law, and much more in Equity ; that fince thefe Creditors now before the Court, had a Remedy at Law for their Debts, it would be in- verting the proper Bulinefs of a Court of Equity, to defeat them of, inftead of helping them to, their juft I Debts, De Term. S. Trin. 17 19. z8i Debts, which, without the Interpoiitlon of Equity, they would recover. That in the late Rarl of Pembroke's Cafe, upon his Marriage with the [now] Countefs Dowager, it was agreed, fhe fhould have a Rent of i 500/. per An- num Jointure ; and the Method advifed by Counfel for fecuring it, was, by Demife and Redemlfe, (vi^.) The late Earl demiied his Manors and Lands in Glamorfan- /hire to the Countefs's lYuftees for ninety-nine Years, who redemifed the Premifles to the late Earl for ninety- eight Years, referving 1500/. per Annum during the Countefs's Life, to commence after the late Earl's Death, the Lands being of about double that Value ; after which the late Earl of Pembroke died greatly indebted by Simple Contrail; and tho' it was objeiled, that this Term of ninety-eight Years, being redemifed to the late Earl as a Method only propofed by Counfel to ferve a particular End, ought, fuch End being fen-ed, to attend the Inheritance ; and tho' it was (a) once fo (^) 2 Ve^n, decreed in Lord Chancellor Jeffereys Time, yet that ^^' Decree was afterwards (b) reveried, and the Reverfal ac- (b) aVern, quiefced under by the Heir of the late Lord Pembroke; ^'3- for it being legal Affets, Equity fhall never take from a Creditor, what, at Law, he is intitled to* That the Creditors were now in Nature of Defen^ dants, they coming in before the Matter, and confent* ing to be bound by the Decree of the Court ; and the Plaintiffs were afting the Court to take away the Be- nefit of the Law from honeft and juft Creditors. That this Cafe was not like that of a Truftee out of Po(JeJJlon ; for the late Earl, who contradled thefe Debts by Judgment, was in Poffejfion ; and as he was feifed of the legal Eilate in Fee, fo was he alto the -y/- fble, as well as the le^al Owner of the Eftate; and, 4 C upon 28l Dd Term. S. Trin. iii^. upon the Credit of this Eftate, might be fiippofcd to have been trufted for this Money ; and the Judgment Creditor might think himfelf fafe by Means of the Land, and lend upon that. That there was httle Difference betwixt a Mort- gage and a Judgment ; and yet it had been admitted, that if one articled to fell, and after received the Mo- ney, and then mortgaged, before he conveyed to the Purchafor, the Mortgagee lliould hold the Mortgage. It might be granted, that in the Cafe cited of a Man's making a defe£live Conveyance, and becoming Bankrupt, the Creditors fhould not avoid it, any more than the Bankrupt himfelf ; becaufe the Creditors cobfinxtdnl rtood iu the Bankrupt's Place, and (a) could do no J^'iiiarm, k n^ore than he could have done himfelf. Bofuile ver- fus Brander. But that, in the principal Cafe, the Plaintiffs claim- ing under this Agreement were in Fault, that they did not make frefli Suit, but delayed it nine Years ; where- as they ought to have come before for an Execution of this Agreement, which would (probably) have prevented thefe Creditors from lending their Money, or if they had taken a Security of the Premiffes pendente lite, it would not have availed them. Lord Chancellor Cowper : Articles made for a v^alua- ble Conlideration, and the Money paid, will, in Equi- ty, bind the Eftate, and prevail againft any Judgment Creditor, mefne betwixt the Articles and the Convey- ance ; but this muft be, where the Conlideration paid is lomewhat adequate to the Thing purchafed ; for if the Aloney paid is but a fmall Sum, in Refpe£l of the Value of the Land, this ihall not prevail over a mefne Judgment Creditor. 4 In De Term. S, Tnn. 17 1 9. 285 In the principal Cafe, the Confideratlon was not Adequate ; for the Countefs Dowager of Winchelfea, wich whom the Agreemt nt was made, parted with no Money, having only made a conditional Surrender, in order for a Common R coven ; befides, I know the Inducement with the l.ortS to jfflirm the Decree, was the Plaintiffs Propofal to pay the Debts by Judgment and Bond. And the Decree intended to provide that the Settle- ment fhould not prejudice the Creditors. For which Reafon, tho' that Claufe was left out in the Decree below, yet Unce the Conlideration is not adequate, it fhall not be fo far regarded in Equity, as to bar a Judgment Creditor, who has a legal Lien upon the Eftate. DE 284 D E Term. S. 1715 Cafe 6t. GUlct vcrfus ti^ray. One by Will A y[^^ ]^y \{^^ wJH leavcs his Grandaiighter an i^iVto his /~\ Annuity of 10/. per Annum for Life, and after- Gra'ndaugh- ^vaj-Js, bv a Codicll to lils Will, declares, that " If his tcr * but ir •* fhe marry " Grandaughtcr fhall marry with the good Liking of with the Ex- « j^jg Truftees, then fhe fliall have 150/. in lieu of ecutorsL-on- ^ ' , r tt fent, then a " the Annuity, and her Annuity to ceale. Portion ; (he marries, fans Confent, a Man worth nothing ; Hufband is not intitled to the Money, the ha- ving married with the Executors Confent being a Condition precedent to the Gift of the Portion. The Grandaughter afterwards marries one worth nothing, and without the Confent of any of the Truftees. Whereupon it was objeiled by Serjeant Hooper, that the Reftraint of Marriage was only in terrorem, and that the Grandaughter, notwithftanding her having married as above, ought to have the 150/. Portion. But the Lord Corvper decreed the contrary, faying, here was a Provifion made either Way, and where the 1 Proviiion De Term. S. Michac/is, I7i<7. 28^ ProviHon for the Child is in the Alternative, and there is a Condition precedent to the Gift of the Portion, (7;/^.) If JJ:>e marries with Conjcm, ilfc. and that is not performed, and the Child is Hill provided for, rho' not with the greater Portion, Equity, in that Cafe, does not relieve. V>a^ley verfus Tolferry. ^■^^^^'^- Reports of /^ Having a Sifter who had four Infant Children, qwity 103. does by Will devite 1 00 /. a-piece to theie Infant y, ame of Children, mentioning no Time of Payment, and makes i^mvUy vcr^ the Defendant Executor, and dies. ^^ '*^' Payment to tlie Father as Guaniian, of a Legacy given to a Child, ill ; tho' the Teftator by Parol on his Deatli-btd directed it. It was proved In the Caufe, that the Teftator, on his Death-bed, gave Dirc^ions, that the Executor /Ijould pay theje Legacies to the Father of the Infants^ that he might mprove the Money for their Benefit. Accordingly the Defendant the Executor a6lually paid thefe four Legacies to the Father. Several Years after, the youngeft Child coming of Age, there was an Account betwixt the Father and the youngeft Son, and it appeared the Father was indebted to this youngeft Son in 200/. (including the ico/. Le- gacy) and that the Son palled the Accounts, and ac- cepted his Father as Debtor for the fame, which was urged, as an Agreement to the antecedent Payment that had been made of this Legacy to the Father. Alfo after the faid youngeft Son came of Age, he never made any Demand aj^ainft the Defendant the 4 D Executor j z86 De Term. S. Michaelis, 17 19. Executor ; fo that there was an Acqulefcence for near fifteen Years. It happened afterwards, that the youngeft Son being a Bankrupt, the CommiiTioners made an Alhgnment of the Bankrupt's Effefts to the Plaintiff, in Truft for himfelf and the reft of the Creditors, and the Plaintiff thereupon brought a Bill againft the Defendant the Ex- ecutor for this 100/. Legacy, and had a Decree for the fame, in regard the Payment of the Legacy to the Father and Guardian was ill. And this Decree being made by Sir John Trevor Ma- fter of the Rolls, an Appeal was brought before Lord Chancellor Corvper, who affirmed the Decree ; tor that (as he faid) if the fame were reverfed, it might incou- rage Payments to Parents and Guardians, in Wrong of Infant Children ; but it was thought a ^ hard Cafe, and the Depoiit ordered to be divided. Day verfus Trig, Before Mr. J. Tracy in the Abfence of Lord Chan- Cafe 69. celior. Srhis'^Frle' r^-^^ devifed all his Freehold Houfes In Alderfgate- hoid Houfes ^-^ flreet^ London, to the Plaintiff and his Heirs, and mA. and -^ p^£|. ^j^^ I'eftator had no Freehold Houfes there, iiatn none , ' but Leafe- but had Lcafehold Houies there. hold Houfes there, die Leafehold fhall pafs. Secus in a Grant. I Decreed * The Teftator's having dircfted the Payment of the Legacy to be made to the Father of the Infant, makes the Decree carry with it a great Ap- pearance of Hardfliip ; for which Reafon, and becaufe this Particular is omitted in the Book referred to in the Margin, the Regifter's Book has been fearched, from whence it appears, that the Cafe is here rightly ftated, and that great Strefs was laid on this Circumftance in the Petition of Appeal. De Term. S. Micbaelis, 171 v 287 Decreed by Mr. J. Tracy, that tho' in a Grant of all one's Freehold Houfes, Leafehold Houfes could not pafs ; and that in the Cafe of a Will, had there been any Freehold Houfes to fatisfy the Will, the Leafehold Houfes {hould not have paifed ; yet the plain Intention of the Teftator in the principal Cafe being to pafs fome Houfes, and he having no Freehold Houfes there, the Word [Freehold] fhould rather be rejefted, than the Will be wholly void: And the Leafehold ihould pais; and that the Suit was proper in Equity, fince the Leafehold Houfes (being Chattels) could not pafs by the Will without the Alfent of the Executor, which Alfent he was compellable to give in Equity. Gofs verfus Tracey. ^^^'^ 70. Lord Chan- cellor Cow- /l By his Will had devifed his Land to his Mother per. in Fee, and the Mother was afterwards told by ^Vetn.eqg. J. S. that this Will would not be good, but ought to be guarded, (as he called it,) and that he would make another Will for the Teftator, which he would take Care Ihould be fufficiently guarded. Accordingly J. S. drew the Will ; which was fo drawn, that A. thereby gave the Land to his Mother for Life only, Remainder to J.S. in Fee. The Mother, on the Death of A. brought a Bill to eftablifh the firft Will, and examined the now Plaintiff as a Witnefs to prove the ill Praftices made ufe of by J.S. in obtaining the fecond Will; after which, and before the Hearing of the Caufe, the Mother died, having made her Will, and given a Rent-Charge with a Claufe of Diftrefs, out of the Eftate, to the Plain- tiff, and devifed the Lands fo charged to others ; and there 288 De Term. S. Michae/is, 171^, there were divers WitnefTes examined to prove A. the firft Teftator Non compos, when he made his fe- cond Will. Lord Chancellor : A Will, the' good at Law, may yet A Will of be fet afide in Equity lor {a) Fraud ; as I't A. fhould agree bc^gooTi ^^ g'^'^ -B" Bank-Bills to the Amount of looc/. in Con- Law, as be- federation that B. would make his Will, and thereby ecuted, and devife his Lands to A. and accordingly B. does make yet ill in E- {\,ch a Will, and A. gives B. the Bank-'Bills, but thofe Sbtamed by Bank-Bills proved to be forged ; this, tho' a good Will Frand. ^j- \^^^^r ^ i^^\\ nevcrthelcfs be avoided in Equity by the Teftator's Heir, for the Fraud. In like Manner, if A. had devlfed his Lands to his Mother in Fee, and afterwards J. S. the Defendant had told A. the Teftator, and not the Mother, (as in the principal Cafe,) that the Will was a void Will for want of its being well guarded ; and that he would make another Will for the Teftator, that Ihould be efFedually guarded ; and accordingly he had made another Will for the Teftator, whereby the Eftate had been devifed to the Mother for Life only^ the Remainder to J. S. (the Defendant) in Fee ; this would be a good Will la Law, if atrefted purfuant to the A61 of Parliament, but would be fet afide in Equity for the Fraud ; but as to the Evidence of the Teftator's being Non compos. that is intirely at Law, and to be tried there. Cufc where tlie Plaintiff Secondly, Upon offering the Depofitions of the himicif a Plaintiff to be read, it was objefted, that the Plain* ncl'^i^lr tiff"'s own Depofitions could not be read, forafmuch as where a he was a Party claimino; under the Will in Contro- Witnt-r. is ■' ^ examined who at that Time is difintercftcd, but afterwards becomes intcreftcd and Plaintiff in thcCaufc, his Depofitions Ihall be read. J verfy, I'a) Et vlJc in i Chan. Rep. (laft Edit.; 12, 66. Inftances of a Will oF J.ind being fet afide in Equity for Fraud. De Term. S. Michaelis, 171';'. 289 verfy, and fo could not be a Witnefs for the Will ; and Sir Jofeph Jekyll cited Tilly s, Cafe (4), where one was (") Saik. examined as a Witnefs, who at that Time was no ways concerned in Point of Intereft, but afterwards became intereiled, and at a Trial at Bar in this Cafe, the Judges of C. B. fent a Judge to the Court of B. R. for their Opinion in the Point, who held, that the Depo- fitlons could not be read ; for that the Witnefs himlelf was living, and he himfelf could not have been a Wit- nefs at that Time Fiva voce, becaufe he was then in- terefted. But Lord Chancellor, in the principal Cafe, becaufe the Witnefs was a good Witnefs, and difinterefted at the Time of the Depofition taken, and this being in the Nature of a Bill of Revivor, to have the Benefit of the Proceedings in which the Plaintiff was ex- amined, admitted {I?) the Plaintiff's own Depofitions to [ be read. '. After which, the Court dire£led an lifue in Middle fex, where the Will was made, (tho' the Lands lay in ShropJInre,) to try, whether the Will, by which the Lands in Fee were devifed to the Wife, was the laft Will of the Teltator A. Upon this Occafion Serjeant Hooper, obiter, put the following Cafe, as having happened in his Experience, vi^. J. S. was the furviving fubfcribing Witneis to a Survivlrg ' Bond, and afterwards the pbligee in the Bond made ^XsmSie 9^. S. the furvivine Witnefs, his Executor : in an A£lion Executor of ■' b ' the Obligee; in an Aftion brought by him on the Bond, Evidence fhall be admitted to prove the Plaintiff's Hand as a Proof of the Bond. 4 E brought (l>) See 2 Vern. 472. Callov^ verfus -Mime ; Wliere a Witnefs was ex- ; amined before the Hearing while flie was interefted, but after the Hear- i ing fhe releafed her Interelt, and was examined again before the Mailer, ' and her Depofitions before the Mailer were allowed to be read. ipo De Term. S. Mich ae lis, 17 IS*- brought by J. S. the Executor, upon this Bond, the Court allowed Evidence to prove the Plaintiff's Hand to the Bond, he being difabled himfelf to give Evi-^ dence, as much as if he was dead. Alfo in the principal Cafe it was declared, that a Grantee, when he appears to be a bare Truftee, is a good Evidence to prove the Execution of the Deed to himfelf. Cafe jx, Seale verfus Seale. Preced. in C^ N E devifcd that all his Money in the Govern- Chan. 421. v_/ meut-Funds (hould be laid out in a Purchafe of Onedevifes Lands of 3 Of 400 /. a Year, and fettled on his eldeft ney in the' Sou A. and the Hcirs Male of his Body, Remainder to Govern- jjig fecond Sou B. and the Heirs Male of his Body, ^c, laid out in and bequeathed the reft of his perfonal Eftate to A. ^oiZz^oi ^"^ ^^ Heirs Male of his Body, Remainder over, in 3 or 400/. the fame Manner. fer Annum, to be fettled on the eldeft Son, and the Heirs Male of his Body ; Remainder to the fecond Son, and the Heirs Male of his Body, i^c. and devifes the reft of his perfonal Eftate to his eldeft Son, and the Heirs Male of his Body ; Remainder to his fecond Son, ^c. the perfonal Eftate cannot be intailed, but the whole vefts in the eldeft Son. Where 3 or lj)rd Chancellor : It is clear, the perfonal Eftate can- j'mmJ'kdi- T^^^ he intailed, but the whole Property thereof vefts rcacdtobe 'lYij^ 33 to the other Devife, I will conftrue it in the the Court' Hioft liberal Senfe; and it being directed that Lands of ^ the kr eft 3 ^^ 4^° ^* P^^ ^nnum ihould be purchafed, it Ihall be Senfe, and 400 /. per Annum. conftrue it to be 400 /. ftr Annum. \£l tl'be -^"^ ^^°' ^^ ^^'^^ infifted, that this being the Cafe of purchafed Mouey dire£l:ed to be laid out in Land, was to be conftrued and convey- ed to y^. and the "Heirs Male of his Body, Remainder to B. Equity will not decree it to be fettled to A. for Life, Remainder to his firft, is!c. Sons, 4 like De Term. S, Mlchaelis, 17 19. 291 like Marriage-Articles, where Lands are covenanted to be fettled upon the Hufband and the Wife, and the Heirs Male of the Body of the Hufband, in which Cafe the Court would order a ftrift Settlement, 'ui's^. to the Father for Life, Remainder to the firft, ^c. Son, to the Intent that the Hufband might not bar it. And for the fame Reafon fhould do fo here : Yet Lord Chancellor faid this Cafe differed : For that in Marriage Articles the Children are confidered as (a) Purchafors ; but in the Cafe of a Will, (as this was) («) v.de ante 62. verfiia where the Teflator exprelfes his Intent to give an ^JJ^ Eftate-Tail, a Court of Equity ought not to abridge C'^eman. the Bounty diredled by the Teftator. Hovjel verfus Price, et ecoiL cafe ^^, A In Confideration of 300/. made a Welch Mort- ^^y^*""- gage, {yi\^ a. Conveyance in Fee of 52 per Ann. Prec'ed. in in Wales, under a Provifo to be void, if A. his Heirs ^''^"- *' or Afligns fhould pay to the Mortgagee or his Heirs inFl^^ 300/. on any Michaelmas Day, giving fix Months No- J^^'^^ '^^- tice, and the Mortgagee to have the Rent which fhould Payment be then in Arrear ; but there was no Bond, or Cove- *^f 300/. ' and Intereft nant to pay the Money. upon any Michaelmas Day, on fix Months Notice, Mortgagor dies, having devifed his Perfonal Eftate to his Wife} Perfonal Eftate is liable to pay the Mortgage. The Mortgagor continued in PoffefHon, and payed the Intereft during his Life, and by his W'ill gave fome Legacies, and devifed the Surplus of his Perfonal Eftate, Subje6l to his Debts, to his Wife and Daughter, whom he made Executors, and died. Upon which, the Daughter dying foon after, the Heir brought this Bill againft the Widow the furvi\:ing Executrix, to compel the 292. De Term. S. Michaelis, 17 1 S"- the Applying of the Perfonal In Exoneration of the Real Eitate. Sir Jof. Jekyll pro ^ler infifted, that this Mortgage was Money borrowed, and a Debt, of which the Mortgagor's paying Intereftwas an Evidence; that the i/l^«Terfiis W ^^^^ ^^^^ favoured in Equity, beyond an Admini- Smray;Y>o^ fttator, or au Executor ; for if a Man were to article to ^s*Rod"k pui^chafe an Eftate in Fee and die, the Heir fhould com- Edwards pel the Exccutor to lay out the Money, and ftiould take ^Countefi of the Land when bought ; and if Equity would favour the iVarwUk. Heir, fo far, as to help him to a new Eftate, a Fortiori, in this Cafe, would it interpofe, to preferve to him the old one ; that the Mortgagor's continuing in Pof- fefflon ihewed this was only a Debt upon the Eftate ; and if the Mortgagee had entered, and received the Profits, "he muft have been accountable, and they would have gone tov/ards leftening the Debt ; nay, and notwithftanding the Covenant, that the Mortgagee Ihould have the Arrears of Rent due on the Michaelmas Day, that the Money fhould be paid in, yet Equity would not allow that, but they would go towards Sa- tisfaftion of the Mortgage Money ; fo if the Mort- gage were evi£led, or were not of Value to pay, or anfwer the Mortgage Money, Equity would make the Mortgagor anfwer the Surplus. Befides, the very Loan of the Money cr>,ated a Debt in Equity, and the Over-value of the Eftate, (vi^.) $ z per Ann. mortgaged for 300/. proved it to be fo be- yond all Contradi6lion. Mr. Vernon com. This is a Conditional Sale betwixt the Mortgagor and Mortgagee, that the Mortgagee fhould have the Land, until the Mortgagor, or his Heirs,- Ihould pay the Money ; but ftill it was in the Eledion of the Mortgagor, whether ever he would 1 pay De Term. S. Mich a ells, 17 19. 295 pay the Money, and the Mortgagor was no way com- pellable to pay it, any rliore than a Pawner is bound to pay the Money for which the Pawn was made, neither will any A£lion of Debt He for this Money. I admit, if the Mortgage were evi£led, or the Land not of Value, the Mortgagee might, in Equity, recover the Money againft the Mortgagor; but that would be becaufe of the Fraud that the Mortgagor would, in fuch a Cafe, be guilty of; it may be re- fembled to the Cafe of a Father's mortgaging his Land {a) and dying, whereupon the Son enters, though this (^)Saik.45o. be a Debt, and an Incumbrance on the Son's Eftate, ^ vide when the Equity of Redemption defcends to him, verfus £w- yet, as ic was never the Son's Debt, the Son's perfo- ^>^'- nal Eilate (hall not be applied in Exoneration of fuch Mortgage. Lord Chancellor asked, whether there had been any Precedent in this Cafe, and fald, that here did not appear to be any Contrail:, either exprelTed, or implied, for the Payment of this Mortgage Money, nor was the Mortgagor any ways compellable in his Life-time to pay it ; and if fo, why fhould his Executors ? That the Exonerating of the Real out of the Perfonal Eftate, was the Applying one Man's Eftate to the Clearing of ancnher's; for which he could fee no Reafon. Sed Adjourn, for further Coniideration. It feems Sir Thomas Pon>is (as Amicus Cur.) informed Where Por- the Court, that where Portions were cliarged upon an chargcj'on Eftate, in the common Manner of Settlements, the Land, whe- Perfonal Eftate had been decreed to exonerate the Land Hcirihaii of thefe Portions, though there never were any Cove- p^^^j''"^ nants for the Payment of them ; but Mr. Vernon denied Eftate todif- that he ever knew of any fuch Decree. '^''^^^'^ "' 4 F {a) Af- Z94 De Term. S, Michaelis 17 1 S". {a) Afterwards, this Cafe coming on again, to be argued, Lord Chancellor feemed to be Itrongly of Opinion, that the Perfonal Eil:ate fhould be applied In Eafe and Exoneration of the real Eftate. ly?. For that the Father's Will had fald, that his Ex- ecutors Ihould, by his perfonal Eftate, pay and levy his Debts. And if (chough the Will were filent) on the Tefta* tor's dying indebted, the Perfonal Eftate ought to be applied to pay the Debts, in Eafe of the real Eftate, a fortiori mull it be fo, when the Will was exprefs that all the Debts fhall be paid thereout. idly. This 300/. Mortgage Money was a Debt, for fo is all Money borrowed ; indeed it was a Debt of a fpecial Nature, and for which there was a par- ticular Remedy; the Remedy, in this Cafe of a Mortgage, being not by Mutuams at Law, or by Bill in Equity, but ftill it was a plain Remedy, (vi^.) by Ejednient to recover the Pofleifion on Default of Pay- ment. 3^/y, If in this Cafe the Mortgagee had been In Pofieilion, it would not have made it lefs a Debt, fince the Creditor would thereby have had his Remedy in his own Hands. 4thly, It was fuch a Debt, as the Mortgagor took great Care that he, his Heirs or Aftigns might at any Time be at Liberty to pay off. (a) LiiHce 1^. OSloh. 17 17. On the Equity rcferved after the Trial of an IfTue that had been direfted by the Court. %thly. De Term. S. Michaelis, 17 1 S". 299 ')thlyy The running on of Intereft, and its carrying Intereit, was a Proof of its being a Debt, and the Pro- vifo faying, that if the Mortgagor his Heirs or Afligns IhoLild pay the 300 /. and the Rent or Arrear of Rent ^ ) the Mafter of the Rolls. And on hearing. the Caufe, his Honour decreed the Legacy to the Executor over and beyond the Debt, but ordered that, having waved the Surplus by his Anfwer, he Ihould account for it to the next of Kin, ' ■ though there was ftrons; Proof that the Teftator in- . tended the Surplus to the Executor, and had directed the Scrivener to infert in his Will a Bequeft thereof to (OVideLady him ; but that the. Scrivener faid this was unneceflary, rtf«^?sCafe ^^^ t^at ilie Exccutor would take this Surplus (c) of cited ante 9, Courfe. &i lib. „ . .^ X .. From De Term. S. Micbaelis, IVI'^. 299 r'rom this Decree the Plaintiffs appealed to the Lord Chancellor Cowper, where it was urged for the Appel- lants, that this Legacy miift go in Satisfa6lion of the Debt ; that every one muft be juft before he is boun- Legacy ftiaii tiful J and that it had been decreed, where a Father Sadsfaaion was bound to give a Portion with his Child, and after- ofaPonion. wards by his Will gave a Legacy to fuch Child, of as great, or greater Value, than the Portion, this Ihould be (even in the Cafe of a Child) a Satisfa61ion of the Portion ; and they cited the Maxim in the Civil Law, Debitor non pr ^^^ ^^'^ Defendant faying by his Anfwer, be read a- that he was much in Years, and could not remember ^J '^^ the Matter charged in the Bill, but that J. S. was his Attorney, and tranfa£led this Matter, and J. S. the 4 Attorney De Term. S. Michaelis, 17 1 S*. 301 Attorney being made a Defendant, and giving an Ac- count of the Matter : Here, upon a Motion for ah Injunction, Lord Corv' per ikid, thefe Words in the firft Defendant's Anfwer amounted to a referring to the Co-Defendant's An- fwer, and for that Reafon the Attorney's Anfwer ought to be read, and accordingly was read againft the tirft Defendant. Anonymus. <^afe 76. A N Injunftion upon an Attachment, or a Dedimus, injunaion •^^ or upon the Defendant's praying Time, does not "p^" ^" ^^- n 1- • 1 • • 1 V. tachment or extend to Itay Proceedings m the Spiritual Court, as Dedimus, it does to ftay Proceedings at Law ; fo that whenever ^'p°^'^^f. Proceedings in the Spiritual Court are to be flayed, it is ings in the to be moved fpecially. ^jofe. cafeys. Lord Chan- M . . ''^^'"' Cow- R. Dyoje or Gray s Inn had a Wife and three Sons ; per. his real Eftate was fmall, but he had a perfonal a refiduary Eftate amounting to near 20000 /. and by his Will ^^Defiden"/ {inter at) gave 3000/. a-piece to his two younger of ^flets. Sons, and the Surplus to his eldeft Son, and made his comTin />ar/ Wife Executrix and Guardian to his Children, who^J^^'^*"^ were then all Infants, and fhortly after died. gatea,, by Reafon of the fpecial Circumftanccs of the Cafe, On his Death, it appeared, that the Bulk of his per- fonal Ertate conlilted of few Items, {"vi^-) In Eaft-India Stock, Bank -Stock, and Monies in the Government Funds. Afterwards the Wife married one Lyndall, who con- verted great Part of Mr. Dyofe's perional Eftate, and went beyond Sea ; and the two younger Sons bringing their Bill in this Court for their 3000/. Legacy, it was urged that it would be hard on the eldeft Son, to whom the Father intended to be moft bountiful, if he muft be poftponed to his two younger Brothers, by their being firft paid their Legacies of 3000/. a-piece with Intereft, before the eldeft Son fliould come in for any Thing. Lord Chancellor : Let the Mafter take an Account of what was the clear perfonal. Eftate of the Teftator Dyofe at his Death ; and this perfonal Eftate lying in a narrow View, and confifting chiefly but of few Items : His Lordftilp was of Opinion, that the Teftator Dyofej muft, at the making of his Will, know what 4 I his ^o^ De Term. S. HtlL 17 19. his Surplus would amount unto, after his Debts and Legacies paid ; and that he meant this Surplus as a Legacy to his eldeft Son : "Wherefore the Court declared, it ought to be looked upon as fuch ; and direfted, that the Mafter fhould compute Intereft, as well for what was the Surplus of the Teftator's perfonal Eftate at his Death, for the eldeft Son, as for the two Legacies of 3000/. a-piece to the two younger Sons; and if any of the three Sons had received any Part of the perfo- nal Eftate of the Father, the other two were, in the firft place, to receive as much, fo as to put them all upon an equal Foot ; and afterwards all the three Sons were to receive pari paffu, in refpeft of the Value of the Sur- plus given to the eldeft Son, which was to be taken as a Legacy, and in regard to the Legacies of 3000/. each to the two younger Sons. c,fe Attorney General verfus Mayor of Co- urdch'an. 'ventrj, cellar Cow- 2Vern.73o. HTHE Earl of Jyksford was intitled in Fee-fimple Grantee of to a Fee-Farm-Rent of 50/. per Annum, refer- Fee-Farm- y^^ j-q j-j^g Crown upon the Grant of King Edrv. i. the fame of divcrs Ftanchifes to the Corporation of Covemrjy, Power of ^vj-iich Rent being, amongft others, fold by the Crown Udtrefs as n i r r the King by Virtue of the Statute or 2 2 Car. 2. cap. 6. (for the maycHftrat ^^^^"cing of the Sale of Fee-Farm-Rents,) became on other veftcd in the faid Earl ; and by the Words of the above Tenan't/ ^ mentioned Statute, as full a Remedy is given to the tho' not fub- Kinfj's Patentees, their Heirs and Aflisns, as the King jed to the , . y tlx Maflcr of" ilic Ivollb, aliil n.litlii- OncieviCs ■■■ ted by JVIr. I'crmm aiul others, to l)e IctikJ, ihat !,ri!i!,'poi"ro- whcre one devlles the rcll of his pcrlonal I-'llatc to his ":'' i't't<--to Relations, or to be dividfil ailKrti}; Ills IM.itionv, widi- t'i .i.-i ;\miy out faying what Relations, it lliall lio anion ii all flu h '"' ,'■ """ , » , , , litlu* who *irc Relations as are capable of taking within the (4) Sta- .lipnbicof tute of Diilribution ; ell'e it would be uncertain ; for "''"'R^ith- ... , . p . ^ III ihf Sta- the Relation may be inliniie. lui.-oi di- (llii)Uti(lll. {)i) Sec tlic Cafb (if Rc{iJ) verfiiS Jones, FwCtJ. in ChiUi. 4(3 f. Imt nlnre particularly Car vcr- i'us JiiJfciti, x Cli.iii. Rc|i. 77. But in the principal C^aie, the Tellaior deviled the Surplus of his pcrlonal Hilate to his Pour llclittonx) and the (Jountcfs of Wimhi'ljcd being a Relation, us ncal- as any, to the TtfUtor, fhe Was a Party lo ihc »Suit» and claimed a Share j and it Was decreed, flic was in- Ono Jtvifch titletl thereto, in regard the Word fPoorl was fVe- '•'.•• i^'"i'i"» (juently ulcd as a Term or Indcirmcni^ and CoMpiil/ion, ("umI iiim* rather than to liquify an indigent PerJon ; as one (peak- ',? ,''"' ''"'" ing of ones Father, often lays, my Pouf Either , or of ''"^ «•"- one's Child, my Poor Child. "'"'*' ^' But this fecms to have been a flraincd Interpretation In Favour of the Earl and CJountefs of Wimhcljca, who had not an Kflatc any Ways* proportionate to their Qiiality. D H 528 D E Term. S. Michaelis^ 171(5* Cafe S6. Lord Chan- cellor Cow- per. An Owner of a Quit- Rent (hall pay Taxes only in Pro- portion to what the Land pays ; but if the Matter has been exami- ned by the Commiflio- ners of the Land-Tax, Brockman verfus Honyiwod. ^plRockman had a Quit-Rene of 3 /. a Year, as belong- ing to his Manor of Dale^ and IfTiiing out of the Lands of the Defendant Sir William Honywood, who, irt the Payment thereof, infifted to dedu£l: two ShilHngs in the Pound for the Land-Tax of four Shillings in the Pound ; and fummoned the Plaintiff before the Com- miffioners to adjuft the Land-Tax on the Qtiit-Rent, who accordingly afcertained it at two Shillings in the Pound; after which the Defendant tendered the Qiiit- Rent, deducing two Shillings in the Pound. this Court will not re-examine it. On the other Side the Plaintiff infilled, that the Defendant ought to dedu£l out of the Qiiit-Rent only in Proportion to what the Land, out of which the Quit- Rent ilTued, paid; which in the prefent Cafe was leis than two Shillings in the Pound ; and that the Com- milfioners of the Taxes had no Power to aicertain what (hould be deduced ; wherefore he brought this Bill, in order to have the Court fettle the Proportion, by fending it to a Mailer. 4 Lord De Term. S. Michaelis, 1716. 529 Lord Chancellor : The Plaintiff Is fpending a Shillln"' to gee a Half-peny. Tho' the Gommillioners have no Power to fettle the Proportion of Taxes, as to what the Tenant ihall dedu£l for them out of the Qiilt- Rent ; yet they being Gentlemen of the Country, and living upon the Spot, and having Power to tax the Qiiit-Rent, I will look upon vvhat they have done to be a proper Meafure of Jultice ; and therefore the Plaintiff has not done w^ell not to acqulefce under It ; fo dlfmifs his Bill withCofts. But at the fame Time I declare my Opinion to be, ^a^'^^-"^^^ (as has been before refolved,) that a Quit-Rent, or Fee- -f'^ ';" ' ^'f*^,^,/^ Farm, In Cafe of Payment to the Land-Tax, (fuppofe'^'^T^^-^'^"-- a Tax of four Shillings in the Pound,) ought not to^'--->^-- ""-/"•'/■ have four Shillings in the Pound dedufled, unlefs the *^^**' *"'"*' "^ Land, out of which fuch Rent or Fee-Farm ifTues, " '" ' ^'"' ^ ^^^ pays four Shillings in the Pound, but is to pay only in Proportion as fuch Land pays. Criflian verfus Corren. cafeS;. Before a ' I 'HE Earl of Derby, King of the Ifle o£ Man, CounaUtthe -*- made a Decree in that Ifland concerning Lands ^'^^"• there ; and the Perfon, againft whom the Decree was ^^p^^' ^^°^ ' . ' ci a Decree in made, appealed hither. the ifle of ^ Man. The Subjef car not be deprived of his Right to appeal by any Words in the King's Grant to that Purpofe, much lefsj if the Grant be filent in that Particular. One (and Indeed the principal) Qiieftion was, whe- ther an Appeal did lie before the King in Council, there being no Refervatlon in the Grant made of the Ille of Man by the Crow^n, of the Subje6ls Right of Appeal to the Crown. 4 P And :^^o De Term. S, Michaelis, 17 1 6. And it was urged for the Appeal by my felf, (who alone was of Counfel with the Appellant,) that it ap- pearing, in this Cafe, that H. 4. had granted the Ifle of Man to the Earl of Derby s Anceftors, to hold by Homage and other Services, tho' there was no Refer- vation of the Subjefts Right of Appeal to the Crown, yet this Liberty was plainly implied. For that fuch Liberty of Appeal lay in all Cafes where there was a I'enure of the Crown ; that it was the Right of the Subjefls to appeal to the Sovereign to redrefs a Wrong done to them in any Court of Ju- ftice ; nay, if there had been any exprefs Words in the Grant to exclude Appeals, they had been void ; becaufe the Subjefts had an inherent Right, infeparable from them as SubjcSls, to apply to the Crown for Juftice. And on the other Hand, The King, as the Fountain of jfuftice, had an inhe- rent Right, infeperable from the Crown, to diftribute Juftice among his Subjefts ; and if this were a Righc in the Subjects, no Grant could deprive them of it; the Confequence of which would be, that in all fuch Cafes, 7;/^. where there were Words excluftve of fuch Right of Appeal, the King would be conftrued to be deceived, and his Grant void : Alfo Precedents were cited in Point. Lord Chief Juftice Parker, who aftifted at Council upon this Occalion, thought that the King in Council had neceftarily a Jurifdiftion in this Cafe, in order to prevent a Failure of Juftice ; and took Notice, that if a Copyholder Ihould fue by Petition in the Lord's Court, upon which the Lord Ihould give Judgment, tho' no Appeal or Writ of Error would lie of fuch I Judgment De Term. S. Michaelis, 171 (5. 531 Judgment, yet the Court of Chancery would corre£l the Proceedings, in cafe any Thing were done therein againft Confcience. Whereupon their Lordfhips proceeded in this Appeal, and determined in Favour of the Appellant ; and it Is obfervable, that Lord Derby alfo, at Length, ratlier than that fome Things in the Grant made by the Crown to his Anceftors ftiould be looked into, chofe to fubmit, and exprefs his Confent, that the Matters in Queftion on the Appeal fhould be examined by the King in Council. D E ?52. b E Term. S. Hillarii, 171(5. Cafe 88. Humherjlou verfus Humberjton. Lord Chan- cellor Cow- ^^' /'^NE Mattherv Humherflon, (reported to ha\^e been plced"?n^" ^^ formerly a Chrift-Hofpital-Bqy,) devifed hlsEftate^ Chan, 455. which was very conliderable, to the Drapers-Company^ Devife of and their Succeflbrs, in Truft to convey the Premiffes Cor^'ora ^ ^^ ^'^ Godfon Mattherp Humberflon for Life, and after- tion, in wards, upon the Death of the faid Matthew^ to his firll Jonty'the Son for Life, and fo to the firft Son of that firft Son Premiffesto for Life, ^f. and if no liTue Male of the firft Son, J. i"or°Life ^hs" to ^^e fccond Son of the faid Matthew Humberflon and fo to his for Life, and fo to his firft Son, i^c. and in Failure of Life;°and ftich IlTue of Matthew, then to another Matthew Hum' afterwards Icyflon for Life, and to his firft Son for Life, ^c. with the Premif- Remainders over to very many of the Humberflons, (I Son^of'dfat'^ think about fifty J for their Lives fucceilively, and Son for Life; their rcfpeftivc Sons, when born, for their Lives, with- lut of \uch ^^'t g^^'"S ^^ Eftate in Tail to any of them, or ma- Iffueof.^. to king any Difpofition of the Fee. convey it to B. for Life, isfc. this is a Perpetuity ; but the Convc)-ance fhall be made ns near the Intent of the Party as the Rules of Law will admit, (viz.) by making all the Perfons in Being but Tenants for Life; but the Limitation to the Sons unborn muft be in Tail, 4 On De Term. S. Hill. 1716. i^i^i^ On a Bill brought by the firft Devifee againil fe- veral in Remainder, the 1 ruftees, and Executors, and alfo againft the i\ttorney General, (no Heir being to be found,) for an Execution of the I'rulls of the Will : By Lord Chancellor : Tho' an Attempt to make a Per- petuity for fuccelhve Lives be vain, yet fo fir as is conliftent with the Rules of Law, it ought to be com- plied with ; and therefore let all the Sons of thefe feveral Hiimberflons, that are already born, take Eftates for their Lives ; but where the Limitation is to the firft Son unborn, there the Limitation to fuch unborn Son ftiall be in Tail Male. idly. Whereas it was obje£led, that where the Limi- tation, for Want of Illue Male of the firft Matthew Htimberfion, gave a Remainder over, thefe Words, [for Want of Iftlie Alale of the firft Matthew HiimberftonJ did by Implication create an Eftate-tail in the faid Matthew Humberflon, precedent to the next Remainder ; the Court faid, that thefe being Words of Implica- tion only, after an {a) exprefs Eftate for Life, and (") Vide ante being in Default of {b) fuch Ijfue, could not create an verfusk;.- Eftate-tail; and the rather too, in regard this would ^""''•. defeat the Intent of the Teftator, by impowering the BJad/ir firft Matthew Hnmberfton, by a Recovery, to bar all the ^'"'"I"' ^«''- lubiequent Remainders. ^ font'. T^dly, In this Cafe the Teftator, as an Incourage- Dcvife to ment to his Executors (who were four) to accept of ^'"'i^'^"' '•'' ihe Truit and Executorihip, had given to each or them mgementto 1 00 /. and 1 1 1, a-piece for Mourning, and lo each of ^^\^^^ '^f them a Ring, and lo /. a Year for their Trouble. loo/.V picce, and 12/. for Mourning, and a Ring, and lo/. a-piece for their Trouble; one refufes, yet he Ihall liave his Mourning and Ring, but not the loo/. Legacy, and the lo/. a Year, which, ia luch Cafe, (hall not go to the ading Executors, but link into the Efhite. 4 Q_ Upon ^54 ^^ Term. S. HilL 1716. Upon which Lord Chancellor fald, that notwitlv (landing the Condition of the Acceptance might feem to run to all the Legacies, yet the Executors, tho' they did not a£l:, Ihould have their Rings and Mourning, thefe being intended them immediately, and not to wait their Time of Acceptance ; but that they Ihould not have their ico/. and an Annuity of lo/. each, unlefs they accepted of the Truft ; and that the Share or An- nuity of the renouncing Executor, Ihiould not go over to the a£ling Executors as a further Incouragement, but ought to fmk lor the Benefit of the Eftate. Cafe 89. Bothomly verfus Lord Fairfax. Lord Chan- pen' ^°'^' 'T'HE late Lord Fairfax devifed his Eftate for Pay- 2Veni.75o. -*- ment of his Debts, which Eftate being accord- A Recogni- lugly by the Court decreed to be fold, and the Money roiled 'fhlir to be applied for that Purpofe, with Direftions, to pay be looked £)-fl; the Mortgages, then the Judgments and Recog- Bon"d,''and ulzanccs affecting the Land, and then other Debts; paid as Debt ^j-j^j fj-j^f- ^H the Ctcditors ftiould be at Liberty to come ^ ^ ' ^' before the Mafter and prove their Debts: The Mafter reported, that one James Chaplin had a Recognizance from Lord Fairfax in the Penalty of 1000/. for the Payment of 500/. and Intereft at 61. per Cent, which Recognizance had been aftigned by the laid Chaplin to Samuel Philips, but that this Recog- nizance happening not to be inrolled, therefore he (the Mafter) fubmitted it, whether it Ihould be taken as a Recognizance, or as a Bond only. And I, being of Counfel for Philips the Aflignee, argued, that this Recognizance Ihould be taken and paid as a Recognizance. I It De Term, S, Hill. 1715. 339 It is the Acknowledgment before a competent Judge, that gives a Recognizance its Force, Hob 1 96. Hall and \Vin^field\ Cafe ; the Inrohnent of it, is what is done by a minifterial Officer only, and is made life of as a proper Method for the Prefervation of the Security for fafe Cultody, and for the notifying it to others'; this is further proved by the Authorities that fay, the Recognizance binds the Land from the Time of the Caption, i Fent. 360. Hoi;. 196. So that if the Oog- nizor acknowledges a Recognizance, and aliens the Land, or dies before Inrolment, yet the Recognizance fliall bind the Land in the Hands either of the Alie- nee, or the Keir. What is faid in Hob. 106. in Hall and Wingfetd's Cafe, feems very material, vii^. That the firil Acknow- ledgment of the Cognizor of the Recognizance binds his Perlon and his Lands, as a Record frorri that Time, fo that the very Acknowledgment of a Recognizance before a competent Judge, alone makes it a Record before the Inrolment. And, with Subraiffion, It is very reafonable it fliould be fo, I mean, that the Recognizance without the In- rolment, Ihould be a perfeft Recognizance. Since the Party, who is to give the Security, has done his Part by acknowledging the Recognizance; the Judge, or Mafter in Chancery, that takes it, has alio done his Part, by fub- fcribing the Caption ; and after all this Solemnity, ihall the Negle£l, or Nonfea2^nce of the OHicer (an Officer purely minlllerial} prevent this Lien from beine of any Force, by the not inroUing it ? This feems very unrealonable. I muft own, there is a material DiflFerence betwixt a Recognizance in the Nature of a Statute Staple, or Statute 556 De Term. S. Hi /I 171 6. Statute Merchant, taken by Virtue of the Statute of A^on Burnel, (w^. 13 Ed. i. or other Ads of Parlia- ment impowering the taking of fuch Statutes,) and a Recognizance at Common Law. It is moft true, that thofe Statutes Merchant or Staple, that are taken by Virtue of the Statute of ASlon Bumel, or other A£Is of Parh'ament, require particular Circumilances to be obferved in the taking of them ; and if in the taking of thofe Statutes, Staple or Mer- chant, the A61s of Parliament are not purfued, then they have not the Force of a Recognizance. And it muft be admitted to be a favourable Con- ih-u£lion of the Judges, to allow fuch Recognizances defe£lively taken, to have the Force of Bonds, by Rea- fon of the obligatory Words that are contained in them. As for Inftance, the Statute of ASlon Burnel re- quires, that a Statute Merchant or Staple that is given, lliall have two Seals affixed to it, (yi'^i.) the Seal of the Cognizor, and the King's Seal, appointed for that Purpofe ; and to the fame Effe£l it is enabled by the Statute of 23 Hen. 8. cap. 6. in the Cafe of Statutes taken by either of the Chief Juftices. Now where the Cafe has happened, that only the Seal of the Cognizor or Debtor was affixed to the Re- cognizance, this was void as a Recognizance ; and in Cro. Eli^. 355, 461,544. 2 Rol. Abr. 149. Afme verfus Hollingrporth, after many Arguments, and with great So a Recog- Difficulty, it was relolved, that this Recognizance, "eguil'il ""^ being void as a Recognizance, might however be fued taken may as an Obligation, by reafon of the Obligatory Words be fued as an • • ■* Obligation. '" ^^* 1 This De Term. S. Hill. \^\6. 337 This (I fay) is a benign Conftru6llon ; becaufe a Delivery, as well as Sealing, is neceflary to make a Bond ; and if Non efl fa6lum were pleaded to a Recog- nizance fo taken, it would be ftraining pretty far, to make a Debtor's Acknowledging a Writing, as his Re- cognizance, to amount to the Delivery of it, as his Deed. It is plain, where an KQ. of Parliament gives a par- ticular Power of taking a Recognizance or Statute, that this a£1 of Parliament muft be obferved, and the Circumllances required thereby, complied with ; and if omitted, the Recognizance intended to be given, is not a Recognizance. Yet it is otherwife in Cafe of a Recognizance at Common Law (as ours in the Principal Cafe is) acknowledged before a Mafter of this Court, and where the Acknowledgment or Caption of it before a Judge, or Mafter, gives the 1 Jen it's Force. There is indeed an A£1 of Parliament made for the entering or inrolling of Statutes and Recognizances out of Regard to Purchaforsj as the 27 jE//-^. cap. 4. which requires Statutes to be brought within four Months after the Acknowledgment of them to the Clerk, to be entered on the Roll ; and it is thereby enabled, that the Statutes ftiall be entered on the Roll within fix Months after the .Acknowledgment; elfc, quoad any Purchafor, they fhall be void. But this very Ail fliews, that before the making thereof, the Statute needed not be entered on the Roll at all, and that even lince, it need be entered only in the Cafe of a Purchafor ; whereas in the prin- cipal Cafe, there is no Purchafor concerned, and 4 R the 338 De Term. S. Hill. 1716. the Recognizance is only made ufe of agalnft the Heir, Executor, or voluntary Devifee of the Lord Fairfax, the Cognizor thereof. Therefore, fince the Recognizance receives its Force from the Acknowledgment, fince it binds the Lands of the Cognizor from the Acknowledgment, lince it's a Record from the Acknowledgment, we humbly in- lift, it is from that Time a Recognizance, and to be paid as fuch. But if an Inrolment Ihould be thought necelTary, fuch Inrolment, where no Purchaior is concerned^ is not confined to the Life of the Party, but, as we conceive, may be done at any Time. Therefore, we pray, as to this Recognizance, which appears to hav^e been given before one of the Matters of this Court, that we may be, even noxp, at Liberty to inroll it ; and this we conceive moft reafonable. For it appears, in this Cafe, that the Security, which the Lender ftlpulated to have for his Money, was to be a Recognizance ; it appears, that the Debtor agreed to give a Recognizance for the Security; it is plain, that in Confidence of this, the Money was a£l:ually lent ; it is as plain, that the moft worthy and material Parts of this Recognizance, I mean the Acknowledgment and Caption, are all of them perfe£led. So that what remains to be done, Is only by the mlnifterial Officer to inroll it ; and the Creditor ought not to fufFer for the Negle£l or Omiilion of the Officer. In De Term. S, Hill. Jji6. 3:^9 In Equity, where there is the Cov^enant, or Agree- ment of the Parties, if made on a full and valuable Confideration, whether it be to mortgage, or convey Lands, the Court will compel an Execution. ]£ I Covenant, in Confideration of Money lent, to mortgage fuch Lands for it, this, in Equity, is a Mortgage, and fuch a Lien upon the Land, as that, if the Covenantor die, the Heir is bound by it, though not named ; fuch a Lien upon the Land, as that, if the Covenantor become a Bankrupt, his Land thus covenanted to be mortgaged, fhall not be liable to the other Creditors on the Commlllion of Bankruptcy. So that it is no Objeftion, that the other Creditors w^ill be prejudiced by the Inrolment of this Recognizance, for the other Creditors are as much prejudiced, in the Cafe laft put of the Bankruptcy. If it were admitted, that the Recognizance, for want of an Inrolment, is an imperfe6l Security, juft as a Mortgage, if made by way ot Feoffment, would be void for want of Livery ; yet, as in fuch Cafe, where the Security is made for a (a) full and valuable Confi- /„^ yug deration, a Court of Equity w^ould make it good, »"'<= '" though againft a mean Creditor by Judgment ; in the /■/l/,verL fame Manner will Equity help this imperfeft Security, ^orjofWin' if it be imperfe£l for want of an Inrolment ; it being ' ' ' ' agreed on all Sides, that the Security fhould be a Re- cognizance, and in Confidence of this, the Money a£lually advanced. And It is plain, when the Recognizance is Inrolled, (If that be requifite,) the Inrolment Ihall relate to the Acknowledgment, and make it perfed ah initio. So that we humbly take it, the Recognizance, though not inrolled, is a good Recognizance, or if an Inrol- ment 340 De Term. S. Hill. 17 16. ment be requifite, we are ftill at Liberty to inroU it, and that it ihall take place as a Recognizance. On the other Side it was alledged, that without In- rolment this Recognizance was no Record, nor could it be given in Evidence as fuch; and though no precife Time was fixed for the Inrolment of it, it was, how- ever, reafonable to follow the Equity of the \-^ Ed. i . cap. 4, which provides for the Inrolment of Statutes Merchant and Staple j and that, by the Courfe of the Petty-Bag, they never Inrolled Recognizances after fix Months, without a Special Order to do it nunc pro tunc. That in this Cafe Application had been made to the Mafter of the Rolls for Leave to do fo, who had rc- fufed It ; and particularly Sir Jofeph Jekyll infifted, that this Security ought to be deemed only as a Debt by Simple Contrad, and not as a Bond, in regard it did not appear to have been delivered as a Deed. Lord Chancellor : There is a juft Sufplcion upon the Security, that this Recognizance was otherwife latlsfied or fecured, it not having been all this while inrolled ; and whenever the Court permits the InroUlng of a Recognizance, after the Time elapfed. It always takes {a) To this Care not to hurt an Intervening {a) Purchafor ; and as thl'cafe S '^haf niay happen to be the Cafe here, therefore Fothergii Philips is to be looked upon as a Bond-Creditor only, liy, Wem. the Sealing and Acknowledging thereof fupplying 234- the want of Delivery. Cafe 90. Northey verfus Strange. ShJohnTrc- ^ "^ crtheVoiis. A Freeman of London has no "Wife, and has Iflfue A. Preced. a Son, and 5. and C. Daughters, C. marries a- galnft her Father's Confent, by which Means fhe ne- ver had any Portion ; afterwards fhe dies in her Fa- ther's Life-Time, leaving a Son D. 4 The in Chao. 470. De Term. S. Hill. 1716. 341 The Freeman makes his WllI^ wherein^ taking No- tice that he had given to his Son A. 4C0 /. and to his Daughter B. 1 000 /. in full of their Orphanage Part by the Cuftom, he devifes 500/. to his Grandfon D. and, after fome other Legacies, gives one Moiety of the Surplus of his Perfonal Eftate to his Son A. the other Moiety to his Children and Grandchildren. Afterwards the Freeman, In his Life-time, gives fe- veral further Sums, at feveral Times, to his Son, a- mounting to 600 1, more, the Certainty whereof does not appear under the Freeman's Hand, but does ap- pear by the Son's ^Anfwer in the Caufe ; and then the Freeman dies, leaving his Daughter B. enlient with a Child which was afterwards born. \fl. It was admitted by the Counfel on both Sides, ( , feverai other tcrwards reccived rarther Sums amountmg to 5oo /. Certainty f^^"! ^^^ Father the Freeman, and the Certainty thereof of which appeared by his own Anfwer, yet thefe Sums which pear,"odi?r'- wcrc additional Gifts to his Advancement, being wife than -^yitli the Other 400/. brought into Hotchpot, would Anfw^er T ^ ^^^ ^^ ^ Bar to his Orphanage Part. the Son not barred, butfhall come in for his Orphanage Part, (a) 2 Vern. 630. Onedevifes ^tbly. That the Child of B. the Freeman's Daughter, jJ^l^Efete ^^^o ^^'^^ '^^ Ventre fa Mere at the Freeman's Death, to his Chii- fliould not take ; in regard a Devife to one's Children Grandchii- ^"^^l Grandchildren fhould, prima facie, refer only to dren ; a f^ch Children and Grandchildren, as were living at the ■Jvemrefa Time of the making of the Will ; but if a Devife Merc atthe ^yere to my Children and Grandchildren livirpg at my Death, fhaii Death. 3. Child in Ventre fa Mere might, in fuch not take ; Cafe, be fo far regarded, as to be looked upon as fecus had It ' , , o ' ^ been to the ilVing {bj. Children and Grandchildren living at his Death, (b) Vide ante the Cafe of Bsak verfus Beak. ^thly. That the Son A. (hould not come in for a Share of the remaining Surplus, he being, by the Words of the Will, feparated from the other Children, (vi^^ the Devife being of one Moiety of the Surplus to the Teftator's Son A. and the other Moiety to his Chil- dren and Grandchildren, fo that the Son A. was in- tended to hav^e only a Moiety. I 6thly, De Term. S. Hill. I'ji6. 34^ 6th!y, That the Children and Grandchildren mufl: children tsiktper Capita, and not per Stirpes ; they all taking in ^jJid^eT''' their own Right, and not by way of Reprefentation. muft take per capita. "jthly. That a Legacy of 5C0/. being given to A ('')_- ^'^f"- and if A> died before twenty-one, then to B. upon ^.'s 6ii.'& ante dying before twenty-one in the Life of the Telbtor, [^^f^f'^'^'? this was not a lapfed Legacy (rf), but fhould go over '■.fSifdk. to B. tc o Onions verfus Tyrcr. caic9i. Lord Ckan- N E by Will duly executed and attefted by three per! Witnefies, who fubfcribed the fame in the 2 Vem. Prefence of the Teftator, devifed Lands to Truftees, to jy- , . X rcccd I n feveral Ufes under which the Plaintiff claimed. ciianc! 459, In a Will devifmg Lands, three Witneffes Inuft fubfcribe in the Prefence of the Teftator. He afterwards made another Will of the fame Lands, a win or devifmg them to other Truftees, but to the fame voking^a"^ Ufc9, and there was a Claufe, in this laft Will, re- formerWiii, yoking all former Wills; but in this laft Will, tho* Icr'ibedby" fubfcribed by the Teftator, and attefted by three Wit- ^^^^ ^^^^ nefies, yet the Witnefles did not fubfcribe their Names this need not in the Prefence of the Teftator. beinthePre^ lence of tno Teftator. Upon which the Teftator's Heir at Law laid claim to thefe Lands ; and the Qiicftion was, whether this laft Will, which was admitted to be a void Will quoad the Lands in Qiieftion, ftiould yet be a good Revoca- tion of the former Will ? ■A ?44 De Term. S. Hill. 17 16. ifl, The Diverfity betwixt the Penning of the two Claufes in the Statute of Frauds was obferved ; (fciL) (a) Sea. 5. [jjg (^laufe relating to the Devife of Lands (a) requires^ that three Witneffes muft fubfcribe in the Prefence of the Teftator ; but the Claufe of revoking former Wills (b) Se a.e. (^y^ c^yg^ j-i^^j. j^Q ^YJii \^ Writing of Land ftiall be re- voked, unlefs it be by fome other Will or Codicil in W^riting, or Writing declaring the fame, ligned in the CO Ante ^^^ Prefence of three or more WitnefTes; fo that this lafl: Claufe does not dire£l: that the Writing, which re- vokes, fhould be fubfcribed by three WitnefTes in the Teftator's Prefence ; but a Will of Land muft be fub- fcribed by three WitnefTes, and that in the Teftator's Prefence. n. But then it was infifted, that this laft Will, notwith- ftanding the ufual Claufe of revoking all former Wills, fhould not revoke the firft Will ; for that the revo-* king Claufe in the Statute requires, that fuch Revo- cation fliould be by a Will, which (it was faid) muft be a ^oarfand effe^ualWiW of Land, and this laft Will was not fo ; neither was it a good Codicil, or fo much as a Writing declaring an Intention of Revocation ; for that this Writing, (fuppofing it to be a good Will,) was yet fo far from intending to revoke the former Will, that it gave the Land exa£lly to the fame Ufes ; now the Revoking intended by this Claufe of the Statute was fuch, as fhould be made purely with an Intention to revoke or deftroy a former Will ; and fo it was held and refolved in the Cafe of Ecckjion verfus Speak, in 3 Mod. 258. ^ Show. 89. A ^°^j.^'" Lord Chancellor : I do allow of the Cafe of Ecclefion though there ver[us Sj)eaky in regard there the fecond Will devifed the be a Claufe j^ands to the fame Perfon to whom they had been of revoking •/ all former Wills, will not however operate as a Revocation. 4 devifed De Term, S. HilL l^i6. 34<5' devifed by the firft Will ; and therefore it may be truly faid, that the fecond Will did not intend to revoke the former, but rather to confirm it. But fuppofe, in the latter Will, in that Cafe, there had been no Devife of the fame Land to the fame Perfon, or if the latter Will had only extended to the Perfonal Eftate, and not to the Lands in Qiieftion, then the general Claufe of revoking all former Wills, might have been a good Revocation* But a fecond Will devifing Lands to the fame Per- f fo'me!^^ fon as the former, and revoking all former Wills, wniby and this fubfcribed by three WitnefTes, but not in the ^fiS'.°' Teftator's Prefence, Ihall never revoke the former '""mption Will, fo as to let in the Heir ; nay, if by the latter wmlgood, Will the PremiiTes in Qiieftion had been given to a ^^"^'^ ., 1 • 1 11 r • fl 11 1 1 • 1 • • proves void, third Ferlon, it Ihould never have let in the Heir, m will not let tegard the Meaning of the fecond Will was, to give '" '''^^^'''• to the fecond Devifee, what it had taken from the firft, without any Confideration had to the Heir, and if the fecond Devifee took nothing, the firft could have loft nothing ; or if the firft Will had been cancelled by the Teftator's Directions, upon a Pre- fumption, that the fecond Devifee was to take the Premifles by the fecond Will, fuch a Cancelling ftiould not have profited the Heir, becaufe it would have been a cancelling proceeding from a Miftake : It is no more, than if the Teftator, being Sick, and having his two Wills under his Pillow, fliould, by Miftake, give his laft Will to be cancelled. Or order one to cancel his Firft, who, by Miftake, cancels his Laft. And fo in the principal Cafe, though the firft Will was ordered by the Teftator to be cancelled, and the fame was in ,Fa6]; cancelled accordingly, yet all this being upon a Prefumption, that the latter 4 T Will ^{46 De Term S. Hill, 171 6. will was good, and duly executed, it is properly relievable under the Head of Accident. Wherefore let the Heir be enjoined, and the firft Devifee hold and enjoy. Duplicates In this Caufe it was faid by Sir Thomas Porvis, and and^cancek ^^^ denied by any, that if a Man, having two Dupli- oneofthe catcs of his Will, cancels one of theie Duplicates SITrc- w'fh ^" Intention to deftroy his Will ; this is a good vocation of Revocation of the whole Will, and of both the Du- wiiL °^ plicatesj and that this was Sir Edward Seymours Cafe. t D E 347 D E Term. Pafch^, 1717. Bagot verfus Oiighton. c^scgi. Lord Chan- cellor Cow- SI R Edward Bagot married the Daughter and Heir p^""- of Sir Thomas Wag fluff, and for raifing Part of ^ Covenant Mrs. Wagflaff's Portion, Sir Thomas Wagflaff mortgaged Mongage- Part of his Eftate for 2500/. and died, leaving Ladv i^T^'H , . , 1 ,T • -^ '"able in E- Bagot his Daughter and Heir. quity, uniefs Covenantor Teccives the Money ; as where a Feme Sole, feifed of Lands, rnortgages, and marries B. and the Mortgage is afligned, and B. in the Deed of Aflignment covenants to pav the Money and dies, his perfonal Eftate not liable in Equity to pay the Mortgage- Monty. The Lady Bagot afterwards joined with her Hufband Sir Edrpard in a Deed and Fine, whereby fhe fettled her Eftate on li£r Huftand and her felf, and the Heirs Male of the Body of her Hulband. It happened, that the Mortgagee wanting his Mo» ney, Sir Bdward joined in an Ailignment of the Mort- gage, and covenanted thi^t he, or his Wife, or one of them, would pay the Money. Afterwards Sir Edward Bagot died, leaving Sir Walter his Son by his faid Wife, and his Lady intermarried with the l')efendant Colonel Oitghton, and died. And 548 De Term. Pafch^, il^l- And the Qiieftlon being, whether, by Reafon of the Covenant from the faid Sir Edward Bagot, for the Payment of this 3500/. Mortgage- Money, Sir Edward's perfonal Elfate fhould be liable to pay the fame ? It was decreed by Lord Chancellor, that this Co- venant by Sir Edward Ihould not oblige his perfonal Eftate to go in Eafe of the mortgaged Premifles j for- {a) Vide the afmuch as the Debt being (a) originally Sir Thomas Wag^ lylledm^'' fl^jf'^- ^nd continuittg to be fo, the Covenant upon Eveiyn,^Q{i. x\\Q transferring the Mortgage was an additional Secu- rity for the Satisfaftion only of the Lender, and not intended to alter the Nature of the Debt. From hence, as it feems. It may be Inferred, that If a Feme Sole makes a Mortgage, and receives the Mo- ney, and marries, and then the Mortgage is transfer- red, the Hufband joining in the Affignment, and cov^e» nanting to pay the Money, the Wife, of the Heirs of the Wife, upon the Death of the Hufband, fhall not compel an Application of the Hufband's perfon^ E- ftate for the Payment of this Mortgage-Money. Secus if the Hufband had received this Money. Cafe 93. Dean and Chapter of Dublin verfus Dowgatt. Lord Chan- cellor Cow per. Award of a Mandamus Whether 'Tp p^ £ Arch-dcacott of Dublin moved for a Manda- Error lies ■ on a Ruie.or ■*" mtis In the Coutt of Klng's Bench in Ireland, to be direfted to the Dean and Chapter of Dublin, commanding them to admit him to a Stall in the Cathedral Church of Dublin, and to a Vote In the Chapter. 4 ■ And De Term. Pafch^e, 1717. 349 And upon that Motion, and Arguments thereon, the Court of B. R. there granted firft a Mandamus, then an Aliasy and at laft a peremptory Mandamus. Afterwards the Dean and Chapter brought a Writ of Error ilfuing out of the Court of Chancery here, and returnable in the Court of B. R. at Weflmmfler ; and it was moved, in regard the King's Bench in IrcLmd had not made any Return to the "\Vrit of Error, that the Court of Chancery would order them to make their Return, and in the mean Time to ftay all the Proceedings upon the Mandamus. For which Purpofe it was infilled, \fl. That a Writ of Error was a Writ of Right, and the King's Writ, and the only Remedy that the Subjedl had to be rc- drefled, when wronged by the erroneous Proceedings in an Inferior Court ; as the Court of King's Bench in Ireland was, with Refpe£l: to the Court of King's (a) Vidc poft Bench in {a) England. ^^^ nard. idly J That if a Writ of Error did not lie in this Cafe, on Account of its not being a Judgment, but only a Rule upon a Motion ; yet the Court of B. R. in Ireland ought to return this ; like the Cafe, where the Statute of 2 I Jac. i . cap. i ^ . fays, " That after Idue " joined, a Habsas Cotpts fhall not remove a Caufe out " of an Inferior Court", ftill the Inferior Court ought to make their (b) Return to the Court from whence (^'} Canhcw the Habeas Corpus ifTued, of the fpecial Matter, tho' tcd"cLZ. they have Liberty to proceed notwithftanding. "^dly, That upon a Mandamus, lince the Statute re- lating to Mandamus's (c), which allows fpecial Plead- (0 Anna-, ings to it, it is plain Error lies; but however, tiiere *" '' '" ought to be a Return to the Writ. 4 U On 590 De Term. Pafchif, 1 7 17. On the other Side it was faid, that it was very true, fince the Statute which allows fpecial Pleadings to a Mandamus, Error lay of a Judgment thereon ; be- caufe it is now in the Nature of an A6lion, and Coils are given by the Statute for that Side which prevails. But this is no Argument that Error lies of a Man- damus where there is no Plea to it, and only a Rule awarded for the Mandamus, which is not in Nature of a Judgment. lliat the late Statute of Mandamus's did not extend to Ireland; fo that there could be no fpecial Plead- ings, by way of Replication to it, as now there may be in England. 136. "ii' That this was like a Prohibition granted upon a Motion, of which no Writ of Error lies ; as was ad- judged in the Houfe of Lords in the Bifhop of S. Da- vid's Cafe, who moved for a Prohibition in the King's Bench to flay the Proceedings in the Archbilhop's Court, in order to his Deprivation, and the Court of King's Bench denied it ; and on that, the Biiliop of S. David's brought Error in the Houfe of Lords, who («) Saik. l^eld it did (a) not lie ; which was apprehended to be the fame Cafe. But if there was a Declaration upon a Prohibition, and Judgment given thereupon, in fuch Cafe Error would lie. But it being faid, the Court of B. R. in Ireland were difpofed to ftiew all Obedience and Refpe£l to the Court ot Chancery, and only defired Time to confider what to return, doubting whether this Writ of Error lay, and that they would fubmit, until they ftiould make a Re- turn to the Writ of Error, to ftay Proceedings upon the Mandamus ; the Court gave them their own Time. I On De Term. Pafch^, 1717. - 5^1 On this Occafion Varker C. J. (who together with C. J. King, and C. B- Bury^ were deiired by Lord Chancellor Corvper to aflift at the Motion,) faid, that the Court of Chancery might fuperfede this Writ of Error quia improvidc emanavit, if it were fo. Alfo he faid, that a Mandamus, fince the late Sta- Writ of Er- tiite, was in the Nature of an A£llon, fpeclal Repli- ™'"«'^J"'fg- • 111- • I • 1 • 1 ment on a cations, and Pleadings therein being admitted, and Colts Mandamm, given to either Side that prevailed : • noSuperje- o r deas to a pe- remptory And that a Cafe had happened in the King's Bench, where Judgment was given upon fpecial Pleadings upon the late Statute, for the Mandamus, and the Defendant brought Error, and it was admitted Error lay ; yet this was held to be no Superjedeas to the peremptory Mandamus', for that fuch a Conftru<3:ion would quite defeat the End of the Statute, and prevent the Ofiicer, who was chofen annually, from having any Fruit of the Mandamus. And King C. J. took Notice, that the Words of the Statute were, that in cafe Judgment were given for the MandamuSy a {a) peremptory Mandamus fhould be granted (^) vide without Delay. Sed. 2. DE 572. D E Term. S. Trinitatis^ 1717. Cafe 94. yane verfus Fletcher. Lord Chan- cellor Cow- pcr- O^ I R Henry Fletcher, having a confiderable Eftate in 1^ Fee-limple in Cumberland, and being converted to the Popifh Religion, conveyed his Eftate by Settlement to Truftees in Fee, in Truft that he lliould have a Rent-Charge thereout for his Life, and then in Truft to fecure his Sifters Portions ; and afterwards to the Ufe of Benry Fletcher, a remote Relation and a Papift, for ninety-nine Years, if he ftiould fo long live ; Re- mainder to the Truftees and their Heirs during the Life of the faid Henry Fletcher, to preferve contingent Re- mainders, Remainder to his firft and other Son in Tail Male ; and for Want of fuch IlTue, to Sir Hemys Nephew Richard Fane for his Life, and fo to his firft, ^f. Son in Tail Male, upon Condition to change his Name from Fane to Fletcher, with Remainders over. Sir Henry Fletcher died vv'ithout IlTue, and Henry Fletcher the Papift had no IlTue, and Richard Fane the Remainder-man, together with the Sifters and Heirs at Law of Sir Henry Fletcher, brought their feveral Bills, fetting forth, that Henry Fletcher, being a Papift, was I by De Term. S. Trin. 1717. ^53 by the kOi of the i i i?* i 2 ^F. 3. ca^. 4. jeEi. 4. difabled to take any real Eftate, or any Truft thereout ; wherefore their refpeillve Bills prayed, that the refpe£live Plain- tiffs fliould be let into the Polfeflion of the PremifTes. Lord Chancellor at firft inclined to dire6l an IfTue to try, whether Henry Fletcher was a Papift at the I'ime that this Remainder Ifiould have vefted in him ; and this was defired by the Plaintiffs ; but in regard the Kquity not Ad: of Parliament iniiided a Forfeiture and Difabilicy, Jl'^^f^"^^^ -'"Jf (for which Reafon it was to be taken ll:ri£ily,) and the A^ivniuage faid Henry Fletcher being above eighteen Years of Age "Jj^^, J*"^" at the Time of the making of the Settlement, and fo not within the Claufe of retrieving the Eftate, by re- turning to the Proteftant Religion, (which probably was (a) intended by the Parliament,; his LordQiip would (a)v\depoa not aflift the Plaintiffs fo far, as to dire£l an IfTue to ^^^ Cafe of try, whether the faid Henry Fletcher was a Papift, at the />kJ,^'^&^ Time when the Settlement was made; but left the Heir ^^"^^ /^""-X T Jlr. -J . J clesfield's O- at Law, and the Kemamder-man, to go on and try pinioiitberc- their Eje6lments upon feveral Demifes j and direfted, '"• that none of the Truft-Terms, or Eftates in the Set- tlement, previous to the faid Eftate limited to Henry Pletcher the Papift, or mefne betwixt the Papift and Mr. Vane the Remainder-man, fhould be given in Evi-' dence, or inlifted upon ; to the Intent it might be tried, whether Henry Fletcher, who was ftrongly affirmed to be a Papift, (but had on the other Side controverted It,) was capable of taking or notj and who had the Title, in cafe Henry Fletcher the Papift was not capable of taking ; the Remainder-man inlifting, that the Li- mitations to the Papift being void, therefore he was to take prefently ; and the Heir infifting, that the Re- mainder-man was not to take until Fletcher the P;ipift fhould be dead without liTue ; and that in the mean Time the Eftate fhould defcend to the Heir, as undif- pofed of by the Perfoh that made the Settleriient. 4 X It 5eth Long lliould take : This Judgment was reverfed in Cam Scncc\ and that Reverfd reverfed in the Houfe of Lords; but the Rea- fons of the Judgment which prevailed ieemed to be, iur that tho' the Lands were deviled to ths Heirs Male of the Body of Elizabeth Long lawfully begotten, yet the Will took Notice, that Elizabeth Long was at that Time living, and in Default of luch lifue of Eli^a^ bcth Long, the Remainder was to go to the Teftator's right Heirs. As De Term. S. Tr'nt. 17 17. 369 As to the Objeftlon which the Court made, that the Perfon creating this Term de novOj had as abfolute a Power over the Truft of the Term, as over the Term it felf, and might fever it from the Inheritance, and give it to the Wife ; that mull be admitted ; but then it muft be by proper Words, fuch as are not here; the Truft of the Term might, without Doubt, have beeii limited to the Huflxmd and Wife, and the Survivor, and the Executors and Adminiftrators of the Survivor; or to the Hufband and Wife, and to the Executors and Adminiftrators of the Wife ; but, in this Cafe, nothing is hmited to the Heirs of the Survivor, (who was the Wife,) but in Default of Ifllie of the Marriage, and alfo in Default of lHue of the Body of the Hufband; and this Limitation is void. The next Thing I would beg Leave to confider is, whether, when a Truft of a Term is limited to the Huft)and and Wife for their Lives, Remainder to the Heirs of their two Bodies, the Words [Heirs of their two Bodies] are Words of Limitation, and fo void in cafe of a I'ruft of a Term ; or whether they are not good by W^ay of Defcriptio perfon^e. And I apprehend, that the Heir of their Bodies fhall take by Way of Defcriptio perfon^. 1 admit the Cafe of Peacock and Spooner (a) was, that ('') 2 Vem. the Father poftefted of a Term alligned it over to ^'^' . Truftees, in Truft for his Son for Life, Remainder to his Son's Wife for Life, Remainder in Truft for the Heirs of the Body of his Son's Wife by the Son ; this Cafe came on firft before Lord Chancellor Jeffereys, and he decreed the Remainder to the Heirs of the Body to be void, and that the whole vefted in the Wife, which Ihould therefore go td her Executors or Adminiftrators. 5 B Afterwards ^570 De Term. S. Trin. 17 17. ffl)2Vern. Aftcrvvards it came before the Lords {a) Commir- ^^^' fioners, and they reverfed the Lord Jegereyh Decree ; it went at laft into the Houfe of Lords, who affirmed the Decree of Reveriiil, and held the Remainder limited in Truft for the Heirs of the Body of the Wife, to be good, by way of Defcription of the Perfon. But I apprehend, the Reafon of that Refolutioil was, not, as was hinted by the Court, for that this was within the Equity of the Statute of B. 7. made againft Jointreiles difcontinuing, or barring Eftates limited to them ex provijione vir'h or of his Anceftors : For furely, the Statute of H. 7. extends only to Free- hold Eilates ; it was made to prevent the Jointrefs from difcontinuing the Eftate fettled upon her, or the Re- mainders limited thereupon ; but a Tenant for Years could not make any Difcontinuance. 1 he Statute of H. 7. was made to prevent Jointrefies from levying Fines, or fuffering Common Recoveries for the barring of the Iffue, or the Remainder ; but a Tenant for Years could never levy a Fine, or fuffer a Common Recovery, and therefore a Term for Years could not be within that Statute. And tho' this Cafe of Pea- cock and Spooner was fo much agitated, and fo often fpoke to, by the greateft Counlel of that Age, yet none of them, according to the Account I have of the Cafe, ever made ufe of it as an Argument to fup- port the Remiainder limited to the Heirs of the Body of the Wife by the Husband, that this was good with- in the Equity of the Statute of H. 7. But the fubftantlal Reafon feemed to be, that where the Truft of a Term is limited to the Hufoand and Wife for their Lives, Remainder in Truft for the Heirs of the Body of the Wife by the Hufband, this 1 is De Term. S. Trin. 1 7 17. 371 is good by "Way of Defcriptio perfon and makes a voluntary Aflignment, this is an Alteration of the Property. So if the Husband had fur- vived, and then had died without altering it, or fo much as adminiftring to his W ife. The Countefs of Kingflon died inteftate, and the Lord Orford adminiftred to her, and Mr. Hatcher tlie Husband of one of the Daughters, affigned over all that Share of the Perfohal Eftate which came to his Wife, by the Death of the Countefs, (and wliich confiftcd of Chofes in Aftion,) unto Mr. Richard Snow} Grace Hatcher afterwards died, and Mr. Hatcher^ having married again, died inteftate, and his fecond Wife having adminiftred to him, and having alio gained Adminiftration in the Spiritual Court to Grace Hatcher de Bonis non adminiftred by her Husband : I The De Term. S. Michaelis, 1 7 17. 379 The Queftlon was, who had a Right to Mrs. Grace Batchers Share of the Countefs qf Kin^flons Perfonal Eftate ? It was infifted for the furvivlng Daughters of Mr. Harbord, that Mrs. Hatchers Share of Lady King* Jlons Perfonal Eftate, was but a Chofe in A6lion, and tliat though a Right to a tliird Part of it veiled in Grace Hatcher, yet the Husband's Ailignment of it be- ing only voluntary, was not to be regarded in Equity. Secus if the AlTignment had been for a valuable Conli- lideration. That a voluntary Alignment by Mr. Hatcher would not have bound Mrs. Batcher, if fiie had furvived, and by the fame Reafon Ihould not bind her Reprefenta- tives, now fhe was dead. , Nay, That this Ailignment to Snow by the Husband was worfe than voluntary, it being fraudulent, and faid to be fo by his fecond Wife who now made a Title to it ; and therefore fuch an AlTignment, as fiie herfelf who would take Advantage of itj called fraudulent, ought not to prevail. Wherefore if the Affignment was out of the Cafe, the Husband Hatcher, upon the Death of his Wife, had not (as Husband, and furviving his Wife) the lead Right veiled in him, to any of his Wife's Chofes ia Aftion, but muft take out Adminirtration to his Wife, and after he Ihould have done fo, the Letters of Adml- niftration would give him nothing, but only a Power of altering the Property, which Power if not made ufe of, it then would be as if he had ne\'cr had ir. 38o De Term. S. Micbaelis, 17 17. That the Statute of Difti-ibutlon would not better the Hufband's Title in this Cafe ; fince the Claufe in the Statute of Frauds, {i^ Car. i. cap. 3. fe^r. 25.) which fays, that the Statute of Diftribution (hall not affeft the Husband's Right to his Wife's perfonal E- ftate, exempts him from dillributing, only in CafeS where he has an Interefl vefled in him, which here he had not : So that it was the fame Cafe, as if the Sta- tute of Diftriburion had never been made ; or as if this Cafe had happened before that Statute. Confe- quently, after the Husband's Death without altering the Property, then the Chofes in Aftion of the Wife, not adminilfred by the Husband, did fall within the Statute of Diftributicn, and became divifible amongft the next of Kin of Grace the Inteftate, the Wife of Hatcher. Neither was It material that the Defendant, the fecond Wife of Hatcher, had gained Adminiftration de bonis non, ^c. of Grace the firif Wife, for ttill Ihe wa? but a Hand to receive the Money, fubje£l: to Diftribu- tion according to the Statute. Lord Chancellor : The Husband's Title at Law to the perfonal Eftate of the Wife is favoured ; even a 'I'erm which is a Chattel real, Ihall go to the Husband (a) I Infi. r^\ furvivinji his Wife ; and as to all the perfonal b. ^' Goods, they are his by the Intermarriage. I'ho' the (b) Vide Husband adminiftring to the Wife is (b) liable to pay her T/lmoZ Debts, yet he is intitled to the Surplus, which will go verfus Euri zo his Reprefcntativcs ; and as to this AlTignment, not- "/ "ir' ■ withlfanding it was voluntary, I cannot but think It did bind the Property ; for there might be Time fpent, and Delays ufed, before the Husband cc')uld recover this perlonal Eilate in Equity ; but the Delays of Suits ought not to turn to his Prejudice. And with Re- I fpea De Term. S. Michaelis, 17 17. 381 fpe6l: to the Clauie in the Statute of Frauds, the Ex- ception does not confine it to the Life of the Husband, or to the Circumftance of his having reduced any Part of the Wife's Perfonal Ellate into Poflellion, but provides, that no Part of her Eftate lliali be diitri- biitable amongft her Rehitions after her Death. So that it feems reafonable the Allignment fhould be taken to alter the Property ; belides, that it is the very Ground of the Difference, that Chofes in Aftion are aflignable in Equity, though not at Law; and this Matter feems to have been decided by the Spiritual Court in Favour of the Husband and his Reprefenta- tives, by that Court's granting Adminiftration de bonis non of Grace Hatche?- to the next of Kin of the Huf- band : Wherefore Decree the Benefit of Grace Hatcher's Share of her deceafed Siller's Perfonal Eftate to the Adminiilratrix of Hatcher the Husband. See the Cafe of Cart and Rees in Michaelmas (a) i^)h'''^^ ^ ^ 2,7 Wov. Term 1718. where this ftronger Cafe happened, (-y/^.) A Wife died poffeffed of Chofes in Aftion, and the Husband fiirvived, and died without taking out Letters of Adminiftration to his Wife, after which, the next of Kin of the Wife adminiftred to her, and Lord Parker held, that the Admin iftrator to the Wife was but a Truftee for the Executor of the Huft^and, the Right to the Wife's Chofes in Ailion being, by the Sta- tute of Diftribution, vefted in. the Husband, as next of Kin to the Wife; and whereas there is a Pro- vifo in 29 Car. 2. faying, that the Statute of Diftribu- tion fhall not extend to the Eftates of Feme Coverts that die inteftate, but that their Husbands may have Adminiftration of their Perfonal Eftate, as before the making the A£1: 5 E His ^82. DeTerm. S. Michae/is, 17 17. His Lordftiip fald, this Claufe was made in Favour of the Husband, and not to his Prejudice ; fo that it was intended by the Parliament, that the Husband Ihould be within the Statute of Diftribution, fo as to take the Wife's Chofes in Aftion, as to his Benefit, but Ihould not be within the fame, as to his Prejudice ; and that this was not a new Point, but had been fettled, and upon very good Reafon; for were the Conftrudion to be otherwife, the Hufband of the Wife inteftate, would be in a worfe Cafe than the next of Kin, though ever fo remote, which was not the Intent of the Statute. And there Mr. Vernon cited this Cafe of Lady Aijcough, wherein he faid Lord Corvpers Opinion was the fame with Lord Parkers, (vi^.) that the Wife's Chofes in A£lion did veil in the Hufband by the Sta- tute of Diilribution ; fo that lince this Refolution, the (a) Include?. Right of Admiuiftration (a) follows the Right to the Eftate, and ought, in Cafe of the Hufband's Death after the Wife, to be granted to the next of Kin to the Hufband, in the fame Manner, as it is granted to a refiduary Legatee. Cafe ICO. Jacohfon 6" af verfus WiUianu. Lord Chan- cellar Cow- ^'- fy^L TER WalUnger by his Will left to his Niece Eli- Cafes iti ^nbeth Tayleur an Infant, icoo/. payable after the Eq- 54. Death of the Teftator's Wife, and at his faid Niece's cCc more relating to Age of twcuty Years, if Ihe fhould live fo long. this Cafe in the Cafe of Richmond verCui Tiiyliitr poft. Husband before he hath received the Wife's For- tune becomes .1 Bankrupt, the Allignces fliall not receive it, without making fome Provi« fion for the Wife. The Niece married J. S. without the Knowledge or Confent of her Father, J. S. being at that Time much ^ ^ in De Term. S. Michaelis, 17 17. 383 in Debt by Judgment, and otherwlfe, and bavins; gained the young Gentlewoman's Content by bribins^ her Maid-Servant j the Niece was about eighteen Years of Age. Soon after the Marriage, J. S. became a Bankrupt, and the Commilhoners of Bankruptcy afligned over all the Eilate and Effedb of the Bankrupt to the Plain- tiffs, in Truft for the Creditors, who brought their Bill tor this Legacy, the legator's Widow being dead, and the Niece being above twenty Years oldj and confe- quenily the Legacy due ; and the Bankrupt had two Children by his Wife then living. This Caufe coming on before Baron Price, in the Abfence ot the Lord Chancellor, the Baron, in regard to Creditors, did decree the Legacy and Intereft to be paid to the Plaintiffs. But upon an Appeal from that Decree to the Lord Chancellor, his Lordlhip declared, that forafmuch as the Plaintiffs the Aflignees in the Commiilion claim- ed under the Bankrupt, they ought not to be in a bet- ter (a) Cafe than the Bankrupt himfelf; and fince,- W Poft J5o/- if he had brought a Bill for this Legacy, the Court 'BraZlr''.^ would not have allowed it him, without obliging him, at the fame Time, to make fome Provifion for the Wife and Children ; fo for the fame Reafon, when thefe claiming under the Bankrupt, and who muft be exa6lly in the fame Cafe as he himfelf would have been in, came for Equity, th&y ought to do Equityj which would be to provide for the Wife and Children of the Bankrupt, from whom they derived their Claim.. But with regard to the Interefl of the Money, as the Bankrupt commonly^ was allowed to receive that, fo the Alfignees ought to receive the fame during the Bank- rupt's •384 De Term. S. Michaelis, 17 1 7. rupt's Life. Alfo, if the Bankrupt's Wife fnoiild die with- out lilue, then the Bankrupt would have been allowed to receive the whole Money ; and therefore, in fuch Cafe, the Aflienees fhould be allowed to receive it alfo. b" As to the Objeftion, that the Affignment was made by the Commillioners before any Right to the Legacy vefted in the Wife, {vi^i.) before fhe was rwenty, fo that at that Time the Legacy was not vefted, and, by Pollibility, might never veft, forafmuch as Ihe might have died before twenty ; t.ord Chancellor faid, that was not to be fo much re- garded ; becaufe the Commilfioners might fupply it by making a new Ailignment, tho' (it was true) fuch new Alfignment would not help this Bill, fo as to intitle the Plaintiffs to any Decree thereon. That he took it for granted, there were no Prece- dents in this Cafe, there being none cited on either Side, and therefore the Court was at Liberty to judge upon the Reafon of the Thing ; but however, a Judge having given a contrary Opinion, he would take Time to confider of it. And on the Caufe's coming on again, Mr. Venton., {au Vern. foj. the Defendant, cited the Cafe of Taylor and {a) Whee-^ See this Cafe /^r, where ^ mortgaged a Copyhold for a confiderable tnte'^'pLi, ^^"^ ^^ Money, but the Conveyance was defective for verfus Earl want of a Surrender being prefented in Time, after of^ incH- ^yhJch A became a Bankrupt, and the Court helped the jMortgagee of the Copyhold againft the x\ilignees under the Commiffion, which he urged to be an Argument, that the Creditors or Aflignees of the Commilfioners are not to be regarded as Purchafers. I It De Term. S. Michaelis, 1.7 17. ^^^ It was moreover obferved to the Court, that the Bankrupt had, in this Cafe, gained his Certificate, and was difcharged, and that the Ailignment made to the Complainants being before the Legacy was veiled, if they could not now fupply the Ailignment by making a new one, the Confequence was, that the Legacy was become veiled in the Bankrupt. But the Lord Chancellor replied, that this not ap- pearing in the Pleadings, he could take no Notice of it. ' Neverthelefs, at another Day, the Fa£l being made Po/nbiiity of to appear by a Petition, with the Certificate of the ^Ifg^^jg"' Commiflioners, and the Allowance of the Lord Chan- Bankrupt cellor Harcoun annexed, the Court faid, it was clear, bie! * '^"'^ the Commiflioners could not aflign this Poilibility of Right which the Bankrupt had to the Portion, and confequently the Aflignees being Plaintiffs in the Bill, and intitling themfelves under this Aflignment, and this Ailignment being void, with Refpe6l to fuch (*) Poffi- 5 F bility to a (*) But the Reafon given above, viz. becaufe the Bankrupt the Huf- band could not have come at his Wife's Portion without the AITiflance of a Court of Equity, which would not have decreed it to him, but on his making fome Provifion for his Wife, feems to have been the befl Foundation for this Decree -, fince a Poffibility or contingent Interclt is certainly aJTignable by the CommifTioners. Thus in the Cafe of Higden verfus JVilliamfon, firft heard at the Rolls Mich. 1731. and afterwards Affirmed by Lord Chancellor A'nTg- in Mich. 1732. the Cafe in EfFe«5t was. An Eftate was devifed to be fold, and the Monies arifing from fuch S.de to be divided amongil fuch of the Children of A. as fhould be living at //.'s D.ath ; yl. had feveral Children, one. of whom, viz. B. became a Bankrupt, and the Commiffioners alTigned over his Eftate, after which B. got his Certificate allowed, and then J. died. Decreed that this Share of the Money, which on y/.'s Death belonged to B. fliould be paid to the Commiffioners ; for that not only the latter Statutes relating to Bankrupts, mention the Word [Poffibility] -, but alio, becaufe the 13 E!iz. cap. y.feil. 2. impowcrs the Commiflioners to afflgn all that the Bank- rupt migk depart zvi/h, ant} .here B. in die. Life-time of J. might have releafed this connngent Intcreft. Bifides, the 21 Jac. i. cap. 19. enadts, that the Statutes relating to Bankrupts lliall be conftrued in the moft be- neficial Manner for Creditors. 386 De Term. S. Michaelis, 17 17. bility, therefore the Bill muft be difmilTed, but with- out Cofts, becaufe the Plaintiffs were Creditors. Commif- Afterwards in Tr'm. Term 171 8. the Wife oi J.S. iioners of j^ J ^^^^^ Friend, havins; brought a Bill fetting forth Bankruptcy J rii* i* • ii r having made her being leduced into this Marriage, and the Huf- """ ^"SV hand's Bankruptcy, together with the Certificate for ment Bankrupt's his Difchargc, prayed, that the Money might be put afte^rwarTs ^^^ '^^^ ^^^ feparatc Ufe for her Life, and afterwards given the for her Children ; to which the Husband putting in Certificate '^ his Anfwcr, and declaring himfelf fenfible of his ha- and Dif- ^.jj^p. JnJQj-ed his Wife, in Manner as above, fubmitted charge, can- . i r i i mi i i not make a to what was dciircd by the Bill, only he prayed the «g=.. Arrears of Intereft. On the other Hand, the Aflignees oppofed the Bill, infilling, that the Commillioners might ft ill make a new Aflignment of this, which was now, and not be- fore, vefted. But by Lord Chancellor Varker : The Commiflioners h^ve executed their Power, and the Debts, which the Husband the Bankrupt owed to the Creditors before the Bankruptcy, are now extin£l: by A£1 of Parliament, and this Portion is as a new acquired Eftate by the Husband, in Right of his Wife. Wherefore, fince the Husband agrees to this Prayer of the Wife's Bill, (which is but a reafonable Repara- tion for the Wrong he has done her,) Decree the Husband the Arrears of Intereft, deduc- ing the Cofts, and let the Legacy be laid out in a Purchafe ; and in the mean Time, let the Wife have the Intereft for her feparate Ufe, ^c. By which Means the whole Legacy was faved to the Wife and to her fe- parate Ufe. 4 Elje De Term. S. Mlchaelis, 1717. 387 Elfe verfus Osborn. caferor. Lord Chan- A Makes a Settlement to the Ufe of hlmfelf for "f '' ^""^^ ninety-nine Years (if he fo long live), Remainder aVern.ys^. to Truftees and their Heirs during his Life, ^c. Re- ^.fettles to mainder to the Ufe of the Heirs of his Body, Remainder ^he uie of to himfelf in Fee ; A. has two Sons, and A. and the nlll'ety-nine Truftees, and the eldeft Son when of Age, join in a J^=^^^' '^'^^ Feoffment and Fine to B. in Fee, as a Security for fo long live, much Money ; the eldeft Son dies without IfTue, and t^^^Sf "^ the fecond Son brings a Bill to fet alide this Mortgage, during his Life, is'c. Remainder to the Heirs of his Body, Remainder to A. in Fee ; A. has two Sons, and A. and the Truftees and the eldeft Son join in a Mortgage by Feoffment, and the eldeft dies without IfTue; the fecond Son, during the Life of the Father, has no Pretence to fet afidc the Mortgage ; tho' this fcems a Breach of Tiuft in the Truftees. Lord Chancellor: This Is plainly a contingent Re- mainder, being limited to the Heirs of the Body of A. who can have no Heir during his Life ; for Jslemo efi h^res viventis ; and it is as plain^ that this Feoff- ment does at Law deftroy the contingent Remainder, in regard the Truftees, who had the Freehold, joined. But it may be here a Queftion, whether this be a Breach of Truft in the Truftees? It is true, if the eldeft Son joins in a Feoffment, where the Remainder in Tail is limited to the eldejl Sm, it prevents any Breach of Truft in the Truftees ; bur here the Limitation being to the Heirs of the Body of A. who cannot have an Heir pf his Body during his own Life, therefore the joining of the eldeft Son is not, in this Cafe, fo material. And yet it feems hard, when the Heir apparent joins, in a Cafe where it would be no Breach of Truft if the Limitation were to the eldeft Son, that it ftiould 388 De Term. X Mich ae lis, 17 17. fhould be a Breach of Truft, in refped of the Limita- tion to the Heir. However, the Meaning of the Limitation, in the principal Cafe, is, to carry the Settlement as far as may be, and beyond the Limitation to the firft Son, and the Truftees appointed to preferve the contingent Remain- ders, ought not to join in deftroying thefe Remainders, (fl)Videante which is a£ling the {a) Reverfe of their Truft. the Cafes of Pye verfus Gorge, Bajfct verfus Clapham, & poft Manfell verfus Manfell. But after all, as to the prefent Bill, it is clear, the fecond Son, tho' he has furvived the eldeft, yet has no Right to bring it in the Father's Life-time; for he neither is, nor poliibly ever will be, the Heir of his Fa- ther, unlefs he iurvives his Father, which- is uncertain. Plume verfus Beale. A Bill was brought by the Executor of Dodor •^ •*■ Plume, to be relieved againft a Legacy of lOo/. claimed by the Defendant Beale, as given by the Will of Do£lor Plume. Cafe 102. Lard Chan- cellorCow- per. Executor proves a Will of a perfonal E- ftate, wheie- in one of the Legacies is forged, the Executor has no Remedy in Equity, but ought to have proved tJie Will, with a fpecial Refervation as to that Legacy. : The Defendant Beale was no Relation to the Doftor, nor had done him any Service, faving that now and then Ihe had, during his Illnefs, brought him fome few llight Cordials, in Return for which, the Do£lor had ordered her a Piece of Plate. This 1 00 /. Legacy was interlined in the Will by a different Hand, and fuppofed to have been done by the Defendant herfelf, when Ihe was left in the Room alone with the Corps, in which Room the Will was left. .4 But De Term. S. Michaclis, 1717. 389 But forafmuch as the Will was proved by the Plain- tiff the Executor in a proper Court, that had a proper {a) Jurifdiflion, (it relating only to a perfonal Eftace,)(a) 2 v, and more efpecially, for that the Executor might have ^' ''"• proved the Will in the Spiritual Court, with a parti- nvaius vei- cular Refervation as to this Legacy, the Court faid, ^^" '^'J"^;^. his Remedy muil be there, and difmilTed the Bill w'lih ph(»to,i ver- Colts. ern. o Seeley verfus Jaio. cafe 103. cellor Cow- NE devifed that looo/. fliould be laid out in a p"- Purchafe of Lands in Fee, to be fettled upon A. 0"edevifes . '■ ■.. 1000/. to B. and C. and their Heirs, equally to be divided; A. dies be laid out in leaving an Infant Heir ; and B. and C. together with ^f i!!iiin the Infant Heir, bring a Bill for this lOOo/. Fee for the * Benefit of ^. B. and C. and their Heirs, equally to be divided ; A. dies leaving an Infant Heir ; B, and C. may have their Share paid them in Money, but the Infant cannot. Lord Chancellor : The Money being direfled to be laid out in Lands for A. B. and C. equally^ (which makes them Tenants in Common,) and B. and C. ele6ling to have their two Thirds in Money, let it be paid to them ; for it is in vain to lay out this Money in Land for B. and C. when the next Moment they may turn it into Money, and Equity, like Nature, will do no- thing in {a) vain. (a) Ante Benfmt verfus Benfon ; poft Short verfus Jfoid. But as to the Share of the Jnfant, that muft be brought before the Mafter, and put out for the Benefit of the Infant, who, by reafon of his Infancy, is in- capable of making an Ele£lion. Befides, that fuch Ele6lion might, were he to die during his Infancy, be prejudicial to his Heir. 5 G D E 390 D E Term. S. Hillarii, 1717. Cafe 104. Star key verfus Brooks. Lord Chan- cellor Cow- per. '1^ HI LIP Starkey^ being felfed in Fee, devifes his Onedevifes Lands to two Gentlemen of his Acquaintance, Lands to his ^but who werc not of Kin to him,) and their Heirs, fwho"arTno in Truft to be fold by them, or the Survivor of them, Relations,) for the bcft Price, and with the Money to pay his Debts, the beft Legacies and Funerals, fo far as the iame will extend, Price, and ^^^^ amoug Other Legacies, he gives 40 /. to Jane Stiles, Debtl, Le- and 10/. to Elizabeth Stiles, (who were his Coulins and gacies and (johcirsj and makes the two Devifees Executors, eiving Funerals, fo i i -i i r r i ' o o far as the I oo /. to the Children or one or them. fame will extend, and gives Legacies to his Heirs at Law, and lOO /. to the Children of one of his Ex- ecutors, but nothing to his Executors; in fuch Cafe the Executors fliall be but Truftees for the Heirs at Law, after Debts paid. The Surplus of the Money ariling by the Sale being 500 /. the Queilion was, whether it fhould go to the Truftees who were alfo Executors, or to the Heirs at Law, who, in this Cafe, brought a Bill againft the Ex- ecutors, for an Account of the Surplus. On Behalf of the Devifees the Executors, it was objefted, that here were exprefs Legacies given to the I Coheirs De Term. S, Hill. 1 7 17. 391 Coheirs, which implied, that they fiiould have no more, and the Cafe of Crompton verfus Norths Chan. Rep. I 96. was faid to be in Point ; alfo, in this Cafe, as there were Legacies given to the Heirs at Law, fo on the other Hand nothing was left to the Executors. Lord Chancellor : In Cafes of this Nature, the Cir- cumftances mull govern : Now the chief Obje£lion is, that here are exprefs Legacies giv^en to the Heirs at Law, and none to the Executors ; but the Will being, that the Executors fliould fell the Eftate for the beft Price that they could get for the fame, this Claufe need not to have been put in, if the Devifees were intended to be Owners. Befides, fuppofing the perfonal Eftate had been fuf- ficient to have paid the Debts, and that there had been no need of any Sale, furely the Devifees Ihould not, in fuch Cafe, have gone away with the Eftate from the Heir at Law. It is material alfo, that the Truftees are to apply the Money ariiing by the Sale in Payments of Debts, Legacies and Funerals, by which is implied the whole Money, and that Ihews it was not defigned to be a beneficial Truft. Again, deviling the Eftate, and Power of Sale to the Survivor, is a farther Argument of its being ra- ther a I'ruft than an Ownerftiip, and that the Truft was intended to follow the Eftate. Wherefore let the Devifees account for the Surplus to the Heirs at Law. Jenner Ipi De Term. S. Hill. 17 17. Cafe 105. Lord Chan- cellor Cow- per. Tenant for Life leafes jenner verfus Morgan. TH E Father being Tenant for Life, Remainder in Tail to the Son the Plaintiff, the Father was indebt- for Years, ed by fcvcral Judgments, and his Land extended by J. S. R^nrhaif- ^ Judgment Creditor, who leafed the fame to the Defen- yeariy, and dant, rendering 1 60 /. per Annum payable quarterly. dies in the Middle of the Half-year, Equity will not apportion the Rent, as to Time. March 6. 171c. the Father the Tenant for Life died, and the Defendant the Tenant continuing in Polfeflion until after the Lady-day following; It was infilled for the Plaintiff, that the Lady- days Rent (being 40 /.) ought to be paid to the Plain- tiff by the Defendant the Tenant, for that the Defen- dant, by his holding over, fhewed his Eleftion to con- tinue I'enant at Will to the Plaintiff the Son ; and that this could be no Hardlhip on the Tenant, fince in all Events he ought to pay his Rent to (a) fome Perfon, and J. S. the Judgment Creditor could have no (a) Vide ante Lord Strafford verfus Lady Pretence to the Lady-days Rent ; and tho', in this Cafe, the Tenant for Life died 6 March, the Reafon had been the fame, if he had died the Day after Chrifi- mas'day. Lord Chancellor : There are feveral remedial Statutes relating to Rents, but this is Cafus omi(Jus ; the Law {b) I Inft. Joes not apportion Rent, in Point of (/>} Time, and 1 ioRep!i28. do not know that (c) Equity ever did it ; this is an Ac- cident which the Judgment Creditor might have guarded I againfl {c) But Equity will apix)rtion Intereft on a Mortgage ; vide poft Ed- wards verfus Countefs of IVarwuk ; alfo Maintenance-Money, poft Hc.y verfus Palmer. Vide alfo the 1 1 rh of his prefent Majefty, by v/hich Rent is apportioned in Point of 1 iirie. De Term. S. Hill. 17 17. 393 agalnft, by referving the Rent weekly ; fo that it is his Fault, and becomes a Gift in Law to the lenant. Whereupon the Court held, that as to the Profits from the End of the laft Qiiarter, to the Death of the Tenant for Life, the Tenant fhould pay nothing; but for the Profits, from the Death of the Tenant for Life, the Tenant the Under-LefTee was to account to the Plaintiff; and with regard to the Notion, that the I'e- nant's remaining in PoiTelTion, fhewed his Ele£lion to continue at the old Rent ; this, the Court faid, only ftiewed his Election from that Time, and not from the End of the preceding Qiiarter-Day. Mocatta &' at verfus Murgatroyd. care 106. Lord Chart' N Owner of a Ship mortgages his Ship to A. '^'ith.'^J'^ whom he leaves the orisinal Bill of Sale, and this A Mortgage to A. is made by a Deed of Mortgage only, without any Indorfement, or Notice of the Mortgage on the Bill of Sale, as is ufual. Afterwards the Mortgagor defired J. the Mortgagee, to let him have the original Bill of Sale, which was complied with, and thereupon the Mortgagor made fe- veral fubfequent Mortgages of feveral Parts of the Ship, which were indorfed upon the original Bill of Sale, and fometime afterwards the Mortgagor delivered up the Bill of Sale to A. the Mortgagee, who made no Objec- tion, or Complaint of thefe Indprfements ; it appeared likewife in the Cafe, that the Owner of the Ship had made a prior Mortgage to this of A's, by a Deed bear- ing Date the Day before, but that the prior Mortgagee was a Witnefs to the Mortgage-Deed made to A. alfo A. the Mortgagee fometime afterwards took a Releafe, from the Mortgagor, of his Equity of Redemption. 5 H In ^94 ^^ Term. S. Hill 17 17. I ■ 11' - H ill .■■,— .. -■. Ill In which Cafe, thefe Points were decreed by the Lord Chancellor: Where a ifi, That thc firft Mortgagee of the Ship being a lfee^s°a" W'tnefs to the fecond Mortgage, tho' it did not ap- Witnefs to pear, that he a£lually knew the Contents of the fe- Moftgage, cond Mortgage, yet fince it did not appear, but that tho' no ac- he might know them, it would be prefumed, that h'is'' knowin^g cvcry Witncfs that could write or read, was acquainted the Contents ^y\^)^ ^j-,g Sublhuce of thc Dccd or Inttrument, which fin^ed'e^ he, having attefted it, undertook to fupport by his Evi- r^hTt^he" d^rice; and that therefore, in the principal Cafe, the firft might have Mortgagee being a Witnefs to the fecond Mortgage, and famr^thlr ^^^ acquainting the fecond Mortgagee with his former fliaii port- Mortgage, this Ihould give a (a) Preference to the fe- cond Mortgage. pone iiim. Mortgagee ^dlv. That wheu A. the Mortg-agee was fo carelefs, as of a Ship .ni •i?"*iT>-iiri by Deed in- to intruit the Mortgagor with the original Bill or Sale, Mo?t/);, In this Cafe A. the Mortgagee was ordered to Mortgagee pay Corts to the Plaintiffs, who were Indorfees of the ^^" "°^°- llibfequent Mortgages or Bills of Sale ; but A. was not Pledge with to have his Colls over, apainll the firft Morrpa'- Special Verdi£l in Eje£lment upon this Cafe : One Devife to feifed in Fee deviled the Lands to A. and his IlTue, if^lcf Remainder to B. and his Iflue, Remainder to the Heirs m-'indcr to of A. A. died without IfTue, in the Life of the Telk- jj^e r^-' tor, and B. died in the Life of the Teftator, leaving mainder to IlTue the Defendant, who was alfo the Heir of A» of a^ J. and the Plaintiff in Eie£lment was the Heir of the 'j'^s ^.'thout ., •' lilue in the TeltatOr. Life of the Teftator j B. dies in the Life of the Teftator, leaving Iflue who is alfo the Heir of A. The Ifliie fhill not take an Eftate-Tail as Iflue of B. nor the Remainder in Fee as Heir of A. The Qiieftion was, whether, in regard the DevifeeSj A. and B. died in the Life of the Teftator, the IlTue of B. (who was born after the making of the Will, and fo could not take jointly with the Devifees,) could take, either as Heir of the Body of B. or as right Heir of A ? x\nd the Opinion of the whole Court was thus de- livered by C. J. Parker. This Cafe is exadly within the Reafon of Bret and Rig dm s Odit^. Plowd. 340. \fl, Becaufe, as well in this Cafe, the Word [ifTuej as in that, the Word [Heirs] is clearly ufed as a Word of Limitation, vi^i. to meafure out the Qiiantity of Eftate that the Devifee is to take, and not as a Word of Purchafe, the Devifee only being in the View and Conlideration of ti)e Teftator, and the Words, [Heir, or Iftiie,] mentioned for nothing elfe, but to limit K I what ^98 DeTerm. S. Hill. 1717. \ what Eftate the Devifee fhould take, and there is no DIverfity betwixt a Devilee in Fee, and a Devifee in Tail; the Statute of Weflminjler the Second makes none ; for that only provides for the liTue, in Cafe where an Ellate-Tail is aflually created and vefted, but makes no Diverfity at all in the Rules of Law con- cerning the Creation of Eftates-Tail, which arc exatlly the fame, as to the Intent of the Devifor, or as to the vefling the Eftate, as thofe relating to Eftates in lee-Simple ; the Statute de Bonis was made for the Benefit of the IlTue in Tail, which fuppofes an Eftate in Tail in the Anceftor (which is the Qtieftion here); and the Statute de Donis is called the Nurfe, and not the Mother of Eftates-Tail. zdly, Becaufe the Heir in Tail is abfolutely in the Power of the Anceftor, to be barred by him (lince the Statute of 4 R 7. of Fines, and the Conftrufiion of Law, which eftabliflies common Recoveries,) as much as the Heir in Fee-Simple is in the Power of his An- ceftor; and therefore, as well in Cafe of an Eftate Tail, as of a Fee-Simple, the Devifor cannot be in- tended to have had any Confideration for, or regard to, the Heir, fince in both Cafes the Devifor gives the Devifee fuch an Eftate, as enables him abfolutely to bar his Heir. 7,dly, Another Reafon why the Heir cannot take, when the Devifee dies in the Life of the Devifor, is, becaufe he cannot take by Defcent, for that nothing was ever in the Anceftor ; and if he fhould take as a Purchafor, then the Eftate would be defcendible con- trary to the Intent of the Devifor ; for if the Anceftor had taken the Eftate, and it had defcended to the Heir, (rt).Vide the Rules of Defcent had been quite different (a) taken as a Purchafor. Then, as to the Remainder in 4 Fee De Term. S. HilL 17 17. 399 Fee limited to the Heirs of A. it is alio the Opinion of the Court, that the Heir General cannot take it; for the Interpofition of the Eftate-Tail to B. betwixt the Eftate-Tail limited to A. and the Remainder in Fee limited to his right Heirs, makes no Difference; be- caufe, notvvithftanding the mean Remainder, the Word [Keirs] is a Word of Limitation of Eftate, and the Fee-Simple vefts in the Anceftor. i Infl. ii. b. 319.^. And if A. had furvived the Teftator, the Remainder in Fee would have vefted in him ; and therefore it is within the Reafon of Bret and Rigdens Cafe ; and the Rule laid down in i Co. SheUeys Cafe, (w^.) whe- ther the Limitation to the right Heirs be mediate, or immediate, yet where the Anceftor has before an (^ chefler, as of his Manor of Taunton-Dem in hJkiTa S Somcrjctjlnre, in which Lands there was a Copper Mine for an Ac- that was Opened by the Tenant, who dug thereout, and Oar"d°2, f«lJ gJ'eat Qiiantltles, of Copper Oar, and died, and his or Timber jj^jj- continued digging and diipoiing of great Qiianti- fe"ndant's ^' tIes of Coppcr Oar out of the faid Mine. Teftator ; otherwife of plowing up Meadow or ancient Pafture, or fuch Torts as die with the Perfcn. The Bilhop of Winchefler brought a Bill in Equity againft the Executor and Heir, praying an Account of the faid Oar, and alledging, that thele Cuftomary Te- nants were as Copyhold Tenants, and that the Free- hold was in the Biihop, as Lord of the Manor and Owner of the Soil, and that the Manner of pafting the Premiffes was, by Surrender into the Hands of the Lord, to the Ufe of the Surrenderee. On the other Side it was faid, that it did not appear the Admittance, In this Caie, was to hold nd voluntatem Dominiy fecimdum Confuetudinem, iyc. without which Words l^ad voluntatem Domini^ it was infifted, there 5 could De Term. S. Hill. I'jiy. 407 could be no Copyhold, as had been adjudged (a) in ('')^a'k-36s. Lord C. J. HoU's Time. vc^us ow- Carth. 432. Gale verfus AUU. Then, as to the Oar du^ In the Anceftor's Life-Time, there was no Colour to ask Relief ; becaufe this beins a Perfonal Tort, the fame died with the Perfon, and that with Refpeft to the Oar dug in the Heir's own Time, there could be no Remedy ; for that thefe Cuftomary Tenants were as Freeholders, and there was full Proof, that they, from Time to Time, had ufed to cut down and fell Timber from off the PremifTes, and had alio dug Stone and fold it. Lord Chancellor: It would be a Reproach to Equity, to lay, where a Man has taken my Property, as my Oar, or Timber, and difpofed of it in his Life-Time, and dies, that, in this Cafe, I muft be without Re- medy. It is true, as to the Trefpafs of breaking up Mea- dow, or ancient PalHire Ground, it dies with the Per- fon ; but as to the Property of the Oar, or Timber, it Would be clear even at Law, if it came to the Execu- tor's Hands, that Trover would lie for it ; and if it has been difpofed of in the Teftator's Life-Time, the Exe- cutor, if Aflets are left, ought to anfwer for it; but it is Wronger in this Caie, by reafon that the Tenant is a Sort of a Fiduciary to the Lord, and it is a Breach of the TrulT: which the Law repofes in the Tenant, for him to take away the Property, of the Lord ; fo that I am clear of Opinion, the Executor, in luch a Caie, is anfwerable. As to the Evidence that the Tenant might do one Sort of Waiie, as to cut down and difpofe of the Tim- ber, this might be by Special Grant ; but it is no Evi- dence 4o8 DeTerm. S. Hill. 1717- dence that the Tenant has a Power to commit any other Sort of Wafte, (x'/s:-) Wafte of a different -Species, as that of difpofmg of Minerals 5 but a Cuftom impowering the Tenants to difpoie of one Sort of Mineral, as Coals, may be an Evidence of their right to difpofe of another Sort of Mineral, as Lead out of a Mine. But this Qiieftion being doubtful, and at Law, let the Bifhop bring his Action of Trover as to the Oar dug and difpofed of by the prefent Tenant. Accordingly this was tried, and there never having been any Mine of Copper before difcovered in the Ma- nor, the Jury could not find, that the cuftomary Tenant mi«ht, by Cuftom, dig and open new Copper Mines ; fo that upon the producing ot the Pofle.i, the Court held, that neither the Tenant without the Licence of the Lord, nor the Lord without the Confent of the Tenant, could dig in thefe Copper Mines, being new Mines. '^"'■="'' Chanceys Cafe. At the Rolls. ^ -^ SdebSw O -^ ^^ ^^'"S Indebted for Wages to a Maid Servant, his Servant ^^-^ who had Uvcd with him for a conliderable Time, ln^ooT' gave her a Bond for lOO /. and in the Condition of the gives her a Bond, it appeared to be for Wages; afterwards the loo/.asdileTeftator by his Will, among other Things, gave a Le- for Wages, ^^^y ^^^ 5 00/. to tliis Maid-Scrvaut, and it was men- wards by tioned in the Will to be given to her for her long and Z^^oot f^'ifH Services. The Maid-Servant having, on her tor her long Maller's Death, poflefled herfelf oi divers Goods that Services''/"' ^^'^J'e ^^i^, the Plaintiff Chancey, who was the Executor, This is not a brought his Bill againft her for an Account, but paid to for the Bond, her the i oo /. and Intereit fec^ired to her by the Bond. 5 For De Term. S. Hill. 17 17. 409 For the Defendant it was obje£led, that fhe fliould have both the Money due on the Bond, and alfo the Le- gacy ; for the Legacy was a further Reward for her Ser- vices, and intended to be a Gift in mo : Whereas if the Bond were to be taken out of it, it would be only a Gift of 4CC /. and as to the old Notion, that the Teftator muft be juft, before he is bountiful, that was nothing, where the Teftator had wherewithal to be both juft {a) (^)Saik and bountiful. 155. Belides, that this was not infifted upon by the Bill, fo that the Defendant had no Notice or Warning to prove, that the Teftator intended to give her the full Legacy of 500/. over and above the Bond: Which Proof (though by Parol only) had yet been frequently admitted. Alfo, for that it appeared the Executor hinifelf had paid the Bond, and taken a Receipt for it. Mafler of the Rolls : It is lufticient that it appears the Creditor has a greater Legacy given her, and the Plaintift' the Executor prays Relief, which is as much as if he had prayed, that he might not be compelled to pay both the Debt and Legacy. This is ftronger than the ufual Cafe ; for the Bond h for Service, and the 500/. Legacy is difo for Service; fo that it is a greater Reward and Satisfa6lion for the fame Thing; neither is it material that the Executor has paid it, for he was bound to pay the Bond at Law, and his only Method is, to ftop it out of the Legacy ; but clearly, fuch a Legacy is not a Satisfa6lion for Ser- vice done to the Teftator (b) after the making of the (*) ^'''^- Will. ^ "''■'°'- T M This 410 De Term. S. Hill. 17 17. * Trinity T\yi't, Dccrec was after\\^ards "*'' reverfed by Lord ^'^^' Chancellor King^ upon which Occafion his LorJiliip faid, he was not for breaking in upon any ge- neral Rule, though he did not lee any great Reafon, why, if one owed icol. to A. by Bond, and lliould afterwards give him a Legacy of 500/. this Legacy mult go in Satisfa(i1:ion of the Debt ; for if fo, the whole 500 /. would not be given^ in regard 100 /. of it would be paid towards a jull Debt which the Teftator. could not help paying; and therefore the wdiole 500 /. would not be given, againft the exprefs Declaration of the Teftator, who fays ht gives the fame; and though it feenied .to ha\'e obtained as a Rule, that a Man lliould be juft before he is bountiful, yet when a Man left luch an Eftate and Fund for his Debts and Legacies, as that he might thereout be both juft and bountiful, and elpe- cially, when there leemed to be not only an Intention, but alio exprefs Words to that Purpoie, in inch Cale his Lordlliip did not fee, but it would he as reafonable that the whole Legacy iliould take Efte£l as a Legacy, and that the Debt Ihould be paid befides. . And it was faid at the Bar, by Mr. Talbot, to have been a ftrange Refolution, that it I owe a Man 1 00 /. and give him 100/. Legacy, then I. give him nothing, but only pay him what I am bound to do; but if the Legacy be twenty Shillings lefs, (vi^) 99 /. here it is a good Gift and Legacy, exclulive of the Debt. How^ever, the Court faid, they were not, by this Refolution, overturning the General Rule : But that this Cale was attended with particular Circumftances varying it from the common Cale, (t?/;^.) 'I'hat the Teftator, by the exprefs \Vords of his Will, had devifed " that all his Debts and Legacies ftiould be paid ;" arid .4 thii' De Term. S. Hill. 1717. 411 this 100/. Bond being then a Debt, and the 500/. be- ing a Legacy, it was as ftrong, as if he had direded that both the Bond and Legacy fhould be paid; that when the Teftator gave a Bond for the 100/. Arrear of Wages, it was the fame Thing as paying it ; and as, if he had a£lually paid it, and had afterwards given the Legacy of 500/. the Executor could not have fetched back the 1 00 /. and made the Defendant refund, fo neither lliould the Bond in this Cafe be fatisfied by the Bequeft of the Legacy. His Lordfhip alfo obfcrved, that the Executor (the Plaintiff Mr. Chancey) did not himfelf take this 500/. Legacy to be a Satisfiflion for the Bond, as appeared by his having voluntarily paid the 100/. to the De- fendant, and that his Lordlhip was of the fame Opi- nion. So the Decree at the Rolls was reverfed, and the Defendant (the Maid-Servant) had both her Debt and Legacy. AnonymuT. Cafeii4. T T P O N a Petition to the Mafter of the Rolls, for Where e- ^*- Leave to file an Original, after a Writ of Error give^ Leave brought to reverfe a Judgment, His Honour, having ^ 'l'^ ^^ taken Time to conlider of it, and likewife of another and where Cafe, where, upon a Judgment by Confeflion, the Court gave fuch Leave, and having fpoken with Mr. Hetherington (an antient Officer of the Court) at length denied Leave to file the faid Original, faying, that where a Judgment is given by Confeffion, as the Defendant, in fuch Cafe, confents that there fhall be Judgment awarded againil him, fo does he likewife, by Impli- not. 4IZ De 7erm. S. Hill. 17 17. Implication, confent to all the)fe Means without wlilch the Judgment cannot be effe£l:ual, and confequently, that an Original fliall at any Time be filed, efpecially if fuch Judgment was given as a Security for Money, or other valuable Conlideration. But that it is other- wife where Judgment is given by Default, or on De- murrer, ^c. and that there is alfo a Difference where the OmiiTion proceeds from the Ignorance or Nefcience of the Clerk, and where it is by Miftake or Mifpriiion, [o) Vide for in the {a) former Cale it is not to be helped; and 7noriTczk, fi-ich Leave to file an Original as aforelaid, ought not 8 Co. 159. j-Q i^g given, without very ipecial Reafon ; for this would be a Wrong to the Crown, and to the Officer, no Ori- ginals being then likely to be filed, unleis where the Party fhould find himfelf in Danger of having his Judg- ment reverfed. The Court further declared, that they were the ra- ther induced to deny Leave to file an Original, in the Principal Cafe, in regard, if this Judgment were re- veried, (it being upon a Policy of Infurance,) the Plaintiff might begin a new Aftlon. Seciis^ had it been in a ^lare impedit^ or In an Acllon agalnff the Hun- dred for a Robbery, where the Suit mull be commenced within a (^) limited Time ; or If the Time had been fo far elapfed, as that the Statute of Limitations had been a Bar, if the Judgment ihould be reverfed. Afterwards In jfune 1 7 1 9. in another Caufe, on a Petition to the Malter of the Rolls for Leave to file an Original, upon Affidavit that the Plaintiff's Attorney had been ill, and difordered in his Head, by which 2 Means * Vid. 3 Lev. 347. Beachcroft verfus The Hundred of Burtihrni, where for this Reafon, (viz.) becaufe the Time for bringing the Action was clapfcd, the Court gave Leave to amend after KTue was joined, and the Jury had appeared at the Bar. De Term. S. Hill. I'Ji'j. 415 Means an Original was omitted to be filed ; and a Writ of Error being brought, in this Cafe, to reverfe the Judgment for want of fuch Original, in which Writ of Error Bail was given : Cur : Take Leave to file the Original, but pay the Cotts of the Writ of Error hitherto, and let the Bail in the Writ of Error be difchar^ed. 9 N, D E 414 D E 1 Term. Pafch^^ 17 I 8. Cafe 115. Cop el and verfus Stajiton. Where a A Witncfs OH the Part of the Defendant was fworn, S"Exa'^-" ^"*^ having appeared before the Examiner, was mination, examined to feveral Interrogatories, after which he fudi Exami- ^as appointed by the Examiner to come another Day ^ nation is but the next Morning was fuddenly taken ill, and figned by i- 1 • him, the diecl. Dep(S'itions cannot be made ufe of. Upon which, I moved the Mailer of the Roll-s, that this Witnefs's Depofitions, fo far as they were taken, might be made uie of, which, without the Order of the Court, could not be, the Witnefs not having figned his Examination. But his Honour, having advifed with Sir Thomas Getry, the Mafter then in Court, denied the Motion, for that the Examinations were imperfedl:, and could not be made ufe of It De Term, Pafcha, 1718. 419 It feems, after theWitnefs is fully examined, the Exa- minations are read over to him, and the Witnefs at Liberty to amend or aller any I'hing, after which he iigns them, and then (but not before) the Examina- tions are compleat, and good Evidence. In Michaelmas Term 1722. in the Cafe of Ddrox Bw vet, verfus ■ The Defendant, after an Order for Publi- )^';^"= '''^ cation, examined a Witnefs, and then firft conceiving after Pubii- himfeii irreiiular in examinino; this Witnefs fit bein" *'"'°"'/'''''' after Pubhcation) j^ot an Order (upon Petition and an "^vitnefs. Affidavit from himfclf, his Clerk in C:ourt and Solicitor, TlZ^^T _ ' uiu.li .ntnda- that ihey h:;d not, nor would lee any ci the DepolitionsJ ^'^ th:it the that he might re-examine the faid Witnefs; but before hifckr^o there could be a Re-examination of this Witnefs, he Solicitor died; and upon Affidavit of this, the Depofi" tions, got an Order to re-examine this Witnefs, hut the Witnefs died before a Re-exnminatlon, the Court ga\c Leave to the Defendant to make ufc of the former Defoiltions of tlie fame Witnefs. Lord Chancellor Parker ordered, that the Defendant might make iife of the Dcpofitions taken of this Wit- nefs, the Re-examination of him having been prevented by the A61 of God. or 7r afford verfus ^foton. ^'^^ "^- Lord Chan- /— N n r T 1 • r cfllor Parker. C T R Ralph A/fjtoK ieiled m Fee of a great Real Eftate Truftof a ^-^ in LancaJJj/re, upon his Marriage, fettled the fame ^^^f"^ ^° npon himfelf ibr Life, Remainder to his Wife for Life, tfonsout'of Remainder to Truilees for ninety-nine Years, Remain- ^^"'' ^"'^ der to his firft, i:fc. Son, Remainder to the firft and be paid a° every other Son of his Brother Richard Aflnon, in Tail '""^"! ^'^c'"- *- 1 r n- 1 vcnieiitly .Male lucceiliveh-. might be. The 4l6 De Term. Pafcha:, 1718. By Virtue 'p};^e Truft of the Term of ninety-nine Years was (Profits) ""^ declared to be, that if Sir Ralph Afiton flioiild die with- Trufte^ out IfTiie Male by the faid Marriage, and lliould leave mortgageT One or more Daughters, then the Truftees fhould, out of /ecus if Md I j^^^^j. ^yid Pj-ofts, raife 8000/. for the Daughters of annual rro- . i • i i r iits. that Marriage, to be paid them as foon as con-veniently could be, without limiting any exprefs Time when the Portions were payable ; but then a further 1 ruft of the Term was declared, that if there fhould be a Son and a Daughter or Daughters by the Marriage, in luch Cafe, the Truftees fnould, as foon as podible, raife 1 000 /. a-piece for the Daughters, payable at twenty-one or Marriage. Ill is Term of ninety-nine Years was not made without Impeachment of Wafte. Sir Ralp AJlMn"^ Lady dies firft, afterwards Sir Ralph dies without liTue Male, and leaving three Daughters (the Plaintiffs) all married, and the Remainder in Tail becomes vefted in the Defendant his Nephew, the preient Sir Ralph Ajhton. The Qiieftions were, firft^ Whether this 8 coo/. Ihould be railed otherwife than out of the yearly Rents and Profits, or bv Sale or Mortgage ? And idly^ Whether it Ihould carry Intereft, and from Yvdiat I'ime ? For the Defendant it was faid, that it was well known the three Daughters had a very great Eliate in I .and left them as Heirs General of this antient Family, and that it could not but be intended by the late Sir Ralph Affjton, that the Defendant, who was to fupporc his Name and Honour, who was his Nephew, and I whom De Term. Pafch^e, 17 1 8. 417 whom he had made as his adopted Son, lliould have wherewithal to live, and maintain the Honour. ^ That the 8000 /. being to be raifed by Rents and Profits, it mult be inttnAt<\ yearly Rents, and yearly Profits ; and if i^, it was plain there could be no Sale or Mortgage. That the Intention of the Settlement was, to pre- ferve the Eftate in the Name and Family, as long as might be ; and confequently not to fell or mortgage, or to give any Power for that Purpofe. That had it been fo intended, it would have been lo exprelTed, (t?/^.) that the Truftees might raile the Portions by Sale or Mortgage, and the rather, for that this was the general Way of penning Settlements. That the Term of ninety-nine Years not being made without Impeachment of Wafte, this was an Indication, that the Truftees were fo far from being invefted with a Power to fell any Part of the Eftate, that they were not intrufted with cutting down a Tree from off it. I'hat here was no certain Time limited when thefe Portions were payable, it being only faid, as foon as conveniently might be ; as ioon as conveniently ? I'hat is, with Convenience to the Nephew, aAd not fo as to di- ftrefs him. That if in fome Cafes the Word [Profits] was con- ftrued to extend to the Profits of the Land ariling by Sale, if ever Equity had gone fo far, it muft be, where an exprefs certain Time was limited ; and under thofe Circumllances, rather than not comply with fuch exprefs Limitation, land where the annual Profits would not raife it by that Time, the Court might conftruc 5 O the 418 De Term. Pafch^, 17 1 8. the Word [Profits] to extend to Profits by Sale; but never made fuch Conftruftion, where no exprefs Time was appointed, and where the Sum in convenient Time might be raifed. That in the Cafe of Mr. Byde of Ware-Park m Hertfordflnre, where a Portion was fecured to his Sifter, to be raifed by Rents and Profits, the Court did not only raife it by Rents, but confined the fame to fo much a Year, as that Mr. Byde might have whereupon to live out of the Refidue. idly, It was argued. That as to Intereft, where the Portion was to be paid out of the yearly Rents, ths Party muft take it fo; and there was no Default in Payment, there being no exprefs Time appointed for paying the Portion ; it was the Plaintiffs own Fault, if they would not enter; Vv'hereas if the Defendant was in no Default, he ought not to pay Intereft, in\he°Cafe '^^'^ Intereft is only given in (4) Default of Pay- of Butler ment. verfus Duncombe. On the other Side it was faid by Gounfel, and fo ruled by the Court, that the Daughters were Piirchafors of Portions, by their Mother's Marriage, and the Marriage Portion; but the Limitation to the Defendant, the pre- fent Sir Ralph Afhton, was voluntary. That the Meaning of the Word [Portion] was a Provifion for Marriage, but the leifurely way of railing IMoney by yearly Rents, would not anlwer fuch End. That the Words [Profits of Lands] efpecially when to pay Debts or Portions, implied any Profits that the Land would yield, either by felling or mortgaging ; and that this had been the conftant Conftru6lion in the like Cafes, and 2 Chan. Cafes 205. Lingen verfus Foley , was I cited De Term. Pafchce, 171 8. 419 cited, where L>ands were devifed to Truftees, in Trull: out of the Rents and Profits to pay Debts and Legacies, and the Truftees decreed to fell the Land itfelf ; as alfo 1 Chan. Cafes 176. where the Difference is taken be- twixt annual Profits, and Profits generally, and in which Place it appears from many Inftances, that where Daughters Portions were dire6led to be raifed out of Rents and Profits, and were made payable at a fixed Day, and the annual Profits would not raife the Por- tions by (a) that Day, the Court has decreed a Sale. ('?) Precej. Alfo the Cafe of (b) Warburton and Warbunon was 586.""*^ cited. [b] iVeni. 4.20. It was moreover infifted, that here was a certain Time appointed for Payment of the Portions, and that implied, though not exprelTed; r/^. it was faid, they ftiould be paid as foon as conveniently might be ; now that was prefemly, for the Daughters be- ing twenty-one at Sir Ralph J/Jjtons Death, and mar- riageable, it was then convenient they Ihould have their Portions. That though (c) yearly Profits might make a Dif- (') ^ ^cm. ference, yet here that was not material, the Word [yearly] being omitted. That the Portions being payable prefently on the Death of Sir Ralph, (the Daughters being then twenty- one ;) they confequently would carry Intereft, and the rather, lince they were to arife out of Land, which yielded yearly Rents and Profits. Lord Parker firther obferved, that by the Truft, if there were a Son and a Daughter, or Daughters by the Marriage, the Son Ihould pay Intereft to his Sifters for their Portions, from their Age of twenty-one or Mar- riage, and it could not be imagined that Sir Ralph would be 420 De Term. Pafcb^, 17 18. be kinder to his Nephew in excufing him from paying Intereft, than to his own Son, if he had one, who was bound to pay Intereft. Wherefore it was decreed, that the Portions fhould be railed by Sale or Mortgage, as fhould be agreed by the Mafter and the Parties, with Intereft from Sir Ralph's Death, and Cofts. Cafe 117. Lord Chdn- Ratcliff verfus Roper, IN this Caufe a Decree was made for a Sale of the tj's Clerk in Eftate for the Payment of Debts, and a Purchafor Court be approved of and confirmed ; there was likewife an Or- Procefecan der, that all Parties iliould join, iffc. be taken out aeaiiift the Party until he has appointed a new Clerk in Court, and a Suhpcena ad faciend' At- torn, muft be taken out for that Purpofe. And on Affidavit that one of the Parties refufed to be fpoke with, fo as to be ferved with the Writ of Ex- ecution, though it was allowed to be a Motion of Courfe, on Affidavit of this Matter, that Service of the Clerk in Court might be good Service, yet where the Clerk in Court appears to be dead (as he did in this Cafe) there the Court faid, they would make no Order, but a Subpoena ad facienct Attornat. muft be taken out and ferved ; becaufe, till then, the Party is not in Court. It was alfo allowed, that the Service of the Subpoena ad faciend' Attorn, would be good, if left at the Houfe, and that though the Party in this Cafe denied himfelf yet ftill the Subpixna might be left at his Houfe. M afters z De Term. Pafchce, 171 8. 421 Majlers verfus Sir Harcourt Maflcrs. cafe M e 118. At the Roltu Rs. Mary Mafters by her Will left feveral Legacies to feveral of her Relations and others ; for in ftance, to her Nieces A. B. and C. pecuniary Legacies, (vi^.) to A. and B. 200/. a-piece, and to her Niece C. 400 /. and having a Mother living, gave all her houfhold Goods, after her Mother's Death, to be di- vided among her faid three Nieces, and alfo the beft of her Cloaths j Jlie likewiie by her Will gave feveral fpe- cifick Legacies, and to the Poor of two Hofpitals in Canterbury (naming them) 5 /. a-piece ; as to her Lands fhe deviled them to her Nephew and Heir at Law, the Defendant Sir Harcourt Maflers^ but charged the fame with the Payment of her Legacies abovementioned, and made the Defendant Sir Harcourt Executor. Afterwards her Mother died, by which a conliderable Increafe of Perfonal Eftate came to her, and thereupon llie made a Codicil, thereby giving feveral pecuniary Legacies to feveral, to whom fhe had before given Lega- cies by her Will, many of which Legacies were larger than what were given them by her Will, and gave 5 /. per Annum to all and every the Hofpitals, (without faying where the Elofpitals were) and left Annuities to feveral of the pecuniary Legatees in the Will, and gave to her faid three Nieces, A. B. and C. all (leaving a Blank) to be equally divided, and her Cloaths ; and among her Legacies which were in Figures, fome of them were writ fo blindly (feeming to have been altered) that it was difficult, if not impoflible to read them, or to diftinguilh what the Legacies were j particularly in one Place, whether 100/. or 300/. was meant 3 and ilie gave to Mrs. Sawyer 2 00 /. when there was no fuch Perfon ever 'known to her, but it was alledged 5 P that 4Z1 De Term. Pafch^, 1718- that fVie meant one Mrs. Sa^opper; fhe likewife bequeathed to her faid three Nieces A B. and C. 50/. a Year for their Lives, and left 200/. for a Monument for her Mother, after which Ihe died. Her Codicil happened not to be attefted by any Witnefs, and fo, as was admitted, could charge no Land. It was alfo admitted, that both her Real and Perfo- nal Eftate were deficient in Value to pay the Legacies and Annuities given by her Will and Codicil. The Defendant Sir Barcourt proved her Will and Codicil, and upon a Bill brought for the Payment of feveral of the Legacies to feveral of the Plaintiffs, One gives^ ^y^^ jj. ^^^g decreed by the Mafter of the Rolls, that hisWi'ii' aJd the Perfonal Eftate not being ftijftcient to pay the Lega- cierb^'4" c^^s both by the Will and Codicil, and the Real Eftate Codicil, and being liable to the Legacies by the Will, and not to Jre i'aJg^d ^^"^^ ^Y ^^'^ Codicil, the Eftatc Ihould be (o marftialled, with the° that, as far as poilible, the whole Will might take Ef^ Jhe^wm '" fe(9^, and all the Legacies be paid. only, and the Pcffonal Eftate is not fufficient to pay all the Legacies ; the Legacies in the Will {hall be charced on ihc Land, and the Legacies by Codicil on the Perfonal Eftate. And therefore, that the Legatees in the Will fliould be paid out of the Rejd Eftate, and if that ftiould be deficient, they muft, as to the Surplus, come in Ave- rage with the Legatees in the Codicil, to be paid out of the Perfonal Eftate ; and, there being admitted to be a Deficiency, that the Land Ihould be forthwith fold to prevent a greater Deficiency, but that the Specific Le- [a] Vid. poft gacies muft be all paid, and not (a) abate in Propor- fu'splike. tionj on the contrary, that the (A) Charities, though pre- (/•) Vid. ante T(.ie verfLis Aujlln, & poft Atl. Gsn. verfus Huclfan. ^ ferred De Term. Pafch^e, 1718. 425 ferred by the Civil Law, yet they ought to abate in Pro- portion, for they were but Legacies. But it was objefled, that the two hundred Pounds Specific given for a Monument for the Mother, oueht not to ^^s^cic I • r. • 1 • I • T^ I V "^ ' '^'- "-^ to come II abate in Proportion, this being a Debt of Piety to the Average, Memory of her Mother, from whom the Tettatrlx re- Lega^i" ceived the greateft Part of her Eftate. And to this the that arc pe Court inclined, but however referved that Point. S'come Legacies not come into ity into Aver- iiitoAver- age, as well as other pecuniary Legacies. Whether a Legacy of 200/. given by the Tefta- tor for a Monument fliall come into Average. ^. idly. That the Will charging the Real Eftate ^^^' ^^^'= with the Payment of the I-^gacies /ihvc mentioned it dwr^gcdwith could not extend to the Legacies in the Codicil ; but Jf *•!« P%'"<="t ^ J Or fhc I P— the Real Eftate had been charged with the Payment of gaciesabove- the Teftatrix's Legacies in general, it would havT taken 'th^^wiif ' in the Legacies in the Codicil, they being as much her ""^ ^^- Legacies, as thofe in the Will. ^^tcLt tlie Codicil ; fiius if the Land were charged with the Payment of the Legacies generally. are -idly. It being objc^led, that whereas the pecuniary Pecuniary «. • t /^i-i jiiT •• . Lejracies j Legacies m the Codicii exceedea the Legacies in the given by Will, and were given to the lame Perfons, this Ihould ^y'"' ^"** be in Satisfaction of the Legacies in the Will, and that greater Le- the Leratees fhould not have both ; and particiilarlv, f^'^^^° ''^"^ P ... ,, f J^ ':irne fer- that where the Annuities given by tne Codicil were of fons by Co- greater Value than the Legacies in the Will, and were no sltif-^'^ given to the iame Perfons, they lliould be a Bar to fuch '^''-''^i"" ^^^ Perfons from claiming both : ilMhcTvi" but the Le- gatees to hav« both, becaufe tlsc Codicil i.sPart of the Will. Cur: The Annuities by the Codicil, though !^ivcn to the fame Perfons that were pecuniary Legatees in the Will, and though of greater Value, yet ihall not be taken to be a Satisfaflion for the pecuniary Legacies given by theWill ; becauie 424 ^^ Term. Pafcha:, 17 1 8. becaufe the Annuities are not ejufdem generis, and the Annuitants might die the next Day after the Death of the Teftatrix, and nothing being more uncertain than Life, confequently the latter Gifts inftead of be- ing a Bounty, might be a Prejudice, if taken to be in Sati&fa£lIon of the Legacies by the Will. 4ih!y, The Court declared, that the Codicil was Part of the Will, and proved as Part thereof, and that the greater Pecuniary Legacy, given by the Codicil to the fame Perfon that was a Pecuniary Legatee in the Will, ihould not be taken to be a Satisfa£lion, unlefs fo exprelTed ; that it was, as if both the Legacies had been given by the fame Will ; and it feemed a Cir- cumftance tending to prove, that the Teftatrix intended additional Bounties, inafmuch as Ihe, after the making the Will, and before her making the Codicil, had an additional Eftate from her Mother. Bequeftof $thly, On its being infifted, that the Devife of the Goo?s°^'* Houfhold Goods to the Teftatrix's three Nieces, could tends to all not pafs thofc Houlliold Goods which the Teftatrix had Houjhoid j^Qf ^j. j-jjg making of the Will, but came to the Pof- Ijoods pur- o r ■> chafed after- feliion of afterwards, by the Death of her Mother, Zt^l\r'^ and that the Codicil would not fupply it ; for the Co- in the Houfe dicil givcs all (with a Blank) to her three Nieces : attheTefta- fc> V / tor's Death. Cur : The Devife of all one's Houftiold Goods will pafs all Houftiold Goods that the Teftator has at the (a) Saik. Time of his (b) Death ; contra of a Devife of all one's jUsoSsFI Lands, for that will pafs only the Lands which the /(ge verfus Teftator then had. But Houftiold Goods are always fndtiJhe ' changing, and periling ; and therefore the Will, as to Reafon for Perfonal Eftate, ftiall relate to the Time of the Tefta- aionp!)ft"" tor's Death; otherwife it would be very inconvenient; f^nd verfus for then a Man muft make a new Will every Day ; alfo the Codicil ftiould, had there been occafion, have 4 been De Term. Pafch^e, 171 8. 415' cies been explained by the Will, though here the Will i? fuffi- cient without the Codicil ; and as to Plate, (a) if com- (f^g^ ^^""• monly made ufe of by the Family, the fame Ihall pafs Sed vidc ■^ as Houfhold Goods. J/'"'^- '" <-nan. 207. rrr ■ f- contia. I'latc in common Ufe in a Family ihall pafs as HoufholJ Goods. 6thly, Where the Will was writ blindly, and hardly where the legible, and as to the Money-Legacies writ in Pictures, ^^''ii is it was ordered to be referred to the Mafter to examine, rd'hardit'^' and fee what thofe Legacies were, and he to be alfifled ^^p^^"-, and by fuch as were skilled in the Art of Writing. JnV^g^et Court re- ferred it to a MaUer to examine what thofe Legacies were, and tlie Mafter to be a/Tifled with iuch as underftood the Art of Writing. 7?/;/v, Like wife as to the Legacy of 2C0/. to ^^s^tee's Mrs. Sawyer, the Mafter to examine, who the Teftatrix faifiy^fpeit^ meant thereby, and whether the Teftatrix meant j^*^''^*^'' *°^ Mrs. Sxvopper, who was the Perfon that contended for fee who ° the fame ; and if the Mafter Ihould find Ihe was the ^J '"^•'"- Perfon intended, then ftie to receive her Legacy in Proportion with the other Legatees. ^thly, As to the $ I. per Ann. to nil Md etery the ^^^.^y rr r ■ , • • 1 1 m n • 1- 1 • V/ill gives Hojp/tals, It appearing that the leitatrix lived m Cm- 5 1. p^r J>,n. terbury for many Years, and died there, and that Ihe ^^^f^ f"^/' took Notice by her Will of two Canterbury Hofpitals, fpitais, arid this Charity Was held not to be void for the Incer- "^ ^'? , proved tne tainty, but to have been mtended for all the Hofpitals Tcfbtrix in Canterbury ; but not to extend (as was prcfledj to piJcc 'where the Holpital about a Mile out of Canterbury, though 'I'ere were 5 Q. founded it niaii'te taken to be thefe Hofpitals, and not to extend to another Hofpital about a Mile from tl-.cncc, thou'^h foun- ded by the fame Perfon. * It w;is formerly held, that by the Devlfe of alLihe TL-ftaror's Fiirri- ture or Houfholii Goods, Plate in common Ufe would not paisj in ^■le- gard tliis w;is but Curta Supelkx ; but as the Nation grew riLJiei-, and Plate became a more common Furniture, it has been conftrued to be included within thofe Words. By the Mafter of the Rolls in lU: Cafe of Budge?i verius EUifon £if Ux\ Pafch^ i73i- 426 i>^ Z^rw. Pafch^y 17 18. founded by the fame Archbifhop of Canterbury, and governed by the fame Statutes. And this the Court decreed, notwithftanding it was objefled, that they ought not to go out of the Words of the Will and confine the general Words [all Hofpitals] to thofe in Canterbury ; and the Court did this the rather, becaufe thefe Cha- rities, if they prevailed, would be Perpetuities of 5 /. per Ann. and by that Means create a Deficiency, and confequently in a great Part defeat the reft of the Will, as to plain Legacies, in Favour of thofe that were doubtful. 9thly, Whereas in fome Part of the Will it was writ Hofpitals, and in fome Sp'tttals : "°^c''^' , Cur: It is the fame Thing; for Spittal is the Abbre- and Spittals r • i i i i o • i r. the fame, viation 01 Holpital, and thence come the Spittal Ser- mons. GiTe II 8. HeToet verfus Ireland. Lord Cban- cdior Par- TJulband and Wife have Ifliie a Daughter, and a ^' .r *- -^ Provifion is made, by Deed and Fine, out of the Provifion .„p-', r c • ^ forDaugh- Eftate of the Wife arter Marriage, tor lecuring 600/. bom fliaH ii"' Truft that ftie fhall have the Intereft during her extend to Life, and afterwards in Truft that the <5oo /. fhall be Sentegot- P^id to fuch Daughter or Daughters, as flmll be begotten ten. by the Hufband on the Wife, fuch Payment to be made at their Ages of eighteen or Marriage, which ftiall firft happen, the Intereft in the mean Time to go for Maintenance, and if no fuch Daughter, then to the Hufloand. The Fa6l happened to be, that at the Time of the bxecuting of this Deed, there was a Daughter of the Marriage about ten Years of Age, and no Daughter born afterwards ; and the Mother foon after died. I Where- De Term. Pafcb^, 17 1 8. 427 whereupon it was obje£led, that the Daughter born before the making of this Deed, isfc. fliould not take ; becaufe it was faid fuch Daughters as/Jjall be begotten, which are Words of Futurity. Lord Chancellor : The Parents coukl never intend to negleft a Daughter which n>as born, and yet lo younij, as not to be capable of offending them, (vi^. being but ten Years okl) and at the fame Time to take Care of a Daughter to be born, and which might never be born, and in Fa6l never was ; for which Reaton, if the Words can bear any Interpretation, the Daughter born before Ihall take. Beiides, as Procreatis takes in Children to he begotten, (") ' ^"^• (^a) and Procreandis includes Children then begotten, and 2 Vern. as the Words ufsd here, feem only to be meant for 545, 7 "• the Words [begotten or to be begotten] I am of Opi- ciian.491. nion, that this Daughter, though born before, lliall take ; ^ ^'^J^' alfo the Words [which Ihall be begotten] lliall relate to vcrfusCwr. the Death of the Wife, and then the Daughter born before, is included under that Defcription. It is like the Cafe in (b) Cro. Car. 18 ?. and cited by W See this Lord C. J. Hale, in i Vent. 230. where a Man ^t- ^ntlJ^Kmtijb vifed to his eldeil: Son and the Heirs of his Body, after verius Nr^- the Death of his Wife, and if he died, living the Wife, '"""" then to the Teftator's Second Son and the Heirs of his Body ; the firff Son died, living the Wife, but leaving iffue, and it was ftrongly urged, that his Eftate fhould ceafe, for that it being laid if he died, living the Wife, this explained what went before ; but it was ruled by all the Court, that it was an abfolute Eftate-Tail in the eldefl Son, and as if the Words had been, if he died without Ijfue, living the Wife. For the Father could not be thought to intend to prefer a younger Son be- fore ' — ■■ I.. — I ■■ l.^-- ■ ■■■■■ 428 De Term. Pafch^, 17 1 8. fore the IlTue of his eldeft. And the Conftru6llon contended for in the prefent Cafe would be equally linreafonable. ^•"^^ '^9- Stafford verfus City of London. Lord Chan- cellor Par- ker. Where a Bill wants /I And B. bring a Bill to be relieved againft the City of London^ in Regard A. B. and C. (who in the proper Bill was mentioned to be dead) were joint Leffees from the the City of divers Water-Springs near London, at the IS in hm Cofts. Power of the Rgj^f of 700 /. per Amum. And the Plaintiffs Bill was to mifs the have feveral Allowances out of the faid Rent, by Reafon, Bui j^m j.}^^j. j.|^g LelTees were evi£led as to fome, and difturbed rrcjr.dice, ^ _ r 1 r • 1 or to give in the Enjoyment of others of the laid Waters, by the men'cf, pV ^^^^ themlclves and by others. The City anfwers the Bill, and pending the Suit, brings an A£lion of Debt againft A. and B. for the Rent, fup- pofing C. to be dead ; and to this Aftion A. and B. plead in Abatement, that C. was living, and ought to be made a Defendant to the Action ; which being a Plea in Abatement, A. and B. made an Affidavit of the Truth of the Fa£l:. And this Caufe now coming on, the Defendants in- lifted upon want of proper Parties, (w^.) that C. was living, and not a Party to the Bill, and that C. was a neceflary Party, as he was a joint Leflee, and equally concerned with A. and B. and if the Allowances made to A. and B. were not fatisfa£lory to C. he might draw the Account all over again ; that C. could not be bound by the Account, unlefs made a Party, and bringing him before the Mafter would not be enough, where it ap- peared he was eflentially and equally concerned with any of the other Plaintiffs, ^od Curia concept. Th en De Term, Pafchce, 1718. 4Z9 "■ " ■ ' 1- ^ ■ — — .- . — -■— III .■■ ' ■ .11 ,. . .— ^ Then the Qiisjdion was, wliether the Court fhould give the Plaintifts Leave to amend, paying the Colts of the Day, or difmils tlie Bill ? Cur : This is a very Trick to fiippoie C. dead by the Bill, when the Plaintiffs (perhaps) could not get him to join, and yet to iVear him living, upon the Plea in Abatement; and it being dilcretionary in the Court, either to diimiis the Bill, or to give Leave for an A- mendment on Payment of the Colts of the Day, if in any Cale a Bill ought to be diimiffed, let it be in this ; but without Prejudice to another Bill. Freemoult verfus Dedirc, &f e contra. ^^'^^ '-o- Lord Chan- f^/Zar Parker, I 'Here were feveral Demands o^ feveral Natures af- „ ■*- fefting the Kftate of the Tt'^-Mox Abraham Dedlre ; nants before lie owed Debts by Bond and by Simple Contrad, and f.^Jf^'^'j^J-,, upon his Marriage had covenanted to lettle his Lands Lands on in RumneyM-dx^\ and alio Lands that Ihould be of the L-f^^ ^^j"'' Value of 60 1, per Annum, upon his Wife for her Life ; afterwards after which he makes a Will, thereby charging all his L^nj^ f J ^ Eftate Real and Peribnal with the Payments of his ^"^^^^"^ Debts, and dies, leaving his eldeft Son Executor. Covenant is a Specific Lien on the Lands. But a Covenant to fettle Lands of the Value of 60/. per Annum, with- out mentioning anv Land? in certain, this no Specific Lien, but the Wife mufl: come in as a Creditor in general, and the Maftcr to value her Elbte for Life, and the Wife to come in for that Valuation. But the Wife to have the Arrears before incurred, as well as the Valua- tion of her Eftate for Life. On a Bill brought by the Creditors for the Satlsfaflion of their feveral Debts, Lord Chancellor faid, with Regard to the Lands in Rumney Marlh, the Marriage Articles, being a Specific Lien upon them, make the Covenan- tor, as to them, but a Truftee, and therefore, during 5 R the 430 De Term. Pafch^, 17 18. the Life of the Wife, they are not to be affefted by a- ny of the Bond Debts. But the Covenant for fettling Lands of the Value of 60 I. per Annum on the Wife for her Life, does not fpe- cifically bind any I^ands ; wherefore, as touching that, the Wife muft come in only as a Specialty Creditor with the other Specialty Creditors. And in order to fettle the ^lantum of this Demand, let the Mafter fet an Eftimate on the Wife's Eftate for Life, (vi^) at fo many Years Purchafe, and then the Wife to come in as a Creditor by Specialty, for fo much Money. But in Regard the 60 /. per Annum was in Arrear for two Years at the Time of the Hearing of this Caufe, fhe mull: come in as a Creditor for 120 /. for thefe two Years Arrears, befides the Value of her Eftate for Life. And though it was obje£led, that the Mafter ought to value what her Life-Eftate was worth at the Time of her Huft)and's Death, yet the Court over-ruled this; for thefe two Years Arrears were a Debt aflually due to her, and muft in all Events be paid, and llie ran the ha- zard of a Fall of her Life in the mean Time, and if her Life had dropped, there muft have been no Valua- tion ; and fo it was faid to have been ruled on De* bate in one Berisford's Cafe, in Lord Harcomis I'ime. Onedevifes Alfo it being fubmitted to the Court, that forafmuch fo' Pa"ment ^ '^^ ^^^^ ^^^^ ^^^^ Lauds Were not devifed to be fold of his Debts ; for the Payment of Debts, but permitted to defcend Simple-Con- charged with the Debts, and confequently were legal Af- traa Debts fets by Defcent as to the Bond Creditors, and charged equaiiyT^' ^^^^y i" Equity by the Will as to Simple Contrafls, whe- But if he ther the Bond Creditors fhould not be preferred to his Landl^^' thofe by Simple Contra6l ? with the Payment of his Debts, fo that the Lands defcend fubjed to the Debts, the Bonds (hall be preferred before the Simple-Contraft Debts, 4 By Dc Term. Pafcb^, 1718. 451 By Lord Chancellor: As this Cafe is they fhall : But ?|"^.'''.*^= if the Heir before any A6lion brought had fold the tJie Land be- fore the Aaion Lands, and then the Creditors by Bond had brought their Anions, th^y fhould have been paid only theif brought. Share out of the Affets. And if is obfervable^ that by !*''" ''°''? , , „ „ ' y to be paid the exprefs Words of the Statute of 3 (t?' 4 W. ^ M. equally. cap. 14. " where there is any Devife or Appoint- f/r/rfFMu- " ment by a Will of Lands for Payment of Debts, or '^"''•'"t " Childrens Portions according to an Agreement be- w\\\ fot " fore Marriage, other than the Heir at Law, fuch P^vment of " Will ihall be of Force." younger Childrens Portions according to an Agreement before Marriage, fliall be good. Then it was contended, that thefe Marriage Articles were made in Holland^ and that by the Law of Holland, fuch Articles take Place of any other Debts, wherefore they fhould be here conftrued according to the Law of Holland, where they appeared to have been made ; which was faid to have been held in the Cafe of (a) Feaubert i^) Priced. J _, -, in Chanc. and Turju 207. To which it was anfwered, and fo ruled, that it ought Laws and to have been proved in this Caufe what is the Law of />"^„°^or Holland, as in the Caufe of Feaubert and Turfl it was t^oiiand proved what was the Law of France, without which proved, eire Proofs our Courts cannot take Notice of foreign ti'c Court '^ cannot take Laws, Notice of them. Target 4'?2 De Term. Pafchcv, 17 1 8. Cafe 121, Lord Chan- cellor Par- ker. Abridgment Target & at verfus Gaunt ^ a!\ (^ N E pofTefied of a Term for Years derifed It by his . . ^-^ Will to his Son l^enry ^ for his Life, and no longer^ Equity 193. and after his Deceafe^ to fuch of the Ijfiie of the f aid Henry, Termor de- ^s Henry by his Will JJjould appoint ; and in Caie Henry Te?m?o^. l^iould die without Idlie, then the Teftator deviled for Life, Re- fj-jg f^j-j-jg jq j^jg Brother Albinns for the Refidue of the mainder to j j- j fuch of his lerm, and died. lifue as he {hall appoint, and if A. die without Iffue, Remainder to B. this a good Devife, to B. Henry died without IfTue living at his Death ', where- upon The Qiieftlon was, whether the Term fhould go to the Executors of the firft Telktor, or to the Executors of Henry, or to Albinus ? ObjeB. The Devife over of a Term upon a Death without IfTue, is void, being too remote an Expectancy, and tending to a Perpetuity. {a) Vide Lord Parker : The Expreffion of dy in" without IfTue, ante Ni- , o r f \ choh ver- has two Seules : {aj fus Hooper, poft Pinbury verfus Elkin^ & Forth verfus Chop/nan. ifi, A vulgar Senfe, and tliat is, dying without leav- ing IfTue at the Time of his Death. * Note ; The Words which are in Iialic, are all omitted in the Re- gifter Book, though they are inferted in all the Cotemporary Reports ot this Cafe, and ieem here to be the principal Foundation of the De- cree. I 2dly, De Term. Pafch^, 1718. 433 idly, A legal Senfe, and that is, whenever there is a Failure of IlTiie. And if this Will be taken in a vulgar Senfe, (tv^.) if Henry dies without leaving liTue at the Time of his Death, then the Deviie over to Albinus is good ; now this feems to be the Meaning of the Teilator in the Principal Cafe; for it muft be intended fucb Ijfue as he fhould, or at leaft might appoint the Term to, which muil be intended Jffue then living j and this Conftru£lion iliall be the more favoured, in regard it fupports the Will, whereas the other deftroys it. Therefore the Court held, that the Devife over of the Term to Albinus was good, and obferved, that there was a great Div^erfity betwixt a Devife of a Freehold Elhte for Life, and if A. dies without Iffue, then to B. and a Deviie of a Term in the fame Words ; for in the former Cafe this might give A. an Ertate-Tail, becaufe the Words [if A. die without Iffue] in Cafe of an Inheritance, are inferted in Favour of the {a) IlTue, (e Sheriff, but nnt yet adually returned into B. R. this Court, on a plain Error appearing,' Inay rupcrftdc or cjnafh it. And it was moved by Sir Edtvard Northey, Attorney General^ to luperiede this Writ, \fl, for that it was not ihewn, that the Defendant was commorant within the Diocefe at the 'I'ime of the Excommunication pro- nounced. Moor 467. T. Jones 89. idly^ Becaufe there was iio Addition of the Defen* dant in the Writ. On the other Side it was anfwered (as to the firft Objedlion) that the Defendant in the Libel was faid to be of D. in Suffolk^ which was the fame Parifh where the Church was, and it Ihould not be intended that, af- ter the IJbcI, he removed from thence ; but if he did remove, his liying from the Procefs of the Court which had a proper Jurifdi6lion, Ihould not mend his Cafe, for then the Party, by his own Aft, and by his turn- ing his back upon Juiiice, might avoid inch Proceedings^. id'y, As to the Want of an Addition, this was faid to be only requifite in the Caufes of Excommunication mentioned in the Statute of the 5th £//>:. chap. 23. for which Rei^ion, it was true, that for want of an Addi- tion there could be no Proceeding aguinft him, by way of Proclamations with Pains and Penalties for not ap- pearing * It feems as if it might have been agreeabk to the Senfe of the Tcfta- trlk to have uiiderftood the Dcvife thus : " To my Daughters, and to " the Children of fucii of them as fhall b: dead, i^c. 43^ De Term. Pafch^e, 171 8. pearing, but ftill, as the Matter was plainly of Eccle- iiaftlcal Cognizance, (t;/^.) the Repairing of a Church, the Excommunication was good, and fo was Cro. Car. 196. Hughes Cafe, T. Jones 89. The Inhabi- tants of Berdmondjeyy Sir Bartholomew Showers Reports 1 5. Johnfons Cafe, Salk. 293. The King xtiixis Fojpler. Lord Chancellor called for the Writ ; and it appearing by the Indorfement thereon, that this Writ iffued out of Chancery, and, according to the Statute of the 5 th Eli^. was returnable in the King's Bench, and, though not yet aftually returned, had been brought into the King's Bench, and by that Court delivered to the Sheriff, for this Reafon Lord Chancellor doubted, whether, though the Writ were not returned, yet foraf- much as the Court of King's Bench was pofleiTed of it, the Chancery could fuperfede this Writ ; and at firft his Lordihip inclined, that it could not, but afterwards feemed to alter his Opinion, and this, in regard of the great Mifchief which might follow, if the Writ of Ex- communicato capiendo fhould iffue out in the long Vaca- tion, when the King's Bench does not lit ; and it would be hard that there lliould be a Failure of Juftice, and the Party continue in Prifon, and without Remedy, as he would do, if, in fuch Cafe, the Chancery could not, on a plain Error, fuperfede or qualh the Writ, which he therefore the rather inclined (a) might be done be- fore the Return of it. However, his Lordihip would declare no Opinion upon this ; but the other Exceptions againll the Writ being difallowed, the Order which was made for fuperfeding the Writ niji, was difcharged. 4 D E (a) And this in FacSl was done in 7?7«. Term. 1727. by Lord Khg in the Cafe of Barlo-vo verllis Collins, where the Writ of Excom. cap. was for not paying Cofts in a Giufe in the Spiritual Court for Non-payment of Tithes and other Eccleftaftical Duties, which being ill for Uncertainty, though the Writ was inrolled in B. R. yet being not returned tlierc, to prevent a Failure of Jufi:ice, it was iupcrfeded in Chancery. But 9uare, Whether the Words above in 'the lovg Vmation fnould not have been a little before the long Vacation, for the Stature of the 5th Eli-z,. jcil. 2 . exj^refly lays, that every Writ of Excoin. cap. fhall be made out in Term-Time. 437 D E Term. S. Trinitatis, 1718. Price verfus the Hundred of Ch civ ton '^■* '^♦• in Com. Somerfet.' 'UtT: ker. THE Plaintiff Price., on the loth of June 1717) inftruflions went before a Jaftice of the Peace, and fwore JjnaTaSbft he was robbed that Day about two of the Clock at =>" Hundred Noon, of 180/. and on the 9th of Augufl following beryw° tor filed out an Original againft the Hundred, who appear- brought to ing, tjie Plaintiff declared upon the Statute of Winton, within the after which he dropped the A£lion, and afterwards, on ^"t'^^-'^ the loth of this Inffant Junef fued out a new Original, paired the but the fame was antedated, and made to bear Tejie ^tcTlht"^' the 5»th of June Inftant ; and the Defendants prcxluced Year,thoiigh a Certificate from the Curfitor, that the Writ was not ^^^ y^^^^' fealed until the icth Inftant. Wherefore, as there (^"'z-) when could not be two Tenths of 'June in the iame Year, they liom"were " iniifted the Year was elapfed, and confequently, that brought to the Right of Adfion was extin£l by fuch Lapte of Time, -riiisheid" and the Hundred a6lually difcharged : that it ou^ht not ^"'^^ being to be in the Power of the Curlitor, by his antedating by the the Writ, to revive the A6lion, or to give a Right to JJ^eCuTfi"*^ the Plaintiff, which he was before legally debarred of; tors Office. 5 T tor 4^8 De Term. S. Triu. 17 18. for which Reafon, it was prayed, that the Original might be fet afide and fuperfeded. But On the other Side it was anfwered, that the Origi- nal was made to bear Tefte on the Day that the In- ftruftions were brought to the Curfitor, which was on the 5 th oijune inftant, though it had not been a6lually fealed until the i oth ; and that it was the conllant ' . Courfe, to make the Writ bear Tefle when the f:ime was befpoke ; that if it were otherwife, it might be an Inconvenience and Hardlhip to the Suitor, who might fuffer and be deprived of his Right, for what he couki not help ; for that it was frequently impofTible to set the Writ fealed for a conliderable Time after fuch Writ was befpoke, and even drawn up by the Curlitor. Lord Chancellor : Let this be referred to the Princi- pals and Afliftants of the Curlitors Office, to certify what has been the Ufage and Cuftom in thefe Cafes, and to fearch Precedents in Relation thereto, and in the mean Time, let all Proceedings ftay. In Obedience to this Order, the Principals and Af- foiiowiS''^ fiftants of the Society of Curlitors, foon after {a), made their Certificate, and thereby certified it to be the con- llant Pra6lice of their Office, " to Tefle Original Writs " againft Hundreds, Corporations, Heirs, and in feveral *' other Cafes, the fame Day the Writs are beipoke, and " that they never knew it otherwife, or that the " Pra£lice was ever contefted before the prefent Cafe." Upon which it was ordered, that the faid Plaintiff might be at Liberty to proceed in this Hue and Cry, and that the Defendants Ihould pay the Colts in Re- fpe£l of the faid Reference. 4 Pam\ De Term. S. 7rin. 171 8. 4^9 Pains Cafe. B. R. ^.c^^.r pAlN was committed to the Fleet by the lite Lord ^£"/' ^^''"" Chancellor Cowper for a Contempt in obltrLiftinjr the One com- ExecLition of his Lordlhlp's Warrant for the Commit- g'^Jf^y j-"^ , ment of Fains, Father, for the Non-Payment of a Debt Contempt decreed to the Plaintiff Hinchliffe, and Pain having re- another'"" moved himfelf to the King's Bench, and being let at "''e" "" large by the Marfhal, Lord Chief Jiiflice Pratt granted cciior's his Elcape Warrant ajiainil: him, upon which Pain was ^^f"!?"^? . r ^ -J ^^'^^ Perlon taken m the Strand, and committed to Newgate as the not liable to County Gaol. . -^^^f^ And it being thought by Pains Coiinfel, that an Efcape Warrant would not lie in this Cafe, it was moved that the Warrant might be returned ; which be- ing granted, The Prifoner now moved to be difcharged, inlifting that an Elcape Warrant did not lye, in regard the Statute of the {a) firft of Qiieen Anne, cap. 6. which gives the (") Vide Efcape Warrant, fpeaks only of Perfons committed by la^^"!„p_ g''' any of the Courts of Record a:t Weflminfter, upon any Ailion of Debt or Damages, or for a Contempt in not performing Orders or Decrees made in Courts of Equity ; fo that the Statute does not extend to Peribns com- mitted for Contempts generally, but it muft be for a " Contempt for not performing an Order or Decree". Exceptio probat regulam, and the Statute mentioning this Contempt, excludes all others; now Pain, though committed for a Contempt, yet was not committed for a Contempt in not performing any Order or Decree, there being no Order or Decree againft Pain. Indeed 440 De Term. S. Trin. 171 8. Indeed if Vains Father had been committed, and had efcaped, there being an Order againft him for Payment of Money, an Efcape Warrant would have lain againft him ; but Pain the Son was not within the A£^, he not being to perform any Order or Decree, and, when committed, was only to fufFer, and not to perform any Thing. That this Statute being a penal Law, whereby the Party was to be imprifoned without Bail or Main- prife, was to be taken ftriSly, and not to be enlarged by Equity ; and the Intent of it was, to preferve the Property of the Subje£l, not to punilh mere Con- tempts. Accordingly, and for thefe Reafons, it was ad- judged by all the Judges of the King's Bench, jeriatim, that this Warrant did not lye. But there being an Order of Chancery, that Pain the Prifoner fhould be kept within the Walls of the Fleet, and he now efcaping out of the Gaol of the Court of King's Bench, the Court made a Rule, that Pain fhould be delivered by the Keepers of Newgate to the Marlhal of the King's Bench, to be there kept in clofe Confinement, according to the Inten- tion of the Order in Chancery, whereby he was con- fined within the Walls of the Fleet. Lawfc on De Term. S. Trin. 1 718. 441 La-'wfon verfus Laivfon. cafe 126. can- TH E Teftator being languifhlng upon his Death- Donatio Bed, delivered to his \\'ife a Purfe of Gold con- '" ^'"''''' talnino about lOO Guineas, and bid her applv it to no ""^^"'^ Other Vje hut her own, and likewile drew a Bill upon a Death-Bed Goldfmith to pay i oo /. to his Wife, to buy her Monrn'wg J-!! wTfe^a and to maintain her until her Life-Rent (meaning her a Purfe of Jointure) Ihould become due, and foon afterwards, nca°, a"d (vi'Xi. about feventeen Days after the drawing of the •''^^ '•.^'" Bill) the Teftator died. her own ufe. This is Do- natio causa Mortis, and a good Legacy to the Wife, and ftiaJl not go to the Executors or Adminiftrators of the Hufband, if there is fufficient to pay Debts. So hkewife, if theHufband being ill {ut fupra) draws a Bill on his Goldfmith to pay his Wife loo/. for Mourning, this is a good Appointment. More doubtful, if the Money on the Bill were received in the Hufband's Life-Time. This coming on upon the Mafter's Report, the Mafler of the Rolls was clearly of Opinion, that as to the Purfe of Gold^ it was Donatio Causa Mortis, in regard the Teftator was then languilhing upon his Death-Bed; and therefore, it being in nature of a Legacy, and not to take Efte£l, but in Cafe of the Donor's Death, un- der fuch Circumftances, a Man might give to his Wife; and it was the ftronger, it being faid, that flie was to apply It to no other Ufe but her own ; for confequently me was not to apply it to her Hufband's Ufe. His Honour further obferved, that this being Donatio Causa Mortis, need not be proved with the 1 eftator's Will, neither need any Gift in Nature of a Legacy be fo proved; for they operate as a Declaration of Truft upon the Executor. 5 U As 442 De Term. S. Trin. 17 1 8. As to the other Point, the Court at firft held, that the Teftator's ordering the Goldfmith to pay icc/. to his Wife was but an Authority, and determined by the Teftator's Death. To which Mr. VernoH replied, that this was an Au- thority coupled with an Intereft, and being given for Mourning, it could not take Efte6l but upon the Teftator's Death, and therefore his Death could not be a Revocation; which feemed to have weighty but his Honour doubted, whether there could be a Donatio Causa Mortis without an a£lual Delivery to fuch Do- nee ; at leaft, it was a Point not fettled, for which Reafon, he would (he faid) referve it for further Conii- deration. Afterwards in Hillary Vacation^ 17 i8. the Majler of the Rolls delivered his Opinion folemnly on both thefe Points: That the Delivery of the Purfe was good ; and muft operate as a Donatio Causa Mortis^ ut Res magis va^ teat, ^c. Becaufe otherwife one could not give to his own Wife, and there being a Delivery by the Tefta- tor in his laft Sicknefs, and when he was fo near his End, and the bidding his Wife apply it to no other Ufe than her own, made this Part of the Cafe plain; and he cited Swinburne 1 8. where it appears there are three Sorts of Gifts Causa Mortis, and laid this was in the Nature of a Legacy to the Wife. idly-, As to the Bill of 1 00 /. drawn upon his Gold- fmith payable to his Wife to buy her Mourning, and to maintain her until her Life-Rent {vii^. Jointure) fhould come in : This De Term. S Jrin. 171 8. 443 This his Honour held good, and to operate as an Appointment ; tliat if the Wife had received it during the Huftand's Life-Time, it would have been h'able to fome Difpute, but that he appreliended this amounted to a Dire6lion to his Executors, that the i oo /. fhould be appropriated to his Wife's Uie. And he inclined t*) think, that even if the Wife had received it in the Hufband's Life-Time, llie ihiuild have kept it; that be- ing for Mourning, it might operate hke a Direction given by the Teftator touching his Funeral, which ought to be obferved, though not in the Will ; that the Court ought to go as far as it could, to a^lill: the Meaning of the Party in this Cafe; here was a Wife attending her Hufl^and in his laft Sicknels, and tlie Hufband fenfible of her Afteftions, was conferring Gifts upon -her, and thole rrot extravag:uit (for then lie ad- jnitted Equity ought not to make them goodj but the ■Gifts were but 200/. whereas the Perfonid Eitate a- mounted to 8000/. fo that this was only an Inftance of the tender Care of an afl:e61:ionate Huiband towards •bis Wife -, wherefore it was decreed accordingly. 'Drake \tYix\s Ri)hinfou. cafeiz;. IV/TR. Wiltiam Berncrs of Hadham in Hertfordjfjire, One devices ■*- ^ having made a Settlement of a Real Eftate upon y\-^^l^^ fj^^ his Wife for her Jointure, and having contra61;ed leve- Debts, and xal Debts, made his Will, and thereby dc\iied all bis Si?" Real EJ}ate, not comprized in the Settlement, to Truftees ^^iJ Part and their Heirs for the Payment of his Debts, and was anTdies * feiied of IVveral Freehold and Copyhold Lands, hut without XiaCl iciiu'cred tlie Copyliold to the Ufe of his Will ; regularly the Copyhold (hall not pafs wiihcut bcmc; mentioned, and if mentioned. Equity will op behalf of Creditors fupply the Want of a Surrender. But if the Freehold Eftate be not fufficicnt to pav the Debts, the Copyhold being Real Eftate (lull be liable. z|44 ^^ Term. S. Trin. 17 1 8. had not turrendered his Copyhold Lands to the Ufe of his Will, and died leaving three Sons, and Part of the Copyhold w-as of the Nature of Burrough Englifi. Ob'jcBed, The Copyhold does not pafs by this De- vife, for though, in the Cafe of Creditors, Equity will fupply the Want of a Surrender, yet the Copy- hold ought ever to be mentioned in the Will, efpe- cially where (as in the prefent Cafe) there is a Free- hold Eftate that will fatisfy the Words of the Will. Lord Chflncellor : If the Copyhold paffes, the youngeft Son, who is intitled to fuch Part thereof as is Burrough EngliJJj, muft contribute to pay his Proportion of the Debts. As betwixt the Sons, it is a doubtful Cafe ; but with Regard to the Creditors, if there be not an Eftate fufficient for the Payment of the Debts with- out the Copyhold Lands, my Opinion is, thefe ought to pafs. The Man is not a juft Man unlefs he takes Care to pay his Debts j for which Reafon he has made choice of Words large enough for that Purpofe, a Copyhold Eftate being a Real Eftate. And fince the Teftator's firft Intention is to be ho- neft, and pay his Debts, to cramp fuch his Delign by a narrow Conftruftion, feems like being acceffary to the making inch I'eftator a Knave even againft his Will. But let the Mafter firft fee whether there be enough without the Copyhold for the Payment of the Debts. BalJJj ' I I De Term. S. Trin. 171 8. 441^ Balch verfus Waflall. ^^^^'^8. Lord Chan- ff/Zor Par- H E Defendant owed Money to the Plaintiff by '''^'■• Bond, and the Plalntift' having outlawed the De- ^- ''av.'ng T fendant before Judgment, brought his Bill in this Court brined outlawed B . - - brings a againft the Defendant, and one that was a Truftee for R'" ag^inft the Defendant as to an Annuity of 20/. per Annum ^tIuLc' devifed to the Defendant out of a Perfonal Eftate, in '"'■ ^- '^■''^ order to fubje61: this Annuity to the Plaintiffs Debt, an^ Annuity, to fubje(5l this Annuity to the PlaintifFs Debt. The Attorney General ought to be made Party, and the Plaintiff muft get a Leafe or Grant in the Court of Exchequer from the Crown. On its being obje6led, that this Bill did not lye, all the Defendant's Ellate being forfeited to the Crown, Mr. Vernon infilled, that fmce the Plaintiff had gone as far as he could at Law, and was hindered by the Con- tempt of the Defendant, and this being a Matter of Trurt, and a Creature of Equity, the Plaintiff ought rather to be relieved here, than lent to another Court ; Fruflra jit per plUra, quod fieri poteft per Pauciora ; and he cited a Cafe where Lord Nottingham had held, that one who had a Judgment, and had lodged a Fieri Facias in the Sheriff's Hands, to which Nulla bona was returned, might afterwards bring a Bill againft the Defendant, or any other, to difcover any of the Goods or Perfo- nal Eilate of the Defendant, and by that Means to affe) compelled the (i) Jacoifo ^viortgaiior to nay the Money to the HulLand, without J'.'"'^'" ^f^^' his making fome Proviiion tor his Wife ; or at leaf!: (upra. the Wife, by an Application to the Court againll the Huihand and the Mortgagor, might hav'e prevented the Payment of the Money to the Huftand, unlefs fome Provifion were made for her. 'on But 460 De Term. S. Trhh 17 18. But in the prefent Cafe, the Widow was Plaintiff againft the Affignees, fo that flje, and not the Credi- tors fought the Aid of Equity. And liere being in the Mortgage Deed a Covenant to pay the Mortgage Money to the Wife, this Debt, or Chofe in Aftion was well affigned by the Com- miilioners to the AiTignees and vefted in them ; like the {a) Ante Cafe of {a) Miles verfus Williams, where a Bond made ^'^'^' to a Wife, dum fola, was adjudged to be liable to the Hufband's Bankruptcy, and aifignable by the Cora- miiTioners. Wherefore, if the Right to the Debt was vefl:e3 in the AiTignees, (as plainly it was) though the legal Eftate of the Inheritance of the Lands in Mortgage conti- nued in the Wife, yet this was not material, it being no more than a Truft for the Aflignees ; like the common Cafe, where there is a Mortg;>ge in Fee, and the Mort- gagee dies, here the Mortgage Money belonging to the Executor, though the Heir takes the legal Eilate by Defcent, yet he is but a Truftee for the Execu* tor ; for the Truft of the Mortgage muft follow the Property of the Debt, elfe the Mortgagor would be in a very hard Cafe, liable to be fued by the Allignees of the Commiilioners upon the Covenant, and alio in an Ejeclment by the Wife of the Mortgagee ; whereas the latter Suit would be injoyned in Equity. One^ agree- i^j^^gn it was infifted, that here were Articles entered leave his Jpto bcfore the Marriage of the Bankrupt and his wit^n three Wife, by which the Hufband covenanted to fettle the Months af- \yjfe ^^ the Manor of Dale, or to leave her looc/. Deatii, can- within three Months after his Death. not be in- forced in Equity to amend the Security. 2 But De Term. S. Trin. 171 8. 461 But in this Agreement it appeared that the Hulhand had his Election all his Life-Time, and that if the Wife had brought her Bill in Equity againft the Hufhand, flie could not have compelled him to do the one or the other ; neither could Ihe, upn fuch Bill, or otherwife, have compelled him to give any farther or better Secu- rity for the Payment of this i oqo /, becaufe (lie had that Security which ftie at firft agreed to take, {a) (^) s« the and the Court could not better it againft her own ^'^•"'^ °^ '^'^'' . iins verfus Agreement. p/ummer, ante 104; But upon another Point, ^7^. as to 206 /. Part of the Wife's Portion, on a Note given by the Hufband at his Marriage, lignifying his Confent that the Wife fliould have this 200/. the Court held the fame was fpecifically bound thereby, fo that with Refped to this only, the Plaintift' was relieved, and the Bill, as to the reft, diimifled. Earl of Thomond verfus Earl of J//^'- arc 132. " & al\ folk Lord Chan- cel/or Par- ker. 'X" H E Countefs Dowager of Thomond had two fe- S"hef '^" -^- veral Sums of 2000/. and 2 coo A due to her <^^randchiid on two fe veral Bonds, the one for 2OC0/. from her f,f 4000/. Grandfon the Plaintiff the prefent Earl of Thomond, the «^'"g fo other from her Grandaught^r in Law, the Lady Hen- by y. s. rietta Obrian, (afterwards Countefs of SuffolL and lince p!'°''''='1 deceaiedj tor 2000/. alio. of the Deb: fl-.oiild l-e paid in before the Teftatrix's Death, then fo much as fhould be paid in, to be made good to the Grandchild out of tiic StirpUis of her Eftate. Afterwards the Tedatrix relcafed 2oco/. of the faid Debt to J. S. without having received any of the Money. Decreed that this was no Ademption of the ^Legacy pro tanto, but that the Legatee or her Reprefcntative was in- titled to the whole 4000 /. a; much as if the fame had been paid in to ti)c Tcilatrix. 6 B The 462. De Term. S. Trin. 17 18. The Countefs Dowager of Thomond by Will gives thefe two Sums of 200c/. and 2000/. and all Inre- reft due for the fame, to her Grandaughter the Lady Mary Ohrian, and devlfes away the Surplus cf her Eftate, with a Provifo, " that in Cafe all, or any " Part of thefe two Sums ihould be paid in before " the Teftatrix's Death, then the faid Teftatrix gives " to the faid Lady Maiy Obrian 4000 /. or fo .much " Money as the Principal Money fo paid in Ihould " amount unto, as the Cafe Ihould fall out." Afterwards the Teftatrix, in her Life-Time, releafed to her Grandfon the Lord Thomond the 2000/. which was due to her upon his Bond, without having received any Part of the Money, and died ; and her Legatee the Lady Mary Obrian died inteftate ; upon which the Plaintift' the Earl of Thomond her Brother adminiftred to her, and as her Adminiftrator demanded the 20C0 /. which was releafed to himfelf upon his Bond, and alfo the 2000/. due upon the other Bond given by the Lady Henrietta Obrian. The Firft he demanded our of the Affets of the Te- ftatrix the Countefs Dowager of Thomond ; and the latter he claimed againft the Defendant the Earl of Suffolk, who, though he was not Executor or Adminiftrator of his faid late Countefs, nor had any legal Aftets, yet (as was inlifted by the Plaintiff) remained ftill chargeable therewith in Equity, in relpe£l ot a great Jointure which he had long enjoyed by his Lady, and divers rich Jewels, which ifie brought him upon their In- termarriage. In regard to the Firft, it was objefted for the De- fendants, that the Teftatrix, after having bequeathed rjiefe two Sums of 2000/. and 2C00/. due upon the I two De Term. S. Trin. 1718. d.6\ two Bonds, to her Grandaughter the Lady Mary Obrian, releafing one of them, was a Revocation, or Ademp- tion of the Legacy pro tanto. That the Diverficy which had been ufually taken, was, if the Debtor fpontaneouily and uncalled upon by the leftator, paid in a Debt to him, which he (the Teftator) had before given away by his Will, this was not a Revocation of the Will j for in fuch Cafe the Teitator was only pallive, and did not a6l himfelf ; whereas it muft be bis A£1, which revokes the Will, and the legator could not help receiving in the Money, if the Debtor would pay it. But if the Teftator himfelf called for the Debt, and received it, there it mult be a Revocation \ it being the Telfator's own Adi to call in the Debt. Now, in the Principal Cafe, it was the Teftatrix's own voluntary A61 to rcleafe and extinguilK that Bond, which Ifie had before deviled to Lady Mary Obrian, and confequently was a Revocation of the Will for fo much. And if this was a Revocation, the fubfequent Words could not make it a new Bequeft of two thoufand Pounds out of the Surplus of the Teftatrix's Eftate ; it being given upon a Condition precedent, vi^. " If this " 4000 /. or any Part thereof, iliould be paid in, then " the Teftatrix gives 4000/. or fo much as Ihould " be paid in, out of the Surplus of her Eftate, to her " fald Grandaughter ;" but no Part of the 4000 /. be- ing paid in, (chis 2000 1, being releafed by the Teftatrix without being paid in) here was no new Bequeft out of the RcfJimm. Alfo 4^4 De 'Term. S. Trin. 17 1 8. Alfo the Meaning of the 1 eftatrix was faid to be, that if any Part of the 4000 /. fhould be paid in, by which the Bulk of the Surplus fhould be fo much increafed, then, and not otherwife, the Teftatrix gave a new Legacy out of fuch Surplus, viz,, to the amount of the Money fo paid in. Belides, a Rcleafe of a Debt was not a Payment, for it was moft plain, even by the prefent Cafe, that there might be a Releafe with- out a Payment. That it appeared the Words were againft the Claim of this new Legacy, and as the Words were againft it, fo alfo was the Intent of the Teftatrix, who did not purpofe to give a new Legacy out of the Surplus to leffen the fame, iinlefs fuch Surplus were increafed by the paying in of this 4 ceo /. or fome Part of it. Lord Chancellor : The Teftatrix intends by this Will (amongft other I'hings) to make a Proviiion of 40C0 /. for her Grandaughter Lady Mary ; and though flie has iliewn her Kindnefs to her Grandion (one of thefe Bonds being given by him for 2000 /.) yet this no ways imports an Alteration, or Diminution of her Kind- nefs to her Grandaughter. I cannot approve of the Di- veriity, that if the Teilator gives away a Debt by his Will, and afterwards calls it in, this muft be a Revo- cation ; fecus if it be paid in to the Teftator unaflied for; for fuppofe the Teftator called in that Debt, 11^ ^hl"^' ^'^^ring it might (a) be loft, and not liking the Secu- Cafe of Ford rity ; is there any Real'on that this fhould deprive the ^'JacSS'. Legatee of his Legacy ? And the Cafe of Orme and (i) aVern. Smith ( b) proves that the Tcftator's receiving in the Debt is no Revocation or Ademption of the Le- gacy. z As De Term. S. Trin. 171 8. 469 As to the Matter of the Releafe, that furely Implies Payment and Satisfa6lion of a Debt, being tanta- mount to the Teftator's receiving it, and giving it back again ; and in the prefent Cafe, it is the fame, as if the Will had faid, ;/ theje Debts be paid or dif' cbargedo There has been an Obje£lion made, that the Plaintiff the Lord Thomond, being Adminiftrator to his Sifter Lady Mary, craves a double Advantage of this Debt ; for firft (lay they) it is given him by the Releafe, and then he takes ic over again by the Will, as reprefenting his Sifter. But it is to be obferved, that his Claim as reprefenting his Sifter, is in {a) Aiiter Droit, and as if the Sifter [a) vide i was alive and made her Claim: it muft be liable to her -%"' ^^t' Debts if flie owed any, and is the lame Thing, as if J^rw, & any other Perfon had been her Executor or Adminiftra- vef^f 6?^ tpr. pi>'g- With regard to the other Point, vvzi. the Plaintiff's Demand due by Bond from the Defendant's Wife dum Jola, ai^ciinft the Defendant her Hufband, in refpe^l that he had received much by the Confequences of the Jvlarriage : It was urged, that though the fiime was not legal Aflefs, yet there was great Realon, the Defendant fliould be liable, in Equity,* on account of the Benefit fo received. That if an Hufband fliould have a vaft Portion with a Wife, in Goods, ready Money, or Jewels, or become intitled to a Term tor Years in her Right, and the Wife Ihould die, owing a Debt contrailed dim 6 C, fela, 466" De Term. S. Trin. 17 18. fola, there was great Equity, (though thefe might not be lethal AlTets,) that the Hufband lliould be charged by reaibn thereof, and not go away with his Wife's Fortune, at the fame Time that he was not liable to pay her Debts. ^ Feme Sole That here the Qiieftion in Equity was, whether by Boiid^ '' the Hufband had not with his Wife fo much as would and takes^ p^y j-]^jg Pefjt ? if hc had," he ought to pay it ; and •lies leaving it might bc a common, and would be a hard Cafe, if no Affets, ^\^^^q ^ycre a Feme Sole Trader, who had a Shop full of but at the i n n j J j j- • Marriage Valuable Goods, and ihe inouid marry, and die m- J^/y^J;™ debted, there the Huiband ftiould by the Marriage a Jointure, be iutitlcd to all thcie Goods, which yet, not being ofotods, legal Aflets, would not be liable; furely under fuch or other Circumftanccs, nothing could be more reafonable, than EftatC in that he lliould be charged with his Wife's Debts. Confidera- tion of which the Hufband makes no Settkment ; Hufband not liable. It was admitted to be different, where the Hufband makes a Settlement in Confideration of a Portion ; for in that Cafe, he being a Purchafer, the Portion fhall not be Affets to pay the Debts of the Wife ; /ecus if the Hufband makes no Settlement. That in the Principal Cafe, the Jewels which the Defendant the Earl of Suffolk had with his Wife, toge- ther with a Rent-Charge of 1500/. a Year, that he was intitled to in her Right, ought to be liable to the Wife's Debt dim fola, and Equity fhould favour any Conitrudion for the Payment of Debts. See the Caie of Freeman verfus Goodham, Chancery Cafes 29^, where I^ord Chancellor Nottingham, with fome Earnefl- nefs, faid, he rvoidd change the Common Larv in that Point. I On * In the Office of Executor, Chap. 17. Se6t. i. this is mentioned as an hard Cafe, and proper for Equity. De Term. S. Irin. 171 8. 467 On the other Side it wj^s infifted, that the Defendant the Earl of Suffolk was neither Executor nor Admini- ftrator of his late Countefs; nor was it pretended, that he had polTeiTed himfelf of any Thing that was her legal Aflets ; fo that at Law he was no ways liable to this Bond. And in Equity, all Circumftances, when conii- dered, were rather in his Favour, as that he had be- fore, or foon after the Marriage, paid fuch of his Lady's Debts as were difclofed to him, and advanced conlide- rable Sums for her. I'hat the two thoufand Pound Bond in Qiieflion was not difcovered to him at the Time of the Marriage, nor until long after ; which if it had appeared, he might have lived in that provident Manner, as to have paid this her Debt out of her own Eftate. That it was in the Election of the Countefs Dowager of Thomond, with regard to this two thoufand Pound Bond, to have made the Defendant the Earl of Suffolk liable, by putting the Bond in Suit, and recovering Judgment upon it, during the Coverture ; that ihe had a long Time to make her Eledion, the Marriage having continued ten Years or upwards ; and her chuhng not to put this Bond in Suit, was tantamount to a Declaration that fhe would abide by her original Security, and not inv^olve the Defendant the Earl therein ; and, on the other Hand, there could be no Qiieftion, but it was in the Power of the Countefs Dowager of Ttjotnond to choofe that Security for her Debt, it being the fame which was originally given her. That 468 De Term. S. Trin. 17 18. That a Court of Equity would poffibly relieve, in Cafe the \Vlfe, who was the Debtor, had died in fo iliort a Time, as that Judgment could not have been obtained againft the Hufhand ; but there was not the like Reafon that Equity Ihould relieve, when the Teftatrlx had Time fufficientto have made the Hufband liable, and yet, voluntarily, nay, perhaps induflrioujly, had omitted it. That, by the known Rules of Law, the Hufband was only liable during the Coverture, and here not be- ing Circumftances to vary the Law, Equity ought not to interpofe. Indeed, If there had been a great Perfonal Eftate of the Wife, or if Part of that Eftate had ftill remained in Specie, (as in the Cafe of a Term for Years) there might have been fome Ground for an Application of this Nature ; but in the prefent Cafe it was proved, that the Defendant the Earl of Suffolk^ fince this Marriage, had advanced his Manner ot Living, and that the Increafe of his Charge had amounted to the , full Value of his Countefs's Jointure. Lord Chancellor : If the Defendant the Lord Suffolk the Hulband had been Executor or Adminiftrator of his \Vife, or Executor of his own Wrong, he had been lia- ble at Law as fltr as Aflets ; but In none of thefe Capa- cities does he appear before the Court. Any Perfon, that has any of the Countefs of Suffolk's Alfets, is liable : the Creditor the Counteis of Thomond had a fair Oppor- tunity of recovering Judgment againft the Earl and Countefs oi Suffolk, and thereby of making the Earl of Suffolk liable ; but this ihe has not done, and (for ought appears) has purpofely omitted. i the De Term. S. Trin. 171 8. 469 The Huiband during the Coverture is anfwerable for the Wife's Debts; and as perhaps this may be hard when he has nothing with her, fo you are to fet againlt fuch Hardfhip, that if tlie Hufl)and has -received a Per- fonal Eftate with his Wife and happens not to be fued during the Coverture, he is not liable. But it is to be confidered, that the Huiband during the Coverture is to antwer for the whole Debts of the Wife though he had nothing with her ; whereas an Executor or Adminilfrator is relponlible only io far as he has Affets. As to the Cafe that has been put, where a Hufband marries a Feme fole Trader and the Wife dies indebted, that though the Huiband in fuch Cafe be not at Law liable to the Debts, yet he ought to be fo in Equity ; That is with me a Qiieftion ; for the Hufband runs a hazard in being liable to the Debts much beyond the Perfonal Eftate of the Wife^ and in Recompence for fuch Hazard, he is intitled to the whole of the Perfonal Eftate though exceeding the Debts and dif- charged therefrom, and indeed is Intitled to the fame upon the very Marriage. And with regard to the jointure injoyed by Lord Suffolk during the Coverture, that might have de- termined the next Moment after Marriage ; though how long fo ever it continued^ it was in the Hufband's Power during the Coverture to fell and dilpofe of it at his Ditcretion. Upon the whole, it would be a great LnpUtation lipon the Court in a Cafe thus circumftanced, to make 6 Q the ATjo De Term, S. Trin. 17 18. the Defendant the Earl or Suffolk liable to the Bond of his Wife dim fola ; wherefore as to this, let the Bill be difmiiTed with Gofts. * ca'e ^33- Short verfus PFood. Lord Chan- , ^ . cellar Par- . . ^ kcr. '"T^Ruft Money is dlrecled to be laid out in Land Where Mo- J_ ^j^^ fettled tipon a Woman for Life, Remainder to ney is cli- , •■ , . refled to be her firft, ^c. Son in Tail, Remainder to fuch Son in Fee, '^ PurcLfe ^'^"''^ ""^ ^^^^ mean Time and until a Purchafe can be of Land and found, the Moncy to be put out at Intereft, and the on^^. for^ Intereft to go as the Profits of the Land, i5fc. Life, Re- mainder to B. in Tai], Remainder to C. in Fee ; if A. and B. bring a Bill for the Mo- ney, they (hall not have it, becaufe of the Contingency to C. But if Money were direfted to be laid out in a Purchafe of Land to be fettled on J. for Life, Remainder to 5. in Tail, Remainder to faid B. in Fee ; J. and B. bringing a Bill fliall have the Money decreed them. The Alorher and Son (there being only one Son) come to an Agreement, that this Money fhould be paid, a Third to the Mother, and two Thirds to the Son, and bring a Bill againll the I'ruftees to pay it, who fubmit to the Court being indemnified. Lord Chancellor, on hearing this Caufe by Confent fliid, that Lord Coivper had determined, that if a Remainder Man had but a Chance for the Eftate or the Aloney, which could not be barred with- out a Recov^ery, there in regard the lenant in Tail might die before fuch Recovery luftered, or might die in a Vacation, when a Recovery could not be fuf- fered, a Court of Equity, whofe Bufinefs it is to aid the Intent of the Party ought not, in Violation of fuch Intent, to decree the Payment of the Money to the Tenant in Tail, but ought to Decree it to be .2 laid * Agreeable to tliis Refolution and on the Authority thereof, was the Cafe of Heard & Ux' ver£js Stamford & Ux' determined by Lord Tali/oi in Lincoln's hn Hall, March 8. 1735-6. De Term. S. Trin. 171 8. 471 laid out in a Purchafe of Land to be fettled according to the Dire£lion of the Party, in order that the Chance which was intended the Remainder Man, might be preferred, and when the Settlement was made, the Tenant in Tail might if he thought fit fuffer a Recovery. Which Matter was fo decreed I^y Lord Chancellor Cowper in the Cafe of one Mr. Cohvall and Dr. Shadwell (a), and where the Chance afterwards ("^ See the a£l:Lially happened in flavour of the Remainder Man ^,f//i";,''Jhc by the Death of the Tenant in Tail before any Re- Cafe of r rr J Chaplain covery iutiered. verfus //«r- ner. But that in the Principal Cafe, where the Mother was Tenant for Life, with Remainder to the Son in Tail, Remainder to the lame Son in Fee, fo that the Son might by a Fine {b) only, bar thefe Limita- (h) Vide tions, and which Fine might be levied in Vacation ''"^^ ^c^^" Time as well as Term, it would be in vain \ox fin. Equity to decree a Settlement which the fame Mo- ment that it was made, might be cut off. Therefore his Lordfliip direfled the Truftees to pay the Money to the Mother and Son puriuant to the Agreement, and to be indemnified, but faid that if there had been two Sons or any Perfon in Remainder, he would not have decreed the Payment of this Mo- ney. It feems alfo that if the Son had been an Lifant, iyc) the Court would not have ordered the Payment [c] Ante of the Money ; for during the Infancy no Fine could f^^JsL'J' have been levied. * Willis 47Z 1^^ Term. S. Trin. 171 8. cife 134. Willis verfus Lucas. Lord Chan- cellor Par ^^'■. ^Ohn Lucas was felted in Fee of fome Hoiifes in Lon^ 7 Land wthc J don, and of fome Land in Gavelkind in Leivi/lMni J^^Tso ^^^ Kent, and having three Sons John, James, and Sa- for°his Life, mud, made his Will, by which he devifed all his Heil-s wviii'T Lands in Kent and Houfes in London to his yoiingeft a Rent ' ° Son Samucl (the Defendant's Hulband) for his Life, Ihc'eWeV'' lie or his Heirs paying out of the Rents of the Son for Premiffes i o /. a Year to the Tellator's eldeft Son John and afSr the Lucds for his Life, and alfo i o /. a Year to the I eif a- Deathofthe fQj-'g fgeond ^ou James for his Life, and alfo lo/. a muilh wife. Year to the Teftator's Daughter Mary (now the Wife ^The"firft ^^ L^a.vid White) for her Life, alfo paying his Lega- &c. Son of cies ; and that after the Death of the faid Samuel Lu- the fecond ^^^ ^^^ ^f^^ Defendant Mary his Wife, then the Son or The Wife Sous of the faid Samuel Ihould have all the faid Pre- fJcondSon Hiifles equally between them, they or their Brothers hadanEftate pgyjng the Legacies as abovefaid ; and if no fuch impiicatio^i. Sons, then the Daughter or Daughters of Samuel to bytheOpi- j-,^^.g ti^e fajj Premiffes equally amonull them, pay- nion of , ^ •' ^ ■» r y Lord Chan- ing, ijC. ccllor Piii- .*4V. The Teftator died, alfo James Lucas died leaving Ifllie, then John Lucas' the eldeif Son died leaving Ifllie a Daughter, after which Samuel Lucas died, leaving the Defendant Maty his Widow and three Infant Chil*- dren, whereupon the Daughter ol the laid John Lucas brought an Ejeilment for the Recovery of the Preniiffes againll the Defendant the Widow of Samuel, who giving iji Evidence an old iubliftlng Term of the Premifles, the laid Daughter the Heir of the 1 eftator's eldeft Son John Lucas, preferred this Bill in Equity for an Ac- count of the Rent of the Premiffes againft the De- I fendant De Term. S. Trin. 171 8. 475 fendant the Widow of Samuel^ and to fet afide the old Term which had been made ufe of aguinft the Plaintiff at Law. The only Qiieftion was, whether the Defen- dant Mary Lucas the Widow of Samuel had an Ellate for Life hy Implication, the Premiffes in Qiieftion being devifed to Samuel for his Life, and after the Death of him and Mary his Wife, then to the Sons of Samuel-, or whether during the Life of the Wife of Samuel, the PremilTes lliould de- fcend to the Plaintiff the Heir at Law of the Tefta- tor, as an Eftate undifpofed of by the Will, durino- the Life of Samuefs Wife. It was urged for the Plaintiff, that it had been fettled by many Authorities in the Books -vi^. the 13 H. 7. 17. Jones (Tho.) 9I. 2 Lev. 207. i Vent. 203. Vaugh. Rep. 259. (Gardiner verfus Sheldon) that no- thing lefs than a (a) necelTary Implication could intitle ^a) Ante the Wife to an Eftate for Life, and the known Diver- ^''^'^'>^ vcr- fity was, where I devife Land to my Heir after the Death of my Wife, this is a Devife by Implication to her for Life ; but if I devife Lands to my Se- cond or Third Son, after the Death of my Wife, this is no Devife by Implication to her, but the Lands during her Life fliall defcend to the eldeft Son as Heir. And therefore in this Cafe, the Devife being to Samuel the Teitator's youngeft Son for Life, and after the Death of him and his 'Wife, to Samuefs Son or Sons, and Samuel being dead leaving Sons, thefe were excluded until after the Death of the Wife, and ilie could not take, there being no neceffary Implication that llie ftiould ; fo that in the mean 6 E Time 474 De Term. S. Trin. 171 8. Time the Premlfies muft defcend to the Plaintiff (the Teftator's Heir at Law) as an Eftate imdifpofed of. It was moreover inlifted by Serjeant Che/hire, that the Payments of the feveral Annuities of i o /. out of thefe Premiffes were out of the Cafe, for whe- ther the Wife of Samuel, or the Heir at Law of the Teftator, was to have the Premiffes, thefe feveral An- nuities were not to be paid during the Wife's Life after the Death of Samuel, it being faid in the Will, that Samuel or his Heirs were to pay thefe Annuities, and not that the Wife Iliould pay them. To all which it was anfwered, and Lord Chancel- lor fo held, that the Defendant Samuel's Widow was intitled to the Premiffes during her Life by Implication. He obferved it had been admitted, that if the De- vlfe were to the Heir after the Death of the Wife, in fuch Cafe flie would take by Implica- tion ; and that in this Cafe it appeared to be equally the Intention of the Teftator, that his Heir at Law fhould not have the Premiffes, and that they lliould not defcend to him ; for that the Will appointing the Heir fhould have a Rent of i o /. a Year out of the Land for his Life, plainly implied he fhould not have the Land itfelf. That thefe Rents were not to fink upon the Death of Samuel, and during the Life of the Wife, they being exprefly given to the feveral Annuitants (which were three in Number) for their Lives, and were plainly intended as a certain Provilion for all thefe Annuitants in all Events during their Lives; fo that it was, as it thefe feveral Annuities were in the firft place given by the Will to the feveral Annuitants, and the Lands afterwards given fubje£l to thefe Annui- 4 ties : De Term. S. Trin. 17 18. 47 <^ ties ; from whence it feemed to hav^e been the I'efta- tor's Intent, that whoever took the Land Ihould pay the Annuities and that Samuel\ Wife Ihould be hable to the Annuities, which appeared in the Caule (and without Contradi£lion) to have been all along paid by her lince her Hufband's Death. In the next place it was argued, that if this Point were againft the Widow, yet ftill as to the Gavelkind Lands, (for the {a) Lands being in Kent^ mull be in- ^^^-^^^^ '|^' tended to be Gavelkind, unlefs they appear to have been difgavelled) Samnets Wife muft have them all for her Life, and not a third only. That in Gavelkind all the Sons were as Daughters or (h) Coparceners, and if a Man had three (c) Daughters, Ss^'by'^the and were to devife his Lands to his third Daughter Cuftom. after the Death of his Wife, fhe would have an Eftate 265! for Life in the whole by ImpHcation; for all the ('') ^ ^^'■"* Daughters make but one Heir, and whatever defcended muft defcend to all of them, for lince the Lands could not defcend to all of them during the Wife's Life, they could not defcend to any of them, but the Wife fhould have the whole by Implication. That to this EfFe£l was the Cafe in B. R, (d) Read- W^^^^- ing verfus Royfion in Lord C. J. Holt\ Time, where a Man had two Daughters, and feifed of Lands in Fee, devifed them to one of his Daughters in Fee; upon which the Qiieilion was, whether the Devifee took the whole by Devife, or a Moiety by Defcent ; and adjudged on great Conlideration, that llie took the whole by Devife ; for that one Coparcener only could not poiiibly take by Defcent, the one Daughter not be- ing Heir, and whatever defcended muft defcend to both Daughters, for it could not defcend to one Daughter only! So 476 De Term. S. Trin. 17 18. So in the prefent Cafe, thefe Gavelkind Lands would not upon the Death of Samuel defcend to the Sons of ail the three Brothers, in regard the Sons of Samuel were not to take until after the Death of Samuel and his Wife, and if they would not defcend to all^ they could not defcend to any, confequently the Defendant the Wife of Samuel Ihould take the whole Gavelkind Lands during her Life. Lord Chancellor faid nothing as to this, but ftrongly inclined for the Defendant the Widow of Samuel, that fhe took an Eitate for Life by Implication upon the firif Point. However, It being Matter of Law, and an ill penned Will, the Court ordered a Cafe fhould be made of it, and that it ihould be referred to the Judges of B. R. Anonymous. Cafs 135. ferior Court T F oue bc fued in an inferior Court for a Matter out I am fued for 1 q^ []-,£ Jurifdiclion, the Defendant may either have a Matter . . •' out'of'the a Prohibition from one of the Common Law Courts of '^"'"vaS'°"' ^Veflminfler Hall, or in regard this may happen in a tionTime, Vacation when only the Chancery is open, he may tionTitfin ^^^^^^ tihat Court for a Prohibition ; but then it muif Chancery on appear by Oath made, that the Fa£l did ariie out of that'tile' the»^juriidi(0:ion, and that tlie Defendant tendered a Matter is foreign Plea, which was refufed. And if a Prohibition jurifdiaion; has bee.n granted out of Chancery improridi, and but no Affi- xvithout theie Circumftances attending it, the Court eavit isne- r / i ^c/Tary Will grant a Super jede as thereto. vvliere, on tlie Face of the Declaration, the Matter appears to be out of the Jurifdiflion, But De Term. S. Irin. 171 8. 477 But in Cafe it ftiall appear on the Face of the Declaration, that the Matter is out of the Jurifdi£lion of the Court, then a Prohibition will be granted without Oath of having tendered the foreign Plea, and ,^^ y^ in thefe Cafes Equity imitates the {a) Common ^-''k. 549- T & port Saun~ ^-•'^^' derfon\txi\i'i Clogget. And in a late Cafe which was moved the laft Seal after Tr'm. Term, where the Court had granted a Prohi- bition to an A6lion brought in the Courts at London^ upon an Affidavit that the Matter arofe out of the -' ""P"': r _ _ _ ing general- Jurifdlction, it appearing at another Day that the Dc- ly you ad- fendant had imparled generally (which admitted the ni'diaion " Jurifdi£lion) and fo could not afterwards be allowed to ^'^^ cannot plead a Foreign Plea, the Court granted a Supersedeas pieadTVo- to the Writ of Prohibition. ^eign Pka. 6 F D E 478 D E Term. S. Michaelis^ 1718. Cafe 136. jttheMis. Bacoii verfus Clerk Preced. in Chan. 500. ^fes Lands O^ ^ ^^^^^^ ^" ^^^ ^^ ^^"""^ ^'^^^^ ^" PolTemon, to his Wife ^^ and of other Lands in Reverlion after the Death Ind^fte'rher of A. and having a Son and Daughter, devifes the Deadi to his Lands which he had in PolTellion, to his Wife for upon Condi- Life, and from and after the Death of his Wife and t'.o" fopf^y aUo after the Death of the Leflee for Life of the other 1000/. with- Lands, he devifes thefe refpe£llve Premiffes to his Son in a Year ^^^ j^j^ j^gjj-g upon Condition, " that the Son ihouid Death of " within a Year after the Death of a third Perfon, ^pfovTio'' " one £//^. Uerne^ (after whole Life it was faid, that if the " but not ptoved, that the Teftator had other Lands not paid the " in Reverfion) pay icoo/. to the faid Teftator's Daughter « Daughter, with a Proviio tliat upon Non-payment and receive " I he Daughter might enter upon the Premiffes. the Profits till Pa\ment ; 'J. S. dies living the Wife, the Daughter fliall have the looc/. during the Life of the Mother, and in Default of Payment Equity will decree a Sale of the Reverfion. Elizabeth Heme dies, and a Year after her Death the Daughter marrying brings a Bill for a Sale of this Re- I veriion. De Term. S. Michaells, 171 8. 479 verfion, in order to raife the looo/. Portion and In- tereft from the End of the Year after Elin^aheth Heme's Death. It was objefted for the Defendant, that a S-ile of a Reverfion was hard in any Cafe, and the Heir fa- voured in Law ; and if the Reverfion lliould be fold to pay this Portion and Intereft, it would deftroy the Proviiion for the Son, who as Heir was more to be favoured than a Daughter. That though it was admitted a Devife of I.,nn(!s to an Heir upon Condition to pny did raife a I'lull: in Equity (the Condition being void at Law, in regard none but the Heir could take Advantage thereof) and it being a Truft, Equity would dired a Sale or Mort- gage to raife the Money, yet in this Cafe the Wiil had prefcribed and chalked'out a Remedy for the Daughter's Recovery of her Portion, ^7■^. by an Entry upon the Eftate, and that fnew^ed the Daughter was not to have the Portion until the Elilatc was become capable of be- ing entered upon, namely, when the Ellate in Rever- fion was fallen into PolVeilion, and the Teftaror havincr prefcribed this Remedy, the Daughter ought not to take any other ; befides, it was unreafonable that the Son Ihould pay any Thing until he had received fome Advantage by the Will. But on the other Side it was anfwered, and decreed t)y the Court, that a Reverlion was an Eftate, and a beneficial one too, and might as well as any other Ertate, be devifed upon Condition. That if the Mother or Tenant for Life were dead, and Elizabeth Hern were living, it would be granted the Daughter could, not recover the icoo/. Legacy, though the Son were by the Death of the Mother, or of the Te- nant 480 De Term. S. Michaelis, 17 1 8. nant for Life, come Into PoiTefTion : And if fo, to tye the Daughter down to ftay till Elizabeth Heme was dead, though the Son were come into PoiTeflion, and on the other Hand not to let the Daughter have it on the Death of Elii?^abeth Heme, would be very unequal. That by the exprefs Words of the Will the Legacy was to be paid to the Daughter within a Year after the Death of Elizabeth Heme, and as it was a Portion, and a Daughter's Portion given her by her own Father, it was to be favoured. lliat fuppofing it to be a Hardihip for the Son to pay it before fuch Time as the Eilate given him by the Will was come into PolTeliion, it might alfo be a Hardfhip on the other Hand, for the Daughter to Itay until after the Death of the Mother, who might live as long as her felf, and then it ^'ould not anfwer the End of the Gift, which was to prefer her in Marriage. But that in Truth this was not any Hardfliip ; for the Legacy would carry Intereft from a Year after the Death of Elizabeth Heme, which Intereft when com- puted by a Mafter, would be made Principal and carry {a) Videante {o) Intereft, and fo it would be no more a Hardftiip Butler VST- ^^ j-j^g gQj-i J.Q Cgjj j.|^g Reverlion mrv, than after the lus Dunconib r ^ ' J ^oQi Brown Death of the Mother, when the running on or Intereft "Barkham '^^'^-'^il'^ ^^^6 increafcd the Burthen. And by the fame Reafon the Daughter muftttay till both the Lives were dropt ; that if the Hardfhip muft be on one' Side or other, the exprefs Direction of the Teftator ought to take place and be purfued. For which Reafons the Mafter of the Rolls decreed the Portion to be raifed by Sale, unlefs the Son fliould pray it might be done by Mortgage. I This De 7erm. S. Michae/is, 17 18. 481 This Decree was appealed from to Lord Chancellor Parker who affirmed the fame. Sha/es verfus Sir John Barrhmon, &' ^'^" '^^^ *^ <--' Lord Chan* ecojitra, <^"=>- p^r- ker. C I R Charles Barrington had fettled an Eftate ^ upon himielf in Tail, Remainder to his Second Coiifin the Defendant (who was prefumptive Heir to the Honour in Cafe of Failure of IlTue Male of Sif Charles) for Life, Remainder to the Firft, ilfc. Son of the Defendant in Tail Male, Remainder over, with Power of Revocation referved to Sir Charles who fome- time afterwards revoked the old Ufes, and limited new ones upon his younger Sifter Mrs. Shales for Life, Remainder to her Firft and every other Son in Tail Male, they taking the Name of Barring- ton, i^c. Tlien Sir Charles died, and the Honour defcended to the Defendant, upon which Mrs. Shales' s Infant Sons brought their Bill againft Sir John Barrington to eftabliili the Deed of Revocation, and Limitation of new Ufes. And the Defendant Sir John brought his Bill to fet this latter Deed aiide, and to recover fome Legacies given him and his Children by the Will of Sir Charles. Afterwards the Defendant* Sir John dying, his two Infant Sons revived the Suit, and entered into very long and expenfive Examinations ; but the Deed of Re- vocation and new Settlement was fully proved, and the Proof againft it no ways politive, but circumftantlal only, as to fevcral Expreftions of Sir Charles declaring ^ G that ~-lTT~ — •" — - — " 482 De Term, S. Michaelis, 17 18. that he intended his Eftate lliould go with his Honour, and that it would be a v^ery ill Thing in him to do otherwife, iffc. Words no j^gyd Chancellor : Words can have no Weight againft a gainftabecd Deed fo lolemnly executed as this. Therefore the foicmniv' Deed of Revocation and Limitation of new Uies muft Itand. Heir at But it being infifted, that the Defendant ought to MaTe'ToTit P'"y ^°ft^ ^^PO" his Crofs Bill, fo far as it controverted Honour of the D'^ed : the Family, if probable Caufe to contend for the Family Eftate, fliall not pay Cofts. His LordJJjip denied Cofts j for that though the De- fendant was not Heir at Law, yet he was very like one, being Heir to the Honour of the Family ; he found by Deed an Eftate vefted in him in Remainder, and not being privy to the Deed of Revocation, it was lawful, nay reafonable for him to make this Enquiry. Be- fides, but a fmall Part of the Suit was carried on by the Defendants Father ; and the Defendants themfelves were Infants, and had good Ground of Suit for their Legacies ; and a great Eftate being given from the Ho- nour, it was fufticient for the Plaint Ift Shales to go a- way with fuch Eftate, without having Cofts into the Bargain. C'^'<^^38. Harris verfus Lee. At the Rolls. Chan. 502. ^^ S. had given his Wife the foul DIftemper twice, Eiron gives -^ upon which the Wife leaving her Huftand and fo^iTDiftem- coming to Town to be cured, borrowed 30/. of the per, J. icnJs Plaintift^ to pay Doftors and Surgeons and for Necef- theWife ^ ^ ^ r. . 30/. 10 pay 2- lanes, tiie Dodor for her Cure ; Baron ilcvifcs Lands for the Payment of his Debts ; this 30 /. is a Debt of die Hufband, and ^. u 2 Creditor in the Dodor's Place- De Term. S. Michaelis, 171 8. 485 faries ; afterwards J. S. devifed fome Lands for the Payment of all his Debts and died. The Plaintiff brought his Bill againft the Triiftees who were impowered by the Will to fell the Land . for the Payment of Debts, in order to be paid this Money, as a Debt within the Truft. ObjeSiedf A Wife cannot by Law borrow Money, nor contrail a Debt by borrowing Money, ev^en though fuch Money be afterwards applied for NecefTaries ; be- . caufe it was in her Power to wafte the Money ; (a) (a) i Saik. and if the Larv be lo, it would be hard to have a dif- 2^7- ferent Rule of Property in Equity. Sed per Cur : Admitting the Wife cannot at Law borrow Money, though for NecefTaries, fo as to bind the Hufliand, yet this Money being; applied to the Ufe of the Wife for her Cure and for Necefiliries, the Plaintiff that lent this Money, mufl: in Equity ftand in the Place (b) of the Perfons who found and provided (-'') Vide fuch NecefTaries for the Wife. And therefore, as fuch /,^, verfus* Perfons would be Creditors of the Hufband, fo the ^'W'^- Plaintiff Ihall ftand in their Place and be a Creditor alio, and let the Truftees pay him his Money and ii]s;ewife his Cofts. Chaplin veiTus Horner &' ux\ cife 139. At the Rolls. ^Ames Chaplin the Plaintiff's Father, en his Marriage ^^'^."^^^°- r 1 _ , " _ ^ tr> r.fy IS co\e- •^ with the Plaintiff's Mother, fnov/ the Wife of Defen- "anted to be 1 * 1 * dant Horner) in Conlideration of 3 coo/. Portion, made 3'"?^°"^)% a Settlement of Land to the Uie of himlelf for Life, o"" i-^"'' -'^"'^ to Lc fettled ■Cve- on J. in Fee, the Heir and not the Executor of y?. fliall have it. But If J. himfelf hns received any of this Money, this is a good Payment, and (hall not be repaid by J.'s Executor to his Heir. Alfo if A. m this Cafe dies, J.'s Keir iliall recover tt e Remainder of the Mcney n in I'ail, Remain- der to B. in Tail, to the Intent that the Iffue in ^'ail and the Remainder Man might have the Benefit <.)f the Chance intended them by the Perfon creating the I'ruit, in Cafe the Tenant in Tail Ihould die be- fore fuffering a Recovery or levying a Fine. But that here the Plaintiff's Father being to be Tenant in Fee of the Land when purchafed, and having an ab- folute Power over it as well by Will as otherwife, and 6 H this * In the Cafe of - - - - - verfus Marjfj in Er.fier Term 1723, at the Rolls, where Money was articled to* be laid out in Land, and fettled on the Firft and other Son in Tail, and the Court, in order to prefervc the Chance- to the fecond Son, would not decree the Money to the elded Son, but ordered the lame to be inverted in a Purchafe purfuant to the Articles -, the eidell Son got oiie to lend him a Purchafe, and to fettle it with an Intention forthwith to fuller a Recovery, and to reconvey the Kliate back to the Seller-, and tiiough all this appeared by the Mallei's Report, yet His Honour (after fome Htfitation) allowed it. S^Uiere^ Whether the Money mighc not better have been paid to the eldeft Son? 486 Be Term. S. Mlchaclis, 17 18. this 550/. being as yet adUially but Money, it Ihould (as he urged) be looked upon only as Perfonal Ellate. But the Mafter of the Rolls contra-, that thk6$o-I. ought to be taken as Land, and go to the Plaintiff (a) Vide the (a) as Heir ; the Dilpute in this Cafe being not be- Cafeof5.«-^ jj^j. ^.j^^ p^j.. i-,ji-,^j:eif j-j-jg Father, and the Party damore vcr- J ' , . - . ■', fus Scuda- who was to pay the Money, but betwixt the Heir and Preced. in Executot, who became inticled to this Money fubje6t to ciian. 544. the Covenant ; and it was the rather to be deemed a termination' Real Ellate, becaule this was Part of the Marriage bw Lord Agreement, and the Covenant was - made in Conlide- ration of a Marriage and a Marriage Portion. •*C)^ Wherefore the Court decreed that the 650/. fhould be brought before a Mafter for the Benefit of the Plain- tift' (being an Infant) but would not decree it to be laid out in Land, becaufe if the Plaintiff fhould die before fuch Difpofition it would go to her Heir of Courfe. Sir Robert Burdet verfus Hopegood. Cafe 140. Lord Chan- cellor Parker. One devifes, LS'^no^ Robert Burdet Efq. in the Life-Time of Sir Robert Son at the Burdet the Plaintiff's Grandfather, being leiled in Fee SiTth^Vo" of the Manor and Priory of Modney in the County of J. 5.' The NorfolKhy his Will dated i 7th Dec. 1 7 i i. devifed the iJving his""' PremifTes, m Cafe he fljould leave no Son at the Time Wife prive- ^jT f^j^ Death, to his Coulin Francis Hopegood and his withTson'; Heirs, and as a Reward for the Trouble which the this Po * -r r for Life, I COO /. per Annum, was iettled upon the Marquils of Dorchefler for Life, Remainder to his eldeft Son the Kingjlon for Life, Remainder to Truftees for Remainder to his Son the Hufband Lord jLv.»,,ij,«r, , - Remainder 10^^ Years, in Truft that if it Ihould happen there ihould be only one Daughter by the Marriage, fiich Daughter ihould have 20000 /. for her Portion at her Age of twenty-one or Marriage, and in the mean rSaughte^ Time 300/. per Annum {ot her Maintenance until the if but one, ^ y£ twelve Ycats, and afterwards 400 /. per Annum to Truflees for 1000 Years for raifing 20000/. for ment)-one until the Portlott ihoi\ld become due ; the Maintenance, or Marriage, ^^^^|| .^^ ^j^^ Portion, to be raifed by the Truftee? "' and in the ^ , ^ r- i . j> ;S el- and in the " rr I r 1 ^ mean Time ther by the Rents Ijjues and Projiis, or by Sale or ri|r I Mortgage; nance and to be raifed by Trudees either by Rents and Profits or by Sale or Mortgage, and to' be paid quarterly; tlie firft Payment to be made at fuch of the ufual P'eafts, as fhall iic>:t happen after the Father's Death. Father dies leaving one Daughter, and the Grandfather living. Bill pray'd a Mortgage of the Reverfion for the Infant's Maintenance, but the Court Jtrongly inclined againft it. (a) 9 Annae. as was In the Report of this Cafe in Precedents in Chancery it is ftated, if by the Words of the Adl of Parliament, this Maintenance Money IS to be raifed out of the Rents and Profits of the Term, and that the Plaintiff De Term. S Michaelis, 171 8. 489 Mongiige ; the Maintenance to be paid quarterly, md the jirfl of the faid Payments to be made at Juch of the four ufiial Feafls as JJmdd next happen after the Deceafe of Lord Kingfton the Husband. Lord Kingflon died leaving IfTue by Rachel a Son (now Marquils of Dorchefier) and a Daughter named Frances, and the Lord Kingflon the Hulhand being dead , about five Years, this Bill was brought for the 300/. per Annum Maintenance Money, and to have it raifed by Sale or Mortgage, in regard it could not be railed bv the Profits, the Grandfather the prefent Duke of Kingfton being alive and having an Eiiate for Life in the PremiiTes. For the railing of the Maintenance by Sale or Mort- gage, it was urged that whenever the ^laintenance or Provilion for Children came in Qiieftion, it always re- ceived the m.oft favourable Contl:ru£] ion that might be ; Nay fometimes in favour of fuch Provilion, the Court had oftered Violence even to the Words ; and fo it was done in the Cafe of Gerrard verlus Gerrard [a) where ^'^^^ ^'""• a Portion being fecured to a Daughter upon a Truft of cited mm in. a Term for Years payable at her A^e of eighteen or ^^^p^''^^ Marriage, which Ihould firii happen after the Death of ius Dun. the Father and Mother, in that Cafe the Portion was decreed to be railed for the Daughter at her Age of eighteen, though in the Life-Time of her Mother. And as this had been done in the Cafe of a Portion, fo a fortiori it ought to he done for Maintenance which was more necelTary than a Marriage Portion, in 6 I that Plaintiff was for having that extended to a Sale or Mortgage by an equitable Conftrudion only ; whereas this is a Miftake, the Words [Sale or Mortgage] being expredy mentioned in the Adl. And tlie Reader will obfcrve that good Part of this Argument is founded thereon. comoe. 490 De Term, S. Michaelis, 1718. Mortgage of a Term decreed to raife Main- tenance Mo- ney. that a Child could not fubfift without Maintenance or Bread, but might live without Marriage. That the Hardfhip of raifing a Maintenance by the Sale of a Reverfion was not now to be objefted, in regard the Owners of the Eftate, who could put what Hardlliips, Conditions or Terms they pleafed upon it, had ordered the Maintenance to commence and be paid at the firft quarterly Feaft after the Father's Death, and to be raifed by Profits, Sale or Mortgage ; which mull be underftood by 'Profits if the Tenants for Life were both dead, or elfe by Mortgage or Sale, if either of the Tenants for Life were living ; and where thefe Methods were by the exprefs Words of a Settlement prefcribed, it was blotting them out, it was making a new Settle- ment to objecl to fuch Method of railing the Mainte- nance ; for if thefe Words were not to take Place, it would be in vain to make Settlements ; and Sir Thomas Vowis quoted the Cafe of Lord Herbert decreed by the late Mafier of the Rolls, wherein the late Lord Herbert gave his Real Eftate to his Nephew, fubje£l: to a Terra for Years which was declared to be upon Iruft by Sale or Mortgage, or with the Profits, to raife 3 coo/, a-piece for his two Sifters, and 1 00 /. per Annum Maintenance Money, and the Eftate happened to be fo incumbered with Jointures and Rent-Charges, that there was not enough to pay the Maintenance ; upon which the Court decreed a Mortgage of the Term to raife it. It was admitted that the raifing of Money upon any Reverlion was indeed a difadvantageous way of doing it : However, if it could not be raifed any other way, it muft be raifed at a Difadvantage. On De Term. S, Michaells, 171 8. 491 On the other Side it was faid, that in any Cafe to Revcrfion fell a Reverfion was prejudicial to an Eftate ; but to fell *• J ^ ' never iTiort» a Reverlionary Interelt tor Maintenance Money w^as s^ged to never known, nor could any Precedent be produced for [e"nancer" it ; efpecially where it was a Matter intirely in the "^^^^''^ ^^^ Difcretion of the Court, and where the Child had a abk to'kTep Mother fo able to maintain it, a Mother who in this ^^^ ^^''''• Cafe had 3000/. ^er Annum Jointure. That it would be a Cafe of infinite Hardfhip to the Eftate ; for at this Rate there mult be an annual if not a quarterly Mortgage, the Maintenance being to be paid quarterly, and in a Cafe too where the Intereft could not be raifed but mulf be made Principal, and this Intereft muft carry Intereft, and all thefe Mortga- ges be liable to Foreclofures ; that it would occafion a plain Hardihip even to the Daughter herfelf; for the fame Fund which was to raife her Maintenance was alfo to raife her Portion of 20000/. when ftie Ihould come to Age or be married ; and if the Intereft were to break into it by the frequent Charges of annual Mort- gages and loading the Eftate with Intereft upon Intereft, it would then (not being 1 000 /. pr Annum) prove de- ficient for the railing the Portion wherewith the Daugh- ter was to be married and preferred in the World. Alfo, confidering the Circumftances of this Cafe, it fhould be intended that this Maintenance Money was to be raifed when the Term commenced, or upon the Death of the Father, by which the Term came in- to Pofleflion, fo as to yield Rents and Profits, which was one of the Methods whereby the Maintenance was to be raifed. T'hat 492, De Term. S. Micbaelis, 17 18. That at leaft there could be no Colour to aflc for the whole 3C0/. per Annum, but only for fo much as it mi^ht be reafonable a6lually to lay out in her Mainte- nance regard being had to her tender Years. To which it was replied, that the other Side were arguing againft the exprefs Direftions of the A£1 of Par- liament, for the plain Words of it told both how and when the Maintenance was to be raifed j how ? by Rents and Profits, Sale or Mortgage ; when ? why the firft Qiiarter Day after the Death of the Father. That the KQ: of Parliament faying the Maintenance fliould be raifed by Profits, Sale or Mortgage, if it could not be raifed by Profits, (becaufe but a Reverlion) it muft neceffarily be raifed by Sale or Mortgage ; that the A6I: exprefly faid fo, the Parties interefted in the Eilate, and who had a Power over it had fo fettled it, and then it could be no Hardlliip when confented to by all Parties ; and this was now not a Matter difcretionary, but de Jure and of Right, ex De'oito Jiiflhu, which {a) Vide the Court cannot refiife, a Matter of Trull being as of slw!/;/'' much a {a) Right as a legal Intereft, and it would be verfiis San- Jj-j ^ain to make Settlements if the plain Words of them were not to be obferved, and from which, if a Deviation were to be once allowed, none would know how to give an Opinion thereupon ; and as to the other Side's demanding Precedents, they ought to (hew Precedents where a Settlement or Aft of Parhament everfpoke fo plain, and yet did not prevail. That as to the Charge of frequent and annual or quarterly Mortgages, it was near five Years lince the Father's Death, and yet till now, no Mortgage had been demanded, and when a Mortgcige was made it might be for fo much as ihould be fufficient to main- 2 tain dys. De Term. S. Michaells, 171 8. 49^ tain the (>hilJ for three or four Years, and in the mean Time Part of tlie Money raifed might be put out. And with Regard to the Argument, that this might hinder the raifing the Portion, that might never happen to be due, whereas the Maintenance was already due. And to fay, that what was now due, and for Main- tenance too, fhould not be raifed, becaufe it might hinder what might never be due, was ftrange ar- guing; indeed if the former Was not to be paid, the latter was not likely to be ever due, for the Child muft be ftarved and never live to have her Portion. Then as to the Mother's Jointure, though allowed to be large, it was however agreed and intended that the Mother Ihould have it clear; and yet fhe main- tained the Son, whofe Education by reafon of his great Birth muft be very chargeable, and this was a Load upon the Jointure, in relpeft to which the more liberal Maintenance ought to be made to the Mother ; as it was {a) ufual for the Court to allow a Parent the (a) Vide greater Maintenance for the Heir, when younger Chil- Y?'" ^^" ^ -^ -jir JO Harvey ver- dren were lert unprovided tor. fus Harvey. Lord Chancellor : I fhall conlider the Infant's Good, ^"fant's and take Care that her Demand of Maintenance fhall be confi- not defeat her other Demand of her Portion, it being ^^'^■fl^,, one and the fame Fund that is to provide both. It is a Mainte- hard Cafe to mortgage a Reverfion, heap Interefl: upon "^^''^^^'^o- Intereft, and fubjeft the Eftate to a Foreclofure, for it may come to fuch a Sum as that many Per- fons may be under a NeceiTity of calling in their Mo- ney. 6 K I'hough 494 ^^ Term. S. Micbae/is, 1718. Though I admit I muft take the A£l as I find it, vi^. the firlt Qiiarter-Day after the Death of the Fa- ther the Maintenance Money is to be railed by Profits Mortgage or Sale; yet this Court which is the Guardian of the Infant, mult confider the Good of the Infant, and it may be for her plain Benefit and a Kindnefs to her, that her Maintenance fhould not be raifed. Wherefore let the Mailer fee what is the Value of the Eftate charged with the Maintenance and Portion, together with the Incumbrances that are upon it, and this will influence my Judgment. In the mean while I cannot but obferve that the Me- thod propofed by Mr. Vernon for raifing at firil more Money than there might be Occafion for, to prevent frequent Mortgages, and to put out the Refidue for which there fhould not be a prefent Occafion, would not anfwer the Inconvenience; for the Money thus raifed, and for which the Eftate would be loaded with Intereft, mull: for fome Time lye dead in the Matter's Hands, And as in the Cafe of Corbet and Maidrpell, Lord Corpper declared he would not go beyond the eflablillied Precedents in Cafes of that Nature, as taking it that the Court had already gone too far, fo I for my Part fliall obferve the fame Rule, not having been able to find one fingle Precedent for mortgaging a Reverlion for Maintenance, and what makes it ftill lefs rea- fonable to do fo in the prefent Cafe is, that the Noble Duke the Grandfather has offered in Court to maintain both the young Marquifs the Son and the Lady Frances the Daughter. ^ Anonymus De Term. S. Micbaclis, 17 1 8. 49^ Anonymus. cafe .^^. At the Rolls. TN this Cafe {int. aY) it was faid by Sir Joseph Je- As Legatees ■■■ kyll, Mafler of the Rolls, that as all Legatees are pIi,unPro- on a Deficiency of Aflets to be paid in Proportion, fo p^'"^°"' '** if the Executor pays one of the Legatees, yet the reft cutor pays fhall make him refund in Proportion ; nay, if one of ""^ i-egatce, r_ ' y ' ana there li the Legatees gets a Decree for his Legacy, and is paid, not enough and afterwards a Deficiency happens, the Legatee who IJf'J^egatee recovered fhall refund notwithftanding, in Imitation of who is paid the Spiritual Court where a Legatee recovering his Le- i„Vropor- gacy is made to give Security to refund in Propor- ^'""i fo tion, if, iSfc. * gatee%e-" covers his Legacy in Equity, and there Is not enough to pay the reft, he (hall refund; /ecus if theDefeft of AlTets arifcs by the Wafting of the Executor. * Vid; i Vern. 26 & 93. But if the Executor had at firft enough to pay all the Legacies, and afterwards by his wafting the AfTets occafions a Deficiency, in fuch Cafe the Legatee who has recovered his Legacy, fhall not be compelled to re- fund, but ftiall retain the Advantage of his legal Dili- gence, which the other Legatees negle£led by not bringing their Suit in Time, before the Wafting by the Executor ; whereas if the other Legatees had commenced their Suit before fuch Wafte committed they might have met with the like Succefs, Et Vigilan- tikis nan Dormientibus jura Suhveniimt. This Cafe I put to Mr. ^Vernon, who was of the fame Opinion. Turton 49^ i)^ Term. S. Michaelis, 1718. Tiirton verfus Bcnfon. Cife 143. Jt the Rolls. 2 Vern.764. ASononhis "jV/fR. Twrw^ Barrifter at Law treated for his mar- to h"'?^ ''' ^ ^ J'yJ'^g ^1^' ^^^fon?, Daughter, and Mr. Benjon 30C0 /. Por- [}-,£ Father propoling to Mr. Turtons Mother to give his hisWife,and Daughter 300c/. Mr. Turtons Mother, though Ihe at privately £^^ thouufit it too httle, vet aftetwards came into the without '" , r 1 T-i r 1 t • Noticeto his Match, and agreed to iettle Part or her Jointure upon Parents (Fa- ^ g^j^ Tiirton lu Poflellion, and in the Marriage tner or Alo- _ _ i i i r r • ther) that Writings under the Hand and Seal of Mr. Benjon it IhSilria^e "^^'^^ mentioned that his Daughter's Portion was to be gives a Bond ^Qoo/. but before the Marriage It was privately a- Faiher^o'' g^ced betwixt Mr. Tmon and Mr. Benfon that Mr. Tur- payback jq^} fliould give a Boud to Mr. Benfon, to pay back to thTportion him 1 000 /. at the End of leven Years without feven Years intercft, of whIch Bond Mr. Turtons Mother had no afterwards ; , this Bond JNOtlCC. void in E- quity, and will not be made better by being afligned to Creditors. The Marriage took Efte£l;, and Mr. Benfon owing to S\r Theodore Janjfen 2000/. affigned over Mr. Turtons Bond to Sir Theodore, as an additional Security. Mr. Ben- fon died ; Sir Theodore's Demands were afterwards paid, and Mrs. Benfon the Widow and Adminiftratix of Mr. Benfon ailigned Mr. Turtons Bond in I'ruil for the Benefit of Mr. Benfons Creditors who were many, and (as it was faid) more than his Ail'ets could pay. Mr. Turton brought his Bill to be relieved agalnft this 1 000 /. Bond, and Benfons Creditors a Crofs Bill to have the Benefit of it ; the Caufe had been greatly debated before the Mafler of the Rolls who relieved a- gainft the Bond by granting a perpetual Injundion thereupon. 4 His De Term. S. Michaelis, 1718. 497 His Honour declared that the Creditors of Benfon One having could not be in abetter Condition than Benfon himfelf; ccimthe" and as to Sir Theodore Janffen, it was to be confidered ^"^"7 *^"= he had no legal I'itle to this Bond but only an equita- XI^JardT ble AfTignment ; and therefore having a Security which ^^'^^^ l^ ^'^'^ was not good in Equity, he could not be in a better Coniidcra- Condition than Benfon himfelf was ; that fuppoiing a u°f!tisficd Man fliould aflign over a fatisfied Bond as a Security to another for a juft Debt, the Affignee could not fet up this no'^NotTce Bond in Equity, which being fatisfied before could re- "^ ^he ceive no new Force from the Aflignment. y« die"purj chafcr can have no Avail of this Bond. That it was incumbent on any one who took an Af- fignment of a Bond to be informed by the Obligor concerning the quantum due upon fuch Bond, which if he negle£led to do, it was his oxVn Fault, and he Ihould not take Advantage of his own Laches. And with Refpefl to what had been proved, that Mr. tiirton had iince his Father in Law Benfon s Death promifed to pay back Part of this Bond, or a Debt fe- cured thereby, this was not to be regarded j Mr. Turtons Offers made and not accepted lignified nothing ; that Lord Cowpcr had often {a) faid a Man Ihould (^) vide the not be bound by an Offer made during a Treaty which ^^•''"'-•of^'"' ,,,,,£,- Y »""» verfus arcerwards broke ott, or upon 1 erms that were not ac- Vanhamn, cepted. ^ '^'^■■■"• 717- That in Cafes of this Nature, not only the Plaintiff himfelf who give the Bond, but the Father or Parent treating the Match would be intitled to Relief; as for Inftance, fuppofe a Parent were to fettle Land upon the Marriage of his Son, and the Son Ihould privately agree to pay "back Part of the Fortune, the Parent in that Cafe would be relieved againft fuch Agreement. 6 L But 498 De Term. S. Michaelis, 17 18. But more particularly in the principal Cafe, there having been an underhand Agreement made with the Plaintiff without the Privity of his Mother, and after the Plaintiff's Afteftions were fettled, (which was taking Advantage of the PalTions of Mankind) the Mafler of the Rolls decreed the Plaintifi Ihould be relieved and the Bond dehvered up. Lord Chan- Froui this Dccrce there was an Appeal to Lord Chan- cMr Par- ^^^^^^ ParkcVy who in Michaelmas Term 1719 affirmed it, faying that thefe private Agreements obtained from the intended Hufband without the Privity of his Pa- rent were highly to be difcouraged. That \fl. That the Parties ^ themfelves to this Agreement were intitled to Relief, for fo were all the Precedents ; and if they fhould not there would often be no Redrefs at all agalnft the Fraud nor any Body to alk it. And idly, the Parent as a Purchafer of the Portion to his Child, by fettling Lands, or beflowing a pecuniary Advancement upon him^ on his Marriage, muft alfo be relieved. That it was no Argument to fay Turton was in Fault ; for admitting that were true, what Reafon was there that Benjon who was in Fault alfo, Ihould be excufed? And when Benjon had been guilty of this Fraud to Turton 's Mother, it was not realonable that any a£1: done by himfelf fhould fhelter him, for by I this * In the Cafe of Roberts vcrfiis Roberts, I'rin. lys^') ^^ the Rolls^ Secret Agreements and underhand Bonds on a Marriage were fet afide, though at the Suit of the Hufband that made them, and there it is (Iiid per Cur' that tiiis perhaps may be the only Cafe, where a Perfon though particeps Cnminis Hull yet be allowed to avoid his own Afts. De Term. S. Michaelis, 171 8. 499 this Means Benfon by his own A61 would be too hard for the Court. As to Benfon s pretended Affignment of the Bond, it was upon no Confideration, but if it were, yet in I'ruth it was not an Aflignment, but an Agreement only that the Aflignee Ihould have all the fair and equitable Advantage and Benefit of the Bond that the AlTignor himfelf was intitled to ; and if nothing was due, nothing could be alligned over. Not that this Bond giv^en by Turton was fo abfolutely void, as that it might not upon fome new Confideration or delibe- rate Adi have been made good, but no fuch Ail ap- peared. And with Regard to what ISlr. Turton laid to Ri- chardjon (who it feems was one of Mr. Benfon s Credi- tors, and had joined in a Bill againft Airs. Benfon in order to have the Benefit of the Bond) that he would not fet afide his Bond, it was indeed generous, but no more than nudum Pa^um. Alfo as to what had been urged, that the Creditors of Benfon were numerous and in Danger of loling their Debts through a Deficiency of Afiets, that could be of no Weight, for ftill the Creditors of Benfon muft be paid out of Benfon s Eftate and not out of the Eftate of another Man ; and where it is faid that Creditors ought to be favoured, this muft be meant with Regard to the Teftator's Affets, not to any EfFe£ls which the Tefta- tor has wrongfully taken away or tortioufly pofTeffed himfelf of belonging to another. Therefore affirm the Decree. T,f en ^oo De Term. S. Michaelis, 17 1 8. cafei44i Tijfejt vcrfus Tijfen. At the Rolls. One devifes hirPcrfoS fRANCis Tijfm the Elder had four Sons, Francisl Eftate to his Johrty William and Samuel, and by his Will dated h^s^sondie*^ tlie 19th of Mguft 1720 gives feveral Lands of con- within Age fiderable Value to his three younger Sons feverally at and without , . r o • » r 'r xr 1 - iflue, then their rclpective Ages ot twenty-tour Years, and ap- rfonai pojnts that nouc of his faid three younger Sons fhall take the Per to the Te- any of the Rents and Profits of the Eftates thereby to fhl!r°^'ti-^'°" '^hem devifed, until they feverally attain the Age of Son fiiaii twenty-four Years, but that his eldefl Son Francis (who Produ«%f was his Executor) fhall take the Rents and Profits of the Perfonai the faid feveral Eftates to his own ufe, until the Tefta- oniy^'the" tor's faid three younger Sons Ihould attain their feveral Capital in Ages of twentv-four. Soon after this the Teftator Cafe of the ,.^ •' Infant's ClieS. Death, is'f. ihall go to the Brother. One devifes 28th O^lohev 1 7 I 7- Francis Tijfen the Son makes his J;'unger ^'' ^^'J^^' ^^^^ thereby gives all his Perfonai Eftate and the f-:ons at Produce thereof (his Debts, Legacies and Funerals be- rour"7nd in """g P^^^) ^^ the Child his Wife was then cnjient with ; the mean Jf Que Son, then to fuch Son, his Executors Ad- Remsand miniftrators or Affigns, and if more than one Son, ^"^"p ^ ^( and the firft Son Ihould die before twenty-one or tohiseidcii Marriage without IfTue, then his Perfonai Eftate Son and ^^ „q '^^ Succcllion to the Sons of his Body ; but . the Teftator ^\r Michael Armin mortgaged Pickrvorth to the Lady Diana Holies for the Term of looo Years, for fecurlng the Sum of 4000 /. and Intereft, and in the December following died, leaving Sujanna and Anne Armin (the Daughters and Coheirs of his elder Brother Sir William Armin) his Heirs at Law. It was admitted that the 4000 /. Debt due from Sir Michael Armin by Mortgage of Pickrvorth was one of the Debts charged by Sir Michael''?, Will upon the Real Eftate. And after the Death of Sir Michael Armin, Evers Armin one of the Executors and Devifees in the Will of Sir Michael^ entered upon the Premifles called Pickworth and Willotighhy^ and receiv^ed the Profits ap- plying them to his own Ufe, faving that he kept down the Litereft of the Mortgage on Pickwortk In January 1^75. Evers Armin fuffered Recoveries of both the Manors of Pickrvorth and Willoughby wherein he was Vouchee, which were to the Ufe of him- felf the faid Evers Armin and his Heirs, and at the Tims when thefe Recoveries were fuftered, both the Co- heirs ot Sir Michael, vi^. Sujanna afterwards Lady Bcllnfis, and Anne afterwards Countefs of Torrington, were of Age and unmarried. Afterwards Evers Armin made his Will dated 1 9th O^ob. 1677. and devifed his two Manors of Pickyyorth and Willoughby to his Grandfon Armin BulUngham and the Heirs of his Body, Remainder to his Grandaughter Eli^aJfeth Saunders (now Elizabeth Mortimer) and her Heirs; and 2d June i58o died, at which Time both the Heirs at Law were under Coverture ; upon which Deceafe of Evers Armin no Perfon for fome Time en- tered.ojp'oa Pick-worth, but at length Heneage (the Af- I lignee De Term. S. Michaelis, 171 8. ^^7 iignee of Lady Diana Holles's Mortgage) entered there- upon ; and as to Willoughby, Sir Thomas Barnadifion en- tered upon it immediately after Evers Arming Death, claiming the fame by virtue of the Remainder limited to him by the Will of Sir Michael Armin, 2d March 1688. Sir Thomas Barnadiflon mortgages Willoughby to Sir Richard Rothwell for 4000 /. for the Term of 1000 Years, and gives a Statute in 8 coo/. Penalty for the Performance of Covenants. I oth Nov. I ^9 1 . Armin Bullingham (the Devifee of Evers Armin) entered upon the Manor of Willoiigljby claiming Title thereto, and put his Cattle into fome Part of the Land, upon which enfued a Replevin and the Special Verdiil, in 3 Lev. 43 1 and Salk. iza. By Leafe and Releafe 7th and 8th July i6c)-j. Sir Thomas Barnadifion mortgaged the PremilTes to Sir Samuel Barnadifion and his Heirs, to lecure 2000/. and by the iifual Provifo at the End of the Mortgage it was agreed that Sir Thomas Barnadifion fhould continue in PolTeffion till Breach of the Provifo. \n Jan. 1^97. the Suit was compromifed between Sir Thomas Barnadifion and Armin Bullingham, who in Hillary Term the fame Year both joined in a Fine and Recovery of the Manor of Wilioughby, in which they were both vouched, and the Uie was declared that Armin Bullingham lliould have a Rent- Charge of 250/. per Annum in Fee-Simple iffuing out of the Manor of Willoughby with Power of Dirtrefs, and the laid Manor therewith charged was limited to the Ufe of Sir Thomas Barnadifion and his Heirs^ which Recovery barred the Remainder in Fee "limited to £//^4- beth Saunders as to the Manor of Willoughby ; but there was no Recovery fuffered of the Alanor of Pichvorth. In ^o8 De Term. S. Michadh, 1718. \n Aiigiifl 1 70 1. Sir Thomas Bamad/Jlon died, leaving the Defendant Sir Thomas Barnadiflon his Son and Heir, the fame Month alfo Armin Bullingbam died without lillie ; whereupon the Rent-Charge of 250/. per An- num defcended to Nicholas BuUingham his Coiiiin and Heir; and Pickworth was claimed by EU^aheth Mortimer Grandanghter and Heir of Evers Armin [and late Eli- zjiheth Saunders.'] By Indenture of Bargain and Sale inrolled Nicholas BuUingham fold and conveyed this Rent-Charge in Fee of 250/. -per Annum and the Arrears thereof, to John Coppen and his Heirs for 350c/. The Defendant Samuel Barnadiflon claimed by mefne Affi<^nments the Mortgages made of Willoughby to Sir Richard Rothrvel and Sir Samuel Barnadiflon^ and the Statute Staple for 8000/. for Performance of Covenants: Afterwards Samuel Barnadiflon and Coppen (the latter ha- ving commenced a Suit in Equity for the Recovery of his Rent-Charge by Reafon of the Prior Incumbrance of RothiveU\ Mortgage) came to an Agreement and obtained a Decree by Confent, by which the Manor of Vi-illou^^hhy was decreed to be fold, and Coppen to be firft paid 7000 /. (being the computed Value of the Rent-Charge and Arrears) and afterwards Samuel Bar- nadiflon was to be paid what was due to him. The Plaintiff Carter claiming Title to Pickrporth un- der Thomas Styles the Devifee in Remainder, brought his Bill in Eafler Term 1712. againil all the Claimants, Tv'^. againft Heneage the Mortgagee, to have a Redemp- tion of that Mortgage, and as againft the Defendants Mortimer and his Wife, to controvert with them the 2 Righc De Term. S. Michaelis, 171 8. ^09 Right of Redemption of Pickworth, in regard Mortimer his Wife claimed Pickworth as Heir at Law of Evers Armin, and againft Coppen and the Barnadiftons who claimed Eftates and Interefts in Willoughby, to have a Contribution from Willoughby of its Proportion of the Debt of 4000 /. and Intereft, and to reimburfe Pickworth what that had paid more than its Share, the Teftator Sir Michael Armin having by his Will charged all his Real Eftate with the Payment of his Debts. On hearing this Caufe 2 March 1 7 1 4 before Lord Chancellor Corpper, it was decreed that as againft Morti- mer and his Wife, the Plaintiff Carter fhould be admitted to a Redemption of Pickworth ; and that as againft the other Defendants he fhoiild have a Contribution out of Willoughby^ in order to reimburfe Pickworth what that had paid beyond its Proportion. zzA. May 17 17. on an Appeal of the Defendants Coppen, Sir Robert Barnadiflon and Samuel Barnad/Jlon, to ■the Houfe of Peers, the Lords upon taking the Advice of all the Judges were of Opinion, that neither the Appellants as claiming under Euers Armin, nor the Re- One devifes fpondent Carter as claiming under Thomas Styles, had Lands to his any Title ; that the Executors of Sir Michael Armin forTndmuii had only a {a) Chattel Intereft for Payment of Debts, Payj^^nt of that the Freehold was well vefted in Evers Armin, and tiiis is but a that the Remainder to Thomas Styles, in Default o{ Evers *^''T' Jf" . . , , . -^ . Ti • I teicit. One Armm s leaving a Son, was a contingent Remainder and feiCed of the confequently barred by the Recovery fuftered by Evers ^^^°dB Armin, and therefore that th*e Plaintiff Carter claim- devifes thefe ing under that Remainder to Styles, had no Title, nor c.'^'forL^fc, any Right to a Contribution cut of Willoughby ; where- ^"'^ '<" ^- ^ ^>. "^ fhall have 6 O upon Iflue Male, then to fuch Iflue Male and his Heirs for ever, and if C. fliould leave no Iflue Mn\e, tiien the Manor of J. to y. S. in Fee, and the Manor of B. to J. N. in Fee. C. fuf}crs a Recovery of thafe Manors ; this will bar the contingent Eftates limited to J. S. and J. N. {a) Vide 2 Vcm. 404. i^'io De Term, S. Michaelis, 17 1 8. (a) Maj upon they {a) reverfed Lord Coivpers Decree, but m ^^^^' their Decree of Reverfal declared, that this Reverfal ftiould be without Prejudice to the Right of the Heirs at Law of Sir Michael Armin or Evers Armin to have fuch Contribution. In 1 7 I 2 Sitfanna one of the Coheirs of Sir Michael Ar' min who was called Lady Bellafa, and who had afterwards married James Fortrey, died without Iffue, her Hufband tortrey furviving ; and Anne the other Daughter, who firil married Sir John JVoodhoufe, and afterwards Lord Crerp, and after that Lord Torrington, furviving her Sifter the Lady Bellajis, did by Deed of Bargain and Sale inrolled and by Deed of Feoftnient convey the Manors of Willoughby and Pichvorth to the Plaintift' Car- ter and his Heirs. Whereupon the Plaintiff Carter brought a new Bill in Equity againft the now Defendants as to Pickworth, to have the Right of Redemption betwixt him and Mortimer and his Wife fettled ; and if the Right of Re- demption Ihould be decreed to Mortimer and his Wife, then to compel them to redeem Pickworth or to be foreclofed ; and as to Willoughby (the Plaintiff Carter having now bought in the Right of the Teftator Sir Michael Armin s Heir at Law) that the Defendants who had been in Poffeflion thereof might account for the Rents and Profits, and that the Plaintiff Carter mjght have the Poffeffion of Willoughby delivered to him ; or if it fhould appear that his Title to Willoughby or any Part thereof was barred, that then the Plaintiff Carter might have a Contribution thereof from Willoughby, or fuch Part thereof as was fo barred, towards Satisfa61:ion of the Debt of 4 coo /. and Intereft due on the Mort- gage of Pickworth, and to reimburfe Pickworth what it had paid more than k§ Share. A This De Term. S. Mich ac lis, 171 8. 911 This Caiife had been ofcen very folemnly debated before the Mafler of the Rods, who on the i oth of Mat'ch 17 18. delivered his Opinion. He held, as the Lords by the Afliftance of the Judges had before refolved, that the Remainders limited to Sir Thomas Barnadiflon and Styles were contingent Remainders, and deftroyed by the common Recovery fuffered by Evers Armin', and the Qiieftion now being whether the Remainder in Fee was in Abeyance, or did defcend to the Tellator Sir Michael's Heir at Law, His Honour thought that there could be no Queftion, ^^f'^j"-, but that as by Feoftrnent and other Common Law RcmainJcr Conveyances, the Remainder in Fee might be put into Heirs^ S^''^ Abeyance (according to i Jnfl. 342, 343.) fo it might 7- ■5- (who be alfo by a Devife. livifgfthe 'Fee-Simple tlefcends to the Heir at Law of the Teftator till the Contingency liappens. That the Statute of Wills (32 Hen. 8.) enabled every Body feifed in Fee of Lands, to difpole thereof by Will according to his Pleafure ; fo that by tliat Sta- tute the I'eftator might mould and difpofe of his Lands in what Manner and Form he thought fit, provided it were conformable to the Rules of Law. And that if by a Common Law Conveyance, the Owner of Land might make contingent Remainders, and place the Fee in Abeyance, a fortiori might he do fo, if he thought proper, by Will, for which he cited z Mod. 291, 292, Taylor and Bidulph\ Cafe, where C. J. North fays, that a contingent Remainder may arife by Conveyance as well as by Will, and (fpeaking of De- vifes) obferves, that one may devife Lands to an In- fant in Ventre fa mere, and this will be good by way of Executory -Devife ; but (fays Lord North) if an EiLate be given to A, for Life, Remainder to the Right Heirs ^iz De Term. S. Michaelis, 1718. Heirs of B. (which miift be intended of a Devife, for he was fpeaking of Wills for fome Time before) in fuch Cafe this is a contingent Remainder and void if A. dies during the Life of B. for that the Fee does not defcend during the Life of B. to fupport the contingent Remainder. That as to the Cafes of Plunkett and Holmes, i Lev^ II. I Sid. 47. Raym. 28. and of Furefoy and Ro- gers, 2 Saund. 380. 2 Lev. 39. 3 Keb. 11. (which were cited as in Point to prove the Fee defcended to the Heir at Law, in Cafe of a Will, and w\as not in Abeyance) that of Plunket and Holmes was, where one feifed of Lands in Fee devifed them to his el- deft Son Thomas for Life, and if his faid eldeft Son Thomas Ihould die without Iffue living at his Death, then to the Teftator's other Son Leonard and his Heirs, but if Thomas iliould have Iffue at his Death, then the Fee to remain to the Right Heirs of the eldeft Son Thomas. The Teftator dies, after which the eldeft Son Thomas enters and fuffers a Recovery and dies without Iffue ; and the Qiieftion being whether the Remainder limited to Leonard was deftroyed, Adjudged that it was, and plainly it was io, becaufe it was a contingent Remainder ; but that this Refolution affefled not the Principal Cafe, it only proved that the Recovery by Evers Armin barred the contingent Remainders limited to the IlTue of Evers Armin, as likewile the contingent Remainders limiced to Sir Thomas Barnadifion and Styles. That indeed in the above cited Cafe it was laid by fome of the Judges, that the Reverlion defcended to the Teftator's eldeft Son Thomas, until the Contin- gency happened ; but there was no need of making this Point any Part of the Qiieftion before the Court, and it ieemed unneceflarily and extrajudicially thrown I in, De Term. S. Michadis, 171 8. 91^ in, for whether the Fee did, or did not delcend to the Teftator's Heir at L:i\v {Thomas) ftlJl the Recovery iliftered by Thomas the Deviiee fur Life mull in either Cafe be an equal Bar to the contingent Remainder to Leonard. But the Reafon of their Opinion feemed to be, for that the Devife of the Fee in that Cafe, was to the Teftator's Heir at Law, and where the Devile is to the Teftator's Heir at Law, the Fee muft delcend, and fuch Heir at Law will take by Delcent. It was true, as to the Cafe of Purefoy and Rogers^ where Sampfon Shelton feifed of Lands in Fee devifes them to his Wife for Life, and if God ftiall blefs her with a Son, and the Wife ftiall call that Son by the I'eftacor's Chriftian and Sur-name, then the Teftator gives the Inheritance of this Land to fuch Son after his Mother's Death, and if fuch Son ftiould die before his Age of twenty-one, then to the Tefta- tor's right Heirs after the Death of his Wife ; the Teftator died, and his Wife married again, and it was held fo plain by Hale C. J. that he would not per- mit Saunders to argue it, that the Reverlion in Fee in that Cafe defcended to the Heir at Law of the Tefta- tor until the Son Ihould be born, and that when the Teftator's Heir at Law having the Reverlion in Fee conveyed it to the I'eftator's Wife and her fecond Huft)andand their Heirs, and made that Conveyance before the Birth of the Wife's Son by the lecond Marriage, it muft deftroy the contingent Remainder : All that might be allowed to be Law ; but fti!l it dift'ered from the Principal Cafe ; becaule in the Caie of Purefoy and Rogers, the Devile was to the Tefta- tor's right Heirs, (he admitted it was laid if luth Son as his Wife Ihould have by her fecond Hufband ftiould die before twenty-one,) however it was a Devile by the Te- ftator to his own right Heirs ; and in all Cafes where the Devife is to the Heir at Law, the Reverlion dekends 6 P to — _ / ^14 De Term. S. Michaelis, 1718. to him ; whereas in the Principal Cafe the Devife was not to the Teftator's Heir at Law, no not upon any Contingency. On the contrary, where the Devife was to Evers Armin for Life, and if he had liTiie Male, then to fuch IlTue Male in Fee, and if he had no IfTiie Male, then Part of the Teltator's Eftate was de\ ifed to Barna- difton in Fee, and the other Part to Styles in Fee ; it was plain, that Evers Armin either mull: or niiifl: not leave Ifliie Male, and in either Cafe the Fee was equally given from the Teftator's Heir, under whom the Plaintiff Carter claimed. So that here was no Reverlion, Contingency, or Poffibility that appeared to be left for the Teftator's Heirs ; he had fhut the Door every way againft them, whether Evers Armin ftiould leave Iffue Male, or not. That the Principal Cafe was much ftronger than where the Devife is to A. for Life, Remainder to the right Heirs of J. S. becaufe in that Cafe J. S. might not die in the Life of A. and then the Teftator's Heir would take, and fo there might be fomething faid, why in that Cafe the Reverlion ftiould defcend until the Contingency one way or other falls outj but here the Teftator expreffed his Intention to give the Inheritance of the Premiffes in all Events from his Heir at Law, whether Evers Armin ftiould leave Iftiie Male or not ; and that the Contingency ftiould be only betwixt the Iffue Male of Evers Armin and the Devifees over, ^7;^. Styles and Barnadifton, and plainly defigned no Contin- gency, Chance or Poffibility to his own Heir. Alfo the Mafter of the Rolls faid, that where one devifes Lands to A. for Life, Remainder to the right Heirs of J. S. then living, though the Remainder in 4 Fee De Term. S. Michaelis, 17 1 8. ^i^ Fee is in Abeyance, yet there is a Poflibility left in the Heir, and that this was plain even in the Cafe of a Grant, 2 Rolles Ahr. 418. PI. i. 2. and in II H. 6. 12. h. where a Grant is made to A for Life, Remainder to the right Heirs of B. and A. dies living B. fo that B. can have no Heirs, the Grantor ihall have his Lands again for want of any other Per- fon to take them. And this Pofhbility feemed fuch an Intereft as intitled the Donor (a) to enter for the Forfeiture made by the f^) See this Feoffment of Tenant for Life, for that his Eftate was Qi-f '«'," as much determined as it would have been by his Reports Death ; and it was abfurd, that Tenant for Life by an ^^^' ^^°' unlawful AS:, rv:^. by deftroying the contingent Re- mainder, Ihould gain to himielf an indefeazible Fee Simple ; or like the Pollibility that was upon a Grant at Common Law to a Man and the Heirs of his Body; for there, though the Grantor had no Reverfion, yet he (b) might enter when the Grantee died without (/') i inft. IlTue ; and that '9, 22. Therefore in the Principal Cafe, when Evers Armin fuftered a common Recovery by which his Ellate for Life determined as much as by his Death, and by which the contingent Remainders were deftroyed, fup- poling the Heir at Law of Sir Michael Armin the Telia- tor might enter, it was however a dilpiitable Point and proper to be determined at Law ; and there being no Incumbrance upon the Premiifes to cover the fame from an Eje£lment, and it being a mere legal Title, the Court laid the Bill lliould be retained for a Year, to the Intent that in the mean Time the Plaintiff might try his Title in an Ejeflment ; alfo in regard the Plaintiflf (having purchaled in the Title of the Heirs at Law) Hood in their Place, and was therefore intitled to the Aid of a Court of Equity againft the ^i6 De Term. S. Michaelis, 17 18. the Defendants, and [inter at) agalnft the Defendant Cop- pen^ he being a Purchafer with Notice, w'^. with Notice of Sir Michael Armins Will upon this Point in Qiieftion ; therefore in order to this Trial the Plaintiff was intitled to have all the Deeds and Writings produced. The Plaintiff Carter being difTatisfied with this De- cree, appealed to Lord Chancellor Parker, upon which the Caufe was heard before his Lordfhip, who at firft fent it to the Mailer to ftate the Matter, and after it had come on upon the Report, and had held (a) Mich. ^^^'^ Days Debate, his Lordlliip (a) delivered his Opi- Term 1720. nion. TheReafon As to the Remainder in Fee being in Abeyance, or ^^y^rkr i" the Cuftody of the Law, or (as fome call it) in inainder in Gremio Legis, his Lordfhip much expofed that Notion, to\^in ^^ying» ^^^ i^oft reafonable Inference from it Abeyance, was, that it fiiould be for the Prefervation of this Remainder 5 but fince the conftruing the Fee to be in Abeyance would on the contrary tend to the manifeft Deftruflion thereof, and lince nothing but Necellity in any Cafe fhould occafion the Fee-Simple to be in Abeyance ; fince the Diverfity taken by the ^ Books was between a Will and a Common Law Conveyance, and that in Cafe of a Will, where the Remainder was de- vifed in Contingency, it was held that the Rever- fion in Fee defcended to the Heir at Law in the mean I'ime, and that whatfoever Eflate was not difpofed of by the Teftator, defcended to the Heir, his Lordlhip laid he fhould abide by that Opinion, and was very clear in it. That * SlU'tre lamcn upon what Foundation this Diftinction between a Re- mainder created by a Conveyance, and one arifing by Will, depends; fince there does not appear to be any iuch Difference taken in the Cafci of Plunket and Holmes, and Purefoy and Rogers. De Term. S. Michaelis, 171 8. ^17 That it was a ftrange Conftrii^llon to take Pains by a Strain in Law, to place a Remainder in Fee in NubibuSy or in Abeyance, on Purpoie that the Teftator's Inten- tion fhould be wholly friiltrated, and that the Tenant for Life might be under a Temptation to difappoinc the Will, by deflroying the contingent Remainder by a Recovery or Feoffment, which in this Cafe muft be admitted to be tortious Conveyances ; nay, what was Itill more extraordinary, that the Tenant for Life miiil be rewarded for this Wrong, and that he who before had but an Eftate for Life, Ihould gain an abfolute and indefealible Fee-limple, and this by doing a wrongful A£1, which would be to take Advantage of his own Wrong, both againtt Law and Reafon. That the Cafe of Plunket and Holmes was a Re- folution in Point, that where the Remainder in Fee was deviled in Contingency, the Fee defcended to the Heir until the Contingency happened; and though he Ihould admit that Relolution to be extra- judicial, and not direflly to the Point then in Qiieilion, yet the Opinion of four learned Judges mull: be of great Weight, efpecially againll the Notion which was contended for by the other Side ; and that the Cafe of Vurefoy and Rogers in 2 Saunders^ was equally in Point, and the L^iterruption which Lord Hale gave to Saunders who attempted to argue this, did not proceed from any Heat, or Liipatience, in Lord Hale (who was Maifer of a great deal of Teniper, as well as Learning) but from the Relult of his fixed Judgment and Opinion, that where after an Eltate for Life the Reniaiiider in Fee was deviled upon a Contingency, the Fee-limple not being diipofed of un- til the Contingency happened, mult in the mean Time defcend. to the. Heir; and to fay that in thefe Cafes of T-lunket and Holmes and Purefoy and Rogers y the Devii'e over of the Fee (afcer the contingent Deviie in Fee) 6 Q, \vas 9i8 t>e Term. S. Mich aelis, 11 iS. was to the Teftator's Right Heirs, and that this diftin- Piiifhed it from the Principal Cafe, and made the Heir take by Defcent, was hardly agreeable to the Rules of Law, for when the Teftator had devifed the Re- mainder in Fee upon fo remote a Contingency, having in that Manner given a Fee he could go no farther, nor devife any Remainder over, and therefore in fuch Cafe the Devife over of the Fee-limple would be void, whe- ther made to the Heir or to any other Perfon. That thefe Devifes to the IlTue Male of Evers Armin in Fee if there fliould be any IlTue Male, or if there (hould be none, then that WiUoiighby Ihould go to Barnadifion in Fee, and Pickrporth to Styles in Fee, being made upon Contingencies that ^ never hap- pened, it was the fame Thing as if thofe Devifes had never been made, and confequently the Reverfion in Fee defended to the Teftator's Heir at Law. Oncdevifes ^j^-^ ^^ j.^ ^^,^^^ j^^j ]^^^^ Contended for by the Lands to - i i i t^ r n* ; » his Execu- Plaintiffs Counlel, that the Executors ot Sir Michael hhl)lhl Am/« fliould hold over, notwithttanding they milapplied paid, tiie the Profits and did not with them pay the Debts of Remainder . , , ■ » i over; the Sir Michacl : Executors niifapply the Profits, they (hall hold only until they might have paid the Debts by the Pro- fits, and after that, the Land is to be difcharged, and the Executors only liable. Vide Salk. 153. accord. He admitted that if any were to hold over, it muft be the Executors of Sir Michael, who were the De- vifees of this uncertain Intereft, until the Debts were paid ; but it would be very ftrange to lay, that becaul'e Evers Armin one of the Executors did not ap- ply the Rents as he ought to have done towards Pay- ment of the Debts, therefore and for that Reafon, he that a6led wrongfully Ihould hold over. This would be diredly to let a Man take Advantage of his own 2- Wrong, * S^iiere, For the Contingency of Evers Armhii dying without IfTue Male adually happened. De Term. S. Mkhaelis, 171 8. ^Tp Wrong, and was the fame as to fay,, that the lontrer the Executors mifapplied the Profits, the longer tliey Ihoiild hold the Eftate, nay, they jhould hold it pure- ly becaufe they did the Wrong. That therefore this Term or uncertain Intereft fliould determine at fuch Time as the Executors might have paid the Debts, if they had duly applied the Rents, ^c. And as to the Profits mifapplied, the Creditors muft purfue the Truftees for fuch Profits, and if the uncertain Intereft of the Truftees lor the Payment of the Debts was become veiled by Survivorlhip in any third Perfon, fuch Perfon was barred by Fine and Non-claim. As to the Bar which was infifted on by the Defen- dant with regard to the Moiety of the Premiftcs by Means of the Fine levied by Bullingham and Barnadiflon in Hill. Term 1697, (for as to Lady Dellajis's Moiety it was allowed the Fine would be no Bar, Tady Bella- Jis being then a Feme Covert, and Ihe having died a Feme Covert within five Years before the Commence- ment of the Suit) it had been objected, that Panes fi- nis nihil habuerunt, in regard fome few Months before the levying the faid Fine, Sir Thomas Barnadifton who was faid to be the Diffeifor of the Premiftes, did by Leafe and Releaie convey the Inheritance of the Pre- miffes to Sir Samuel Barnadiflon in Mortgage, and though the former had the Poffeflion of the Eftate, yet this was only under the Proviio of the Mortgage, as Tenant at Will to the Mortgagee, until Default of Payment. And it was faid, that fince C. J. Bolt in delivering the Refolution of the Court in the Cafe of Hunt {a) {") Saik. and Bourn had declared, that if Lelfee lor Years levied ^"^^ a Fine without firft making a Feofl:nient, the Fine would be void- as to the making of any Title by way of Non-claim, by Reafon oi the Imbecility of his Eftate, and <;io De Term. S. Michaelis, 171 8. and that Partes finis nihil habuerunt, (with which De- claration of Lord Holt, Lord Chancellor agreeing) it was from thence inferred, that if where Leflee for Years le- vied a Fine, it might be faid that the Fine was void, for that Partes finis nihil habuerimt, a fortiori it might be fo faid in the Cafe of Tenant at Will's levying a Fine ; But Fine levied j^Qy^ Chancellor held that in this Cafe it could not be Years or zt faid that Partes finis nihil habuerunt ; becaiife Armin Will void; Bullin^ham on the Death of Evers Armin, and as his /ecus where • - i i • i ■ n 11 y-> r ^ r i by one ha- Devitec had a Right againlt all Perlons whatloever but vingadefea- j^^ j^^j^. ^£ gj^. ^^^fj^^i ^^^/^ f^e Tcftator, and Barna- liblc Right, _ ^ .^P . , . and fuch difion entering upon him was a Dilleiior ; and though whMiim"^ Barnadiflon afterwards mortgaged the Premiflcs in Fee, yet he continuing in Poffeirion thereof, and joining with BiiUingham in the Fine, it could not be faid that Partes finis nihil habuerunt, when one of them, ^v^. Barna- difion had the Pofleirion, and the other of them, ^7iJ. Bullingham had the Right to the Land ngainii Barna- d.fion, and alio againll his Mortgagee. Alfo his Lordfliip held that the Statute of Limita- tions barred the Plaintiff as to the whole ; becaufe it was found by the Mafiers Report that at the Time of the common Recovery fuflered by Evers Armin, both the Coheirs of Sir Michael Armin were of Age, and un- married. "Where . Lands arc That upoH this Recovery fullered by Evers Armin in for'^Lifer ' '^7 55 !"'£ being but Tenant for Life, and the Coheirs and if //. having the Reveriion in Fee defcended to them, they Ifilie Male, l^^d a Right of Entry which then commenced, but had Tv^ " '°: ^^^^ no new Rioht of Entry upon the Death of Evers Ar- lilue Male o j i and his 2. fnjfi j Heirs for ever, and if j1. ftiall leave no IlTuc Male, then to B. in Fee. If J. fufFers a Recovery of thefe L^nds and five Years pafs, the Right Heirs of the Teftator are barred, in regard they ought to have entered upon fuch Forfeiture ai.d have no nev/ Entry upon the Death of the Tenant for Lif>;. De Term. S. Michaelis, 1718. 921 ' — ' — . — — • min ; and that this was not like the common Cafe of Tenant for I-.ife, with the Reverlion in Fee to J. S. where, it is true, the Reverfioner in Fee is not bound to watch after any (a) Forfeiture, he may ftay till the ('') ^^'^'^'^ 3 Death of Tenant for Life; but here, the only Title iVem.^241, which the Co-heirs could poilibly have, muft be by the Forfeiture of Evers Armin ; for if there was no Forfei- ture, then, upon Evers Armins Death, the Remainder muft either go to the Iffue Male of Evers Armin if any, or if none, to Barnadiflon and StyleSy and fo this Cafe differed from that of a bare I'enant for Life, Reverlion in Fee. Laftly, as to the Contribution which the Plaintiff claimed out of Willoughhy, in Refpeft of the Mortgage- Debt upon Pickrporth, this the Court faid was intended by the Teftator (Sir Michael Armin) for the Benefit of Styles, and related only to the Divifion of Eftate be- tween Styles and Barnadiflon ; but when the Will was difappointed by the Recovery of Evers Armin, who thereby forfeited his Eftate for Life, and barred both the contingent Remainders to Styles and Barnadiflon, and whereby the Co-heirs of Sir Michael Armin became in- titled to both the Manors, fo that they came into one Hand, the Right of Contribution was at an End ; for a Man could not contribute to himfelf, and the Right of Contribution, as it was given by the Will, fo was it in Force only while the Party claimed under the Will, and not where the Demand was fet up in De- fiance thereof. All which Points his Lordftilp faid were to him pretty clear ; however, if the Parties defired that this Matter fhould be made a Cafe upon the Mafter's Re- port, for the Opinion of the Judges, it fhould go to the Judges of G. B. and that by this he did a Kindnefs to both Parties in faving them the Charge of a Trial at Bar, and of a long fpecial Verdi6l, and the great 6 R Length <^1Z De Term. S. Micbaelis, 1718. Length of Time that this would of Courfe take up, before they could come to have the Point argued ^. Cafe 147. Anonjmiis. At the Rolls. Though the A Motion was made the Day after the Term at the next Day l\ Rolls to dlfmifs a Bill for want of Profecution, \^Z oi tht on a Certificate from the Six Clerk, that there had Turmbcnot i^^gj^ ^q Profccution within three Terms, of which the in Strianefs Part of the lalt 1 crm was one. Term, and therefore no Motion can then be inade on the Petty-Bag Side ; yet as to other Purpofes it is Part of the Term, for which Reafon a Motion made at that Time, to difmifs a Bill for want of Profecution, on a Certificate that there had been no Profecution within three Terms, of which the lait Term was one, was denied. And It was objefled that this Motion came too foon ; becaufe this next Day after the End of the Term was taken to be as Part of the Term, and Notices giv^en of Motions the laft Day of the Term were good to move at the Rolls the Day after ; to which Sir Jojeph Jekyll the Mafier of the Rolls agreed and denied the Motion. But Mr. Vernon faid the Day after the Term could not be taken to be Part of the Term, neither could there be any Motion made on the Petty-Bag Side on that Day, and the allowing of Motions to be made the Day after the Term on Notice to move the laft Day of Term was only for Conveniency of Bu- iinefs, in regard there might not be otherwife Time to hear all the Motions ; and it was faid by fome of the Bar, that fuch Motions had been ufually granted for diimiffing of Bills on the Day after the Term. So where the A^reciible to the above mentioned Order in Hill. Fa- lalt oeai con- -^ i i n i i n tinued three cMion 1 7 2 I , when the lalt Seal lafted three Mornings, Days, and , j • 1 and computmg -1111.1 tiie tliird Day according to the Day of the Month, the Time would be expired for . making a Report abfolute; yet this not fo, it being only a Continuance of the firft Day. * It appears from Lord Macclesfield's Notes, that this Cafe was foon after coniproniifed by the Parties. De Term. S. Michaelis, 171 8. ^23 and computing the third Morning according -to the Day of the Month, it would be a proper lime to move to make a Report abfolute, (^7^.) it would then be above eight Days after Service j By Mafler of the Rolls, the Report cannot as yet, be made abfolute ; for though this Seal lails three Days, yet is it all only a Continuance of the firil Day, and lo the Time not yet out ^. Anojtj 7- Cafe 148. •mUS* igrd Cban- Ci'llor Parker. S. who was his Majefty's Refident at Tunis, com- ;:^;,^j'j"fj-^';^ • menced a Suit againft J. N. at Law, and jF. N. B. at Law, having brought a Bill in Equity againft J. S. obtained Bi'innlql an Order to ferve the Attorney at Law of the Defen- fy againft A. dant in Equity, and that fuch Service fhould be good, orderthat And now the Defendant in Equity moved that his At- ^"'''"^^ °" torney lliould anfwer for him, and that fuch Anfwer dant's X-' might be taken without Oath, forafmuch as no Com- T.''\^l,^ miflion could be fent to Tunis, and it was the fame good Service, as if the Defendant in Equity lived in an Enemy's f^chXtor" Country. ^ neyfhallput in an Anfwer without Oath. i^«. if the Defendant was in an Enemy's Country where no Commiflion could go to take the Anfwer. Cur : The Plaintiff is intitled to a Difcovery, and an Anfwer without Oath is nothing ; beiides the EngliJJj have a Conful at Tunis, and Commiifions have gone there by way of Leghorn ; wherefore deny the Motion. If there had been a general Letter of Attorney to one to appear in and defend Suits, the Court would have ordered fuch Attorney to appear for the Principal, and that Service on him iKould have been good Ser- vice. DE * The like Determination by Lord Chancellor A7»g-, in 1730. T2-4 D E Term. S. Hillarii, 17 1 8. Cafe 149. Lord Chan- cellor Parker. In the Court's Al- lowance of a Mainte- nance out of a Jw's E- ftate, to his Daughter turned Pro- teftant, not materia], tho' the Daugh- ter be above forty Years of Age,_ or married, or tho' the "Jevj be dead. Vincent verfus Farnandez. A Jetp had a Daiightet who turned Proteftant, the ■^ ^ Jexp had a very confiderable Perfonal Eftatej and dying in May laft, after having by his Will left feve- ral Charities, and given his Perfonal Eftate from his Daughter to his Executor, the Daughter who was mar- ried and forty-four Years old, petitioned Lord Chan- cellor for a Maintenance upon the Statute of the firft of Qiieen Anne^ cap. 30. intitled an Adi to oblige the Jews to maintain and provide for their Proteftant Children, whereby it is enafted, " That if any Jervijh Parent, in order to compel his Proteftant Child to change his or her Religion, ftiall refuje to allow fuch Proteftant Child a fitting Maintenance fuitable to the Degree or Ability of the Parent, and to the Age and Education of fuch Child, upon Complaint to the Lord Chancellor or Lord Keeper, ilfc. It ftiall be lawful for the Lord Chancellor is^c. to make fuch Order for the Maintenance of fuch Proteftant Child, as he or they ftiall think fit. 4 And De Term. S. Hill. 1718. 92^* And it was obje6led that this Cafe was not within the A£1, for that Firji, This Child is above forty Years old, and fo the Care of her Education over. Secondly, She is married, and not now to be called a Child^ but to be provided for by her Husband. Thirdly, That the Parent being dead could not be faid to have refujedy isfc. and fo the Power given by the A£1 at an End. Lord Chancellor: I ftrongly incline to think this Cafe within the ASl upon the following Reafons : The Pe- titioner is a Protertant Child of a Jervijl) Parent, tho' the Parent be dead. Suppofe the Child of a Jew turns Proteftant, and the Jew the Parent by Will gives his Eftate to Truftees, upon a Secret Truft, that if the Child turn Jew the Child Ihall have the Eftate, and not otherwife. As this would be clearly within the Mifchief, fo every one muft wifh it to be within the Meaning of the A61. It is not faid the Complaint fhall be agalnft the father-, that would indeed take this Cafe out of the A61, neither is it faid, that the Order fhould be made upon or againft the Father, fo that this Cafe fits every Word made Ufe of by the Le- giflature. Suppofe a Suit or Petition had been exhibited, and the Jew the Parent had died pending the Petition, and had given all away from his Proteftant Child becaufe the Child had turned Proteftant, 'doubtlefs the Complaint might be againft the Executor, and the Order likewife againft the Executor ; every one will allow this to be a hard Cafe, and if the Words be large enough (as they are) why lliould they not be conftrued to extend to it ? 6 S Then 92^ De Term. S. Hill. 1718. Then as to the Refufal of the Parent, it is not to be intended that the Parent the Jew muft make an aftual Refufal in Words, for by tha.t Conftriiclion the Statute mioht eafily be evaded, and rendered Ufelefs. If the JerpiJJj Father does by Will difpofe of all his Eifate from his Child, this is in Law a Refufal ; and unlels fome other Reafon be made appear, it fhall be intended, becaufe the Child was a Proteflant. The Obligations of Nature plead fo ffrongly on Be- half of a Child, that when fuch a Cafe happens, fome great Provocation muft be fuppofed to have occa- fioned it, and if no other Reafon be made appear, this Difference in Religion fhall be intended the Reafon. Poffibly thefe Charities given by the Jews Will may be under fome fecret Truft for the Child if fhe fhould turn Jew, wherefore let all this be inquired into by the Matter \ Cafe 150. VFit verfus L'Batt. I ''HERE was a French Will, the Original whereof was -*- proved in French, and under it in the fame Probate Jt the Rolls. A Will is made in French and i the Probate the Will was trauflated into En^l//h, but it appeared to ln:vi;?'be/4./vtrannated. from the O- I UpOn rigiiial ; Pro- ^ bate being in a dllFerent Language is not conclufive. * Though this was the Opinion of the Court, it does not appear that on this Petition the Court made any Order ; and as nothing fur- ther is to be traced in this Matter, it is probable the Parties came to fome Agreement. De Term. S. Hill. 17 1 8. 927 Upon which is was objefted, that the Tranflation being Part of the Probate, and allowed in the Spiritual Court, i: muft bind; and the Application mull be to the Spiritual Court to corretl the Miftakes in the I'rani- lation, which until then muil be conclulive. But by the Mafler of the Rolls, nothing but the Original is Part ot the Probate, neither hath the Spiri- tual Court Power to make any Tranflation ; and iup- poling the Original Will was in Latin (as was formerly very ufualj and there llioiild happen to be a plain Mi- ftake in the Tranflation of the. Latin into Englipj, furclv the Court might determine according to what the Tran!- lation ought to be. And fo it was done in this Cale. B B/'fiop of London verfus Web. ^'^' '5*- Lord Chan- cellor Parker^ ISHOP Bonner in the Time of Edrp. the 6th, being Leiiee for then Billiop of London, made a long Leafe of fome w^fte Re. Lands in Ealing in Middlejex, in which there are about mainderin twenty Years yet to come, and the Leafe was made iho^p, °Le(ree without Impeachment of Wafte, and the Defendant enjoined Web, m whom by ieveral mean Aliignmients the Re- the Ground mainder of this Leafe was vefted, articled with fome f"'' ^^'^"^^' Brick-makers, that they might dig and carry away the Soil of twenty Acres lix Foot deep, Part of the Pre- miffes, provided they did not dig above two Acres in the Year, and levelled thofe Acres before they dug up others. The Bifliop of London, having the Inheritance of the Premiffes in Right of his Bifhoprick, brought a Bill to enjoin the Digging of Brick in this Manor, aN ledging that this was carrying away the Scite, Part of the Inheritance, and would in Confequence turn the Pallure- ^28 De Term. S, HtlL 171 8. Paftiirf -Field into a Pit or Pond ; that it wasj like {a) 1 Vern. the Cafe of Vane verfus Lord Barnard {a) where Lord ^aik 161 -B^^^^^^ having upon his Marriage fettled Rahy Caftle (the One in Con- Family Seat) upon himfelf for Life without Wafte, Re- S"nS °^ mainder to his firft ^c. Son of that Marriage, afterwards, fettles an upon foiTie Difpleafutc taken againil: his Son, employed Uib'o/him- ieveral Ferfons to pull down the Callle, upon which the f'-'"' ^/ Life Court granted a perpetual Injunftion to ftop him, and or- RemainJer' dercd him to amend and repair what he had pulled down ; S/'riiT' ^"^ '■^^^'- ^^^ fliould not dettroy the Thing itfelf, which Tenant for he had exprcfly fettled. So in this Cafe, the Defen- rof ^^\\ ^^"f ' ^" digging all the Soil for Bricks, was adualiy de- down the ftrovin^ the Field. Houle. Lef- ^ ^ fee for Years fans "VVafte cannot pull down an Houfe, or the Trees that are a Defence or Ornament to the Houfe. Lellee for Years Jam Wafte may open Mines. ■ But for the Defendant it was faid, that frequent Ex- perience Ihew'd, that the Digging of Brick did not deftroy the Field, there being many Fields about the Town where Brick had been dug, and thofe Fields now ufed again for Pafture ; but admitting it was Wafte, yet there being a Power to commit Wafte, the Leflee might do it, as well as open a new Mine, and carry away the Mineral, without filling it up again. On the other Side it was replied, that the Privi- lege of being ^ans Wafte would not in Equity entitle one to pull down an Houfe, or even cut down 1 rees that are for the Ornament of the Houfe. Lord Chancellor: Before the Statute of Gloucefler, (/.)ilnft.54. Wafte did not lie againft {a) Leflee for Years, and the Leflte'for ^^^"§ without Impeachment of Wafte feems originally Years ya«i intended only to mean, that the Party ftiould not be (houicf enjoy puniftiablc by that Statute, and not to give a Property the Trees or I Jq Materials of ' the Houfe when he pulls them down, the Intention only being that the Leflee for Years (hould be as free from W^ifte as he wa5 before the Statute of Gloiuejier. De Term. S. Hill. 171 8. ^zp in the Trees or Materials of an Houfe pulled down by LefTee for Years jans Wafte ; but the Reiokicions having ellablifhed the Law to be otherwlfe, I will not lliake it, much lels carry it further. But I take this to be within the Reafon of Lord Barnard's Cafe, where, as he was not permitted to de- ftroy the Caftle to the Prejudice of the Remainder-man, lo neither Ihall the LefTee in the prefent Cafe deftroy this Field, againfl: the Billiop who has the Reverfion in Fee, to the Ruin of the Inheritance of the Chjurch. Let the Defendant carry off the Brick he has dug, but take an Lijun^lion to flop further Digging. Metham verfus Duke of De-vou. f'^' '^'- -' Lorii Chan- cellor Parker> ' I H E late Earl of DevonJInre devifed three Thou- O"^ ''evifes -*- fand Pounds to all the natural Children of his Son ?he°natu?a? the late Duke of Devonlliire by Mrs. Heneage ; and the f^'J'^'^^f^"^ Qiieflion was, whether the natural Children by Mrs. Jane Stiu % Heneage born after the Will fhould take a Share of the b^^r^'ef three Thoufand Pounds ? making the Will fliall not take; nay the Child k Venttt fa Mere fliall not take. Lord Chancellor : I'hey fhall not ; the Earl of Devon' flnre could never intend that his Son fhould go on in this Courfe, that would be to encourage it ; whereas it was enough to pardon what was palTed ; befides Baflards cannot take {a) until they have gained a Name by (") ' l"^- 3* Reputation, for which Reafon, though I give to the 6 Co. 68. IfTue of J. S. legitimate or illegitimate, yet a Baflard fhall not take. 6 T But 930 De Term. S. Hill. 171 8. And though g^it then it was fald, the DIreflions of the Will were, cVaicT" for the Executors to pay this 3000 /. as the Earl the Money j-'^g Teftator fhould by Deed appoint, and the Earl ^Idbythe afterwards by Deed appointed the 300c I. to all the Executors, QfjUdyen of b'ls Son (thf. JDuke) by Mrs. Heneage, fo that tor by Deed this now depended upon the Deed, and therefore muft fhould ap- ^^^^j. J.Q j.|^g Children born at the Time of the Execu- point ; and the Tefta- tion thereof. tor after- wards made the Deed of Appointment ; the Deed of Appointment referring to the Will was held as Part of the Will. ' ■' ■ L Tamen per Cur : T he Deed referring to the Will is, as to this Purpofe, to be taken as Part thereof. Alfo it being a Qiieftion, whether a natural Child in Ventre fa Mere^ of the Duke of Devonflnre by Mrs. Heneage fhould take ? Lord Parker inclined that fiKh Child could not take for the Reafon abovementioned, viii^ for that a Baflard could not take, until he had got a Reputation of being fuch a one's Child ; and that Reputation could not be gained before the Child was born. Bahington verfus Greeniwod, Cafe 153. Lord Chan- cellor Parker. Precedents 505. A Freeman of London on his Marriage covenanted Jointure by L^ fo add I 500 /. out of his own Perfonal Eftate to on his Wife I 500 /. which was the Portion of his then intended Dowc'r"vv'iii ^^'^^•> ^"^^ ^o\\\ thefe Sums were to be laid out in a not bar the Purchafc of Land and to be fettled upon the Husband ibmiv^"' ^"^ ■^^^^^' ^"*^ ^^^^ ^^ ^he Wife for her Life for her Part ; [ecus Joiuture, and in Bar of her Dower., with Remainder to ia 'S o? ^' the Children of the Marriage. her Cufto- I The mary Part, De Term. S, Hill. 1718. 931 • The Freeman makes his Will, and thereby (among other Things) gives a Legacy to his Wife, and dies leaving a Wife and Children. Upon a Demand made by the Wife of her Cu- ilomary Part, it was objeded by Mr. Mead, that tho' a Jointure of Land made by a Freeman on his Wife in Bar of Dower, Ihoiild not bar the Wife's Cuftomary Part, any more than it would bar her of her Share by the Statute of Diftribution, (as in the Cafe of {a) Atkins («) 6 June verfus Water/on, where the Court of Aldermen by the ^7J^- Recorder certified they had no Cuftom extending to that Cafe ;) Yet where the Jointure was to be made out of the Freeman's Perfonal Eflate, and confequently to lef- fen the cuftomary Part, fuch a Jointure faid to be in Bar of Dower Ihould be intended a full Provijion, and to be in Bar of any other Provijion, confequently in Bar of her cuftomary Part; at leaft, that there being a Le- gacy given by this Will to the Wife, ftie Ihould not have both the Legacy and the cuftomary Part, but muft abide entirely by the Will, or by the Cuftom, and that it had been carried fo far by the late Mafter of the Rolls, as that where a Freeman of London de- vifed a real Eftate to his Wife, he decreed that even this would bar the Wife of her cuftomary Part, and that ftie fliould not take both. But Lord Chancellor held clearly, that a Jointure of Land made by a Freeman of London upon his Wife, if expref- fed to be in Bar of her cuftomay Part by the Cuftom of London, then it would be fo; but if it were not fo ex- prelTed, and only faid to be in Bar of her Dower, this would be no Bar of the Wife's cuftomary Part ; becaufe Land, or a Real Eftate is of a quite dift'erent Nature from perfonal Eftate, and a Matter wholly (b) out (^)Poft5/««- of BarktT. 932, De Term. S. Hill 171 8. of the Cuftom of London ; and as It had been admit- ted, that a Jointure of Land fettled in Bar of Dowet would no more bar the Widow of her cuftomary Part, than it would exclude her from her Share by the Sta- tute of Diftribution, in Cafe her Husband Ihould die in- tertate, his Lordihip faid, it was the fame Thing in the principal Cafe, where a Freeman had covenanted to lay out of his own Eftate i 500 /. in a Parchafe and to fettle it on himfelf for Life, Remainder on his Wife for Life for he^ Jointure; with Remainder to his Children. ly?, Becaufe from that Time the 1 500 /. was not his own Ellate, nor what the Cuftom of London could meddle with; for a Man's own Eftate is what he has beyond his Debts, and what he owes is i&s aliemimy and the Cuftom of London affefls only what is beyond his Debts. LandorMo- "i-dly^ For that Money covenanted to be laid out in nantedTo' be -^^"^ IS, 38 to all Refpe6ls, Land in Equity, and laid out in would defccnd as Land for the Benefit of the Heir, H"J^"?u and not go to the Executor; it midit be intailed within the o . . ^ Cuftom of as Land, and had the other Qualities of Land, and °" ""' confequently was not within the Cuftom of London. Neither was this to be looked upon as breaking into the Cuftom ; for the Freeman might at any Time du- ring his Life, even in his laft Sicknels, have invefted his Perlonal Eftate in the Purchaie of Land, which would (a)?o9i,Fre- defeat the Cuftom and ftand {a) good, though the FrniJa. "^ f i'eeman ftiould at the iame Time have faid, that he did this on Purpofe to defeat the Cuftom. And as this (if the Purchafe was real) would have held good to bar the Cuftom, furely the Cafe could not be worfe, where fuch Agreement for making the Purchafe was I for De Term. S. Hill. 171 8. 5-35 for a valuable Conlideration, and Part of the Marriage- Articles. Then as to the Legacy given to the Wife by the ^^^^^ a Freeman's Will, it appearing that this Legacy, together leaveTws with all the other Legacies (for fo it muft be intended^ J^'^^'^w a did not "^ exceed the Husband's Teftamentary Part, it the?c?s'fu^ was (he faid) the fame Thing, as if thefe Legacies SfTerta"-"^ had been given by the Freeman exprefly out of his I'e- mentary ftamentary Part, which he had full Power to difpofe of fh'e'famer^ by his Will; and therefore this Legacy being no Ways fhefhaiihave inconfiftent with the Cuftom, the Wife might in fuch and c?fto- Cafe take both ; for it was only the Inconfiftency be- '"•?'■>' Pa" twixt the Legacy and the Cuftom that prevented the ' Widow or Child in any Cafe from taking both j the Con- fequence of which was, that if the Freeman gave any Legacy out of his Teftamentary Part, the Wife or Child might (provided there was fufficient) take both by the Will and by the Cuftom, and therefore fo might the W^ife do here. When Indeed the Freeman's Teftamentary Part would not pay all his Legacies, there the Wife, if llie were a Legatee, ftiould not take her Legacy and her Cuftomary Part alfo. In the laft Place his Lordfhip faid, it could ne- ver be maintained, that a Deviie of a Real Eftate by a Freeman to his Wife fliould bar her of her Cu- ftomary Part or prevent her from taking both, unlefs it were io exprefled in the Devife ; and that for this plain Reaion becaufe the Deviie of the Real Eftate to the Wife no W^ays lelTened or prejudiced the 6 U Cuftomary * Quare aukm whether fuch Legacy muft not be given out of the Teftamentary Part,' as appears from the Reporter's Notes to have been determined in the Cafe of Biddlc vcrfus BidcUe about this Time. See alfo the Cafe of Frederick verfus Fredsrick^ poft. Cuftonlary Part, nor \vas it any ways material to thofe who were interefted in the Cuftomary or Orphanage Part, where the Real Eftate went j io that there could be no Colour or P'oundation for fiich a Precedent, as Mr. Mead had cited from the Rolls. In all which Points the Court was extremely clear* Cafe 154. Hughes verfus Saycf. At the Rolls: One having ^qHN Hitghes, after feveral Legacies, by his Will phewSand J dlreSied that the Surplus of Ills Perfonal Eftate ^.dcvifesiiis £[^Q^^}^ {^g divided by his Executors into ten Shares, iiltetoJ. three Shares whereof fliould be paid to his Nephew and and B. and -^[^^^ p^j^i ^n^ Afinc Hii^hes Children of a deceafed it citpcr QIC *^ withoutChii- Brother, and upon either of their dying without Children, ^^="' '^^". then to the Survivor, and if both fhould die \\'lchout to tnc ourvi- r^ ■% n ? 1 vor; this is Children, then to the Children of the Teitators other °°° ' Brothers and Sifters. The Qiieftion was, whether this Devlfe over of a Perfonal Eftate upon the Devifees dying without Chil-* dren, was good or not? And his Honour, having taken Time to confider it, gave Judgment th.at the Word [Children] when unborn, had been in Cafe of a Will conftrued to be fynonymous with Ijfue, and therefore would in a Will, C«)6Co.i7. create an Eftate {a) Tail; and if the Word [Children] was underftood to be the fame with Ijfue in the prefent Cafe, then the Devlfe over of the Perional Eftate upon a Death without liTue would be void; but that here the Words [dying without Children] muft be taken to be Children living at the Death of the Party, For that it could not be taken in the other Senfe (that isj whenever there fliould be a Failure of Ifliie, becaufe the immediate 4 Limitation De Term. S. Hill. 1718. 939 Limitation over was to the {a) Surviving Devijce, and {a) vijc it was not probable, that if either of the Devifees ^''^■' ^'"''^r lliould die leaving liTae, the Survivor fliould live 'Lo^nLT ^''''^' long as to fee a Failure of IfTue, which in Notion of Law was fuch a Limitation as might endure for even Ahd therefore, by Reafon of the Limitation over iri Cafe of either of the Devifees dying without Children, then to the Survivor, the Teilator muft be intended to mean a dying without Children living at the Death of the Parent, confequently the Devife over good. Anonymiis, ^^^^ ^ss- Vide Vol. II. 1.01J c/;f- "K/fR. Hale moved for a Sequeftnitlon N/Jt, for want -^'"'"'' '^'''^• •^ -^ of an Anfwer, againft a menial Servant of a Peer ^'J^P™cefs of the Realm, as the firlf Proceis for Contempt, in the againft a me- fame Manner as in the Cafe of the Peer himfclf: and "'f ^^''■^'^'^ 111 • -, ", o' ^ "ser of though the Alotion was granted by the Alalter of the tSie Realm Rolls, yet the Regifter refufed to draw It up, as think- liatit? at/? ing it againft the Courle of the Court. Upon which Mr. Hale moved it again before the Lord Chancellor, who upon reading the Statute (^j (/^) taW. 3. granted the Motion likewife, it appearing to be both '^■'^'" ^' within the Meaning and Words of the Statute ; and if it were not fo, as it was plain no Attachment would lie againft their Perlons, conlequently there would be no Remedy againft them, and they would have a greater Privilege than their Lord, if the Procefs againit fuch menial Servants were to bs a Subpoena. DE- 93^ D E Term. o. 1 rinitatis, 1719 Cafe 15S. Winm7tgton verfus Foley. Lord Chan- ..//.r Parker. T TpoN the Marriage of the Plaintiff Mr. Wining^ Si^ettie- ^"^ ^^'^ ^vh^ ^^s eldeft Son of Sir Francis Winnington, melit Hus- the Family Eftate was fettled upon the Plaintiff for Tenam for ninety-nine Years if he flionld fo long live, Remain- ninety-nine ^gj. ^-^ Truftces duHng his Life, Remainder to the firft, foknViived, tfc. Son of that Marriage in Tail Male fucceffively, Remainder Rgj^ binder to the firft, ^c. Son of any other Marriage, to Trultecs . ■' " during the Remainder over. Life of the Husband, &c. Remainder to the firft, ^c. Son by the Marriage in Tail Male, Remainder to the firft, ^c. Son of any other Wife, Remainder over. A Son is y[Y. Winnineton had by his Lady (who was dead) born and of ^ r a j • m Age, the one Son, who was come oi Age, and was m 1 reaty Wife dead, f^^ ^ Marriage with one of the Daughters and Co- and there are rr r i i C rr r jH • J i noothcrSons helrelTes 01 the Lady Read or Hertjordjhire, and the MaS^e^ Surviving Truftee for preferving contingent Remain- the Truft ders being dead, leaving an Infant Heir, the Father and for prefer- o ving contin- ^ ^^^ gent Re- mainders defcends to an Infant; if for the Benefit of the Family, Equity will decree the In- fant Truftee to join in a Recovery. De Term. S. Trin. 17 19. ^57 Son brought a Bill againft the Infant Heir that he might join in making a Tenant to the Praecipe, in order to a Common Recovery for making a Settlement upon the Son's Marriage. On the Hearing the Lord Chancellor declared, that the Truftee being appointed to preferve contingent Re- mainders, and here being a vefted Remainder in Tail, if this were for the good of the Family, he did not fee but fuch Truftee might lawfully join. But his Lordfhip referred it to the Mafter to Hate whether this was for the Good of the Family. The Mafter reported that the Son was in Treaty for the Marriage abovementioned ; that it was a bene- ficial Marriage for the Family, and that it was ne- ceflary a new Settlement ftiould be made of the Eftatej which could not be done without a Recovery. And now coming on upon the Mafter's Report, Mr. Vernon cited Sir Thomas Tippin/s Cafe (a) where ^"^ ^\^^^\ the Father was Tenant for ninety-nine Years if he Cafe of Ba/- fhould fo long live. Remainder to Truftees during thefe/iw' Life of the Father, Remainder to the firft Son, i5fc. There was no IfTue of the Marriage, and the Truftees joined with the Father in deftroying the contingent Re- mainders, which was held to be no Breach of Truft. Alfo he faid there was a later Cafe, where the Tru- Where a ftee, againfl the Confent of the Sather, joined with thein^Tainr firit Son the Remainder-Man in 1 ail in fuffering a Com- ^^^^^y fub- mon Recovery, and yet held to be no Breach of I'ruft ; tmgent Re"" for when fuch Remainder was vefted in one of full Age, '"^'"'Jers are a fubfequent Remainder was not to be regarded ; neither * was it Affets in- Law or Equity. 6 X Lord \ ^^8 De Term. S. Tr'tn, 1719. Lord chancellor: It might be greatly Mifchievous to a Family, if fuch a Truitee ftiould Itand out and not ioin with the Father and Son, in cutting off the old Settlement and making a new one; this is plainly for the Benefit of the Family, for by the now intended Settlement the Son is to be but Tenant for Life, inftead of Tenant in Tail ; fo that ft is a Means of prefer- ving the Eftate longer in the Family; alfo the Wife of Mr. Winnington the Father being dead, there is an End of the contingent Remainders by that Marriage ; and as to any Remainders by another Marriage, no Remain- der not in ejfe ought to be fo much regarded as this Remainder in Tail, which is actually veiled in Mr. Winnington the Son. Therefore let the Truftee join with the Father and Son, in order to the Barring this, and making a new Settlement, and let the Mailer dire£l a proper Convey- ance in which the Truftee lliall join. Then it was infilled, that the Heir of the Truflee (though an Infantj was yet a Truftee within the A6i {a) 7 Annse, ^^^ which enables Infant Truilees to convey by Di- reftion of a Court of Equity; and therefore it was prayed that the Infant Truftee might levy a Fine^ which muft be good unlefs reverfed during his Infancy* Sedper Cur' : I do not know how I can direct the Judges or Commiffioners to take a Fine from an In- fant ; but let the Mafter direct a proper Conveyance ^i * See this Refolution affirmed by Lord Chancellor King in the Cafe of Town/end verfus Lawton, Vol. II, Hinton De Term. S. Trin. I'^i^. <;^9 HtJiton verfus Pinke, ^^^^^ '57. Lord Chan- cellor Parker, "]\/f RS. Jane Pinke by her Will bequeathed feveral pe- Legacy of ■^ -*- cuniary Legacies, and Qnt' af) gave i 5C0 /. to ^500/. to be her eldefl: Son, in Triift to lay it out in a Purchafe of Landihaii be Lands in Fee, and to grant a Rent-Charge of ^o /. l^''''" f .. ' o . o -» Land, but if per Annum thereout to his Daughter the Plaintifia Deficiency Mary, the Wife of the Plaintiff Hinton for her feparate th^n norfpe- Ufe. But ' cific, but fhall contri- fcute in Proportion. Specific Legacy is what vefts by Aflent of Executofi That if her faid eldefl: Son fhould refufe, or negle6l to lay out I 500 /. in a Purchafe and grant this Rent- Charge, then he to have but 500 /. of the Money, and the remaining looo /. to be laid out in the Pur- chafe of an Annuity, as fir as it would go, for the feparate Uie of the Daughter. There being in this Cafe a Deficiency of Affets, the Qiieftlon was, whether the i 500 /. Legacy, or at leait the 50 /. a Year Annuity, Ihould abate in Proportion? Obje£l:ed it fhould not; becaufe it was ordered to be laid out in Land, and fo confequently to be taken as a Devife of Land, by which ]\leans it was be- come a fpecific Devife, as had been decreed by Lord Corpper in the Cafe of Burridge verfus Bradyl (a), and («) vide an- as it was Land, it was of a different Nature, for it^^'^'" would defcend to the Heir, iyc. Mr. Vernon cont : The Legacy is Money ; and if Mo- ney be devifed to put one out an Apprentice, or an Annual Payment be devifed out of a Perfonal Eftate, thefe, on a Deficiency, fhall abate in Proportion with i the other Legacies. Lord ^40 De Term. S. Trin, 17 19. Lord Chancellor: I agree this 1500/. Legacy fliall be taken as Land, but what the Legacy is, or how much is to be laid out in Land, is the Qiieftion. The Legatee of the i 500 /. cannot fay he has a Right to the 1500/. in Specie; indeed if the Money in fuch a Hand were devifed, this would be a fpecific Legacy : A fpecific Legacy is, where by the AlTent of the Executor the Property of the Legacy would veft. Specific As there is a Benefit one Way to a fpecific Legatee, Legacy as it J niean, that he fhall not contribute; fo there is a Ha- Refpeds the zard the other Way ; for Inftance, if fuch fpecific t'^nolWr I-^g^-'^y (being a Leafe) be evi£led, or (being Goods) Refpeds it be loft or burnt, or (being a Debt) be loft by the Infol- advantagfof ^^ncy of the Debtor, in all thefe Gales fuch fpecific a pecuniary Legatee iKall have no Gontribution from the other Le- ^^''^^' gatees, and therefore ftiall pay no Gontribution towards them. Is it poffible, fuppofing there were in the Prefent Gafe I 500 /. of the Teftator's Money laid upon the Table, that the Plaintiff the Legatee lliould fay, I have a Right to this very Money in Specie ? If not, then it is no fpecific Legacy. But the Will faying that in Gafe of the Son's refufing or neglefting to make this Purchafe, then he is to have but 500 /. of the I 500 /. Legacy, and the Daughter to have the remaining i coo /. therefore I take the Daugh- ter to be a Legatee for looo/. which is to abate in Proportion, and as far as it will go, to be laid out in an Annuity for the Plaintiff the Daughter for her Life and for her feparate Ufe. I And De Term. S. Trin. 1719. ^^\ And Lord Chancellor faid, that though he could not come into the Reiolution of Lord Cowper in the Cafe of Burridge verfus BradyU yet if it were infifted on, he had fuch a Regard for the Precedent as cited, that he would fee the Decretal Order, but this not being infifted upon by the Client, it was decreed ut fupra. Litton verfus Litton. ^^'"^ ^58. I.orri Chan- c-lkr Parker, *7 ITTON Litton married Bridget Moflyn with w^hom inf-'eft for '-' he had no Portion, but an Expeflation of a Real 2',^^-' Eftate, her Father Moflyn having a Real Eftate and but ""''^' *r"ni •r>. 1 what Time. two Daughters. Litton Litton having no Ifllie by her, by his Will de- vifed 500 /. a Year to his faid Wife for her Life, ilTuing out of all his Eflate, and fubje£l to that Annuity gave his Real Eftate to the Plaintift' Robin/on LittoHy made his Wife Bridget Executrix and refiduary Le- gatee, and foon after died. The Plaintiff Robin/on being Devifee of the Real E- ftate which was a very large one, upon the Re- prefentation (as was faid) of the Widow's Father, that the Perfonal Eftate was very confiderable, entred into Articles with the Defendant Bridget^ that on her renouncing the Executorftiip, and delivering over the Perfonal Eftate to the Plaintiff Rohinfon Litton, he in Confideration thereof would indemnify the Defen- dant Bridget Litton from all the Debts of the Teftator, and pay her an additional Annuity of 40 /. per Annum ; the 540 /. a Year was to be paid free from I'axes Half- yearly ; and by thefe Articles the Defendant Bridget agreed to accept of a Security for the J40 /. a Year out of Part of the Eflate only. 6 Y The <;42. De Term, S. Trin. 17 ip. The PlalntifF Limn brought a Bill to be relieved againft thefe Articles, as gained upon a Mifreprefenta- tion of the Value of the Teftator's Perfonai Eftate, which in Reality proved to be 4000 /. lefs than the Teftator's Debts amounted unto, and the Widow brought her Crofs Bill for a Performance of the Articles. But upon the Hearing of this Caufe, it appearing that there was no falfe Inventory or Particular made of the Teftator's Perfonai Eftate by the Defendant Bridget, nor any Eftimate given in of it, whereby the Plaintift^ Rabinfon Litton might be induced upon the Account of the Value of the Perfonai Eftate to come into thefe Articles, and there bemg another Motive to the Plain- tiff Rohinjon to enter into the faid Articles, (^7^•j the Defendant the Widow's accepting the Rent-Charge of 540 /. a Year out of Part only of the Eflate: Lord Corvper difmifted the original Bill with Cofts, but as to the Widow's Bill ordered a Performance ot the Articles, referving the Conlideration of Intereft. The Mafter reported 820 /. due for the Arrears of the Annuity, and thereupon Lord Corpper decreed In- tereft for the Arrears of the Annuity of 540 /. a Year from the very Day of Payment, and this Intereft amount- ing unto about 80 /. Robinfon Litton appealed to Lord Chancellor Parker. And it was argued that this was a voluntary Gift of an Annuity by Will, not as a Jointure before Marriage, nor as a Purchafe, neither was there any Claufe of En- try or nomine Pan^ to intitle the Annuitant to Intereft: ; that it could not be intended the Annuitant was to be paid at the very Day, but fome Time was to be allowed ; and if the Annuity were paid one Half- Year 2' under De Term. S. Trin. 17 19. 943 under another, it was fufficient; for the Annuity was granted to iilue out of the Land, and as the Rent of the Land mull: be admitted to be well paid if paid one Half- Year under another, fo ought the Annuity iffuing out of thefe Lands. That if an Adion of Debt were brought for this Annuity, or a Diftrefs made for it-, the Plaintiff in fuch Caie would not at Law have re- covered Intereft ; and why iliould Ihe recover it in E- quity, efpecially when the now Plaintiff offered to pay the Intereft from the End of Half a Year after the Annuity became due? That according to the Rule of the Court, in the Cafe of an Annuity, though granted for a Jointure, the In- tereft iliould be computed only fi-om the Day when the fubfequent Payment after the Arrear incurred be- came due. On the other Side it was infilled that this Annuity Was the \Vidov*''s Bread, and it muft be admitted to be due at the Day of Payment, from which Day the Party who was to pay rliis Annuity, by with*holding it in his own Hand did Wrong, and ought to anfwer Intereil ; at that Time the Widow might be neceffitated to bor- row Money, and if Ifie borrowed - Money muft pay Intereft for it, confequently if liable to pay Interclf, llie ought by the fame Reafon to receive it. Cur : Intereft is a Thing pretty much in the Dif- An Anmiity cretion of the Court; and lince Lord Chancellor G?2r/>^r, by theHus- that great Uafler of Equity, who heard the Circum- ^^'J'^'^"^'"' ftances and Merits of the Cauie, appointed the Defen- iiucreli from dant Mr. Robinfon Litton to pay Intereft from the very ^iic Day on , . , •' J J /■ 1 • whicnitwas Day that it became due, and iince this appears to have payable, and been the Widow's Bread, the Decree flia^i ftand. "^^^ His fubl'i;quent Day of Pay- m:nt after &.z A rwrs incurred. 944 ^^ Term. S. Trin. 17 ip. His Lordfhip added, he did not approve of the Di- verfity that the Intereft Ihould only be carried from the Half- Year after the Default of Payment ; for fiip- polin^ the Payment were but yearly, Ihould it carry intereft but from a Year after the Expiration of the Year, when what became due for this Annuity was all the Widow had to fubfift upon? Scd ^^ere as to this ; for it feems the Arrears (hould carry Intereft only from the firft Day of Payment next after the Arrears of the Annuity became due, if pay- able Half-yearly, then from the next Half- Year Day ; if Qiiarterly, then from the next Qiiarter-Day, and fo has been the common Rule in theie Cafes ; but the Hardlhip of the principal Cafe (though untruly fug- gefted) and the Weight of Lord Cowper's Decree before whom the whole Merits of the Caufe were heard, feemed to influence the Court in this Matter. Cafe 159. Farrin^ton verfus Knhhth. Lord Chan- ^ C^ -J cellar Parker. L^Chancery A ^thoYiy VptoH late of Lwcoln s Iyih Efq; made his 566. ^ *■ Will, by which (/«f' d') he declared as to his Executor Perfonal Eftate (if he Ihould leave any) that he gave prefsLe- 50 /. thcrcof to his Brother A. 50 /. to his Nephew R. frhas^tiw ^^^ made the faid A. and B. Executors, and gave 20 j-. nextof Kin, a-picce to Others of his Relations, feveral of whom pofitiTnof' were his Brothers, Nephews and Nieces, and as fuch the Surplus ; his ucxt of Kiu in equal Degree within the Statute of tiecreed'tobc Diftributlon, aftct which the leftator abruptly broke diftnbuted.* qA" without faying, InWhneJs whereof, &c. or making I any * Vide the Cafes of Rachfidd verfus Carekfs, the Duke of Rutland verfus Buchefs of Rutland poft, accord, fed vide the Cafe of Attorney General verfus Hooker poft, where Lord King was of a contrary Opi- nion, conceiving that where the Executor and next of Kin had each of them a Legacy, the undifpofed Surplus would by Law belong to the Executor, and he (hould retain it. De Term. S. Trin. 17 19. 949 any Difpofition of the Surplus, which amounted to about 1 200 /. , All the Will was written with the Teftator's own Hand, though not jigned by him, and was proved in the Spiritual Court as his Will. They who w^ere in equal Degree of Kindred with the Executor's brought this Bill to have their Shares of the Surplus, according to the Statute. Mr. Vernon for the Plaintiffs : The Cafe which ftands fi:>remoft in the Court upon this Head, is that of Foflcr (a) and .Munt, where exprefs Legacies were given to W » Vem, the Executors, and likewife to the next of Kin ; and it was decreed fuch Executors were but Truftees of the Surplus for the next of Kin ; for where a Legacy is given to an Executor, if he was to have the Surplus likewifp undifpofed of by the Will, it would be giving him Al and lome. Nay, It has been held in this Court, that where there were two Executors, and an exprefs Legacy was given to one of them only, this fhould exclude them loth from the Surplus j which is Wronger than the prin- cipal Cafe where Legacies are given to hth the Execu- tors, and even in the Cafes of the Duchefs of (If) Beaw (//)Anteii4. fort, (c) Ball verfus Smith, Littkhiiry verlus Bidkley, {c) 2 Vem. Proof was admitted to fliew it to have been the Inten- ^"5- tion of the Teflators, that though the Executors had exprels Legacies, yet they fhould likewife have the un- dilpofed Surplus ; but it wouU have been altogether unnecelfary to prove fuch Intention, if the Executors were of Courfe to have had the Surplus. But further, this Cafe is the ftronger, in as much as the Will is left-imperfsdl: without iigning, and breaks off abruptly j whereas if the Teftator had lived to finilh 6 Z it, ^46 De Term. S. Trtn. 1 7 19. it, it is not to be fuppofed but he would have provided for thofe who were as near of Kin to him as the Ex- ecutors themfelves. On the other Hand Sir Rohen Raymond for the De- fendants admitted it to have been iormerly the current Opinion, that where an exprefs Legacy was given to an Executor, and no Difpofition made of the Surplus, the Executor was but a Truftee of fuch Surplus for the next of Kin; but faid of late the Refolutions had been otherwife ; that accordingly it was fo refolved in the Cafe of Ball and Smith by Lord Earcourt on great Confideration and View of all the Precedents; though it was true in that Cafe the Wife was Ex- ecutrix. That to the fame Efte£l was the Refolution of the Houfe of Lords in the Cafe of the Duchejs of Beaufort, and that of Littlebiiry verfus Bulkley. And as to what had been objefled, that unlefs the Executor lliould be held a Truftee of the Surplus, it would be giving him all and fome ; he faid where a Will gives the Executor an exprefs Legacy, it may well be intended by the Teftator, that in all Events the Executor Ihall have his Legacy, although there lliould come out to be no Surplus ; but that if any Surplus ftiall remain, the Executor lliall have that Surplus alio. That the Teftator by making one his Executor does thereby give him all his legal Intereft in the Perfonal Eftate. That the Statute of Diftribution could not take Place or have any Eft'e£l where there was a Will or an Executor ; forafmuch as that Statute operated only upon Inteftates Efiates, and the Party cannot be laid to die Inteflate where he has made an Executor, and declared that this is his Will ; and as the prelent Cafe was not within the Statute of Diftribution, fo, independant there- I of De Term. S. Trin. 17 19. ''«"- And his Lordfiiip faid, that he had fpoke with Mr. Vernon in his Life-1'ime * upon this Subjefl, who faid that there had been fo many Decrees upon the Point where a Legacy was given to an Executor and no Difpo- lition of the Surplus, that the Executor was but a Truftee of fuch Surplus, and this Point had been there- by fo fully eftabliihed, that he did not think it worth while to take Notice of any latter Decrees of this Na- ture ; apprehending it to be a Principle as much ^xzdj as that Fee-Simple Land Ihould defcend to the Heir. His Lordfhip likewife took Notice of the Precedents which had been left with him by the other Side. As Firfl, The Ducb^fs of Beaufort's Cafe, February 24, 1709, where the firft Duke of Beaufort gave the life of his Plate to his Duchefs for Life, whom he made Executrix, and afterwards gave the Plate to his Grand- fon the late Duke, without Diipofing of tlie Surplus ; and * Mr. Vernm died the February before this Decree was pronounced. ^^z De Term. S. Trin. 17 19. ana decreed by Lord Corvper that the Duchels was but a Truftee as to the Surplus, for the next of Kin ; but reverfed by the Houfe of Lords ; the Reafon of which might be, becaufe this was not properly a Devife to the Duchefs of the Ufe of the Plate, but rather an Exception or Refervation to the Duchefs, a Devife of the Plate to the Grandfon, referving the Ufe there- of to the Duchefs the Executrix for her Life. {a) Micb. Secondly, (a) Weflcomb verfus Jones, Mich. lO Anme, '^"" by Lord Keeper Har court, where a Leafe for Years was bequeathed to the Executrix for Life, with Remainder over to J. S. and decreed that the Executrix was not barred of the undifpofed Surplus ; and this his Lord- lliip held might be fo, within the Reafon of the Duchefs of Beaufort's Cafe ; for it being an Exception or Refer- vation of the Term to the Executrix for her Life, it was not properly a Devife to the Executrix^ and confe- quently no Bar. (*) aVern. Thirdly, (h) Ball verfus Smith, Hill. lo Ann^e, by Lord ^'^^' Keeper Har court. One devifed fome Plate to his Wife which line had as Executrix to her former Husband, and two other Pieces of Plate, in Lieu of and Recompence for fome other Plate which likewife had belonged to his faid Wife as Executrix to her form.er Hufljand, but which the Teftator had himiVlf difpofed of; and made no Devife of the Surplus: Decreed, this lliould not bar the Wife of the Surplus of the 1 eitator's Perfonal Eftate, for this Reafon, the Deviie to her of the Plate which Ihe before was intitled to as Executrix of her former Hus- band was void, the fecond Hufoand having no Power to dlfpofe of that by his Will, "^^ though he might do it by Act executed in his Life-Time ; alio as to the De- vite lo her of the other Plate, in Lieu of, and Recom- pence for what he had difpofed of in his Life-Time, I out * But by the Report of this Cafe, 2 Fern. Lord Harcourt faid he Was content to have it confidered as a Legacy given by her Husband. De Term. S. Trin. 1719. 993 out of that which belonged to her as Executrix, it muft be reafonable to conftriie this as a Reftitutlon ra- ther than a Gifti. His Lordfliip faid there were feveral other Prece- dents on each Side, but thefe he thought to be the moft material. That as to the Reafon of the Cafe it was moft plain, the making a Perfon Executor ought not to a- mount to a Gift of the Teftator's Perlbnal Eftate; it was no more than making him a Truftee, the very- Word Executor importing ex vi Termini that he was only appointed to execute the Will, and to have nothing but the Management of the Perfonal Eftate. That this was demonftrable by a very common Cafe : As if I make A. my Executor, and fay no more, and A. dies Inteftate, without difpoling in his Life-Time of this Perfonal Eftate, (b) my next of Kin, and not the ^t} X''^^ p*^ c IT- r x^ n n 1 » i • -n • DukeofRut- next or Kin or my Executor^ mail nave Adminiitration land verfus de Bonis non, together with all my Perfonal Eftate. ^uttnd"^ Whereas were I to make A. my Executor, and alfo give him my Perfonal Eftate, and die, and afterwards my Executor fhould die inteftate, without difpoiing of my Perfonal Eftate, the next of Kin and Adminiftra* tor of my Executor Ihould have this Perfonal Eftate, and not my next of Kin, which is a Demonftration, that the making a Man Executot is not giving him the Per- fonal Eftate ; for in the one Cafe only, where the Per- fonal Eftate is given to the Executor, on the Death of fuch Executor, fliall his next of Kin have the Perfonal Eftate, but not in the other. That the Executor is but a Truftee, and fuch, as well with Regard to the Legacies given by the Will to 7 S a 5*^4 ^^ Term. S. Trin. 17 19. {„) Port a {a) third Perion, as to the reft of the Perfonal ////«rfvcrfus pfl;.:^te, is plain, in that if the Teftator by Will gives a Legacy (fuppofe the Legacy of a Horfe) to J. S. and dies, ftill the legal Property of this Horfe is in the Executor, as much as the legal Title to the reft of the Teftator's Perfonal Eftate, and fuch legal Property of the Horfe continues in the Executor until he alfents to the Legacy. By the Statute of Diftribution the Succeftion to the Perfonal Eftate is as ir.uch fettled and fixed in the next of Kin (where it is not difpofed of by the Will) as by the Common Law the Title to the Real Eftate is fixed in the Heir at Law, if not given aw^ay by the Will ; and therefore it might in Reafon be a Qiieftion, even if there were no exprefs Legacy given to the Ex- ecutors, nor any Difpolition of the Surplus by the Will ; for it feems within the Reafon of the Cafe, where a Man by his Will devifes his Real Eftate to J. S. for the Payment of his Debts, after Payment thereof the De- viiee is clearly but a Truftee for the Heir. Even fo by making an Executor, I make him a Tru- ftee of my Perfonal Eftate for the Payment of my Debts ; and if I do not give him the Surplus, why fhould not fuch an Executor pari ratione be a Truftee for my next of Kin ? But this may be carrying it too far. However, where the Teftator by exprefs Words has faid that his Executors fhould have 50/. a-piece out of his Perfonal Eftate, it were offering Violence to the Will, for a Court of Equity to f^y fuch Executors fhould not only have 50 /. a-piece, but all the Reft of the Perfonal Eftate ; this would be indeed faying, that fuch Executors fhould have all and fome. An De Term. S. Trin. 17 15?. ^^^ An Executor has nothing in his own Right, but what is exprelly given him by the Will, and fo differs from an Heir who is feiled in his own Right ; and it is moft re;iionable, that where a Teftator gives his Perfonal E- ftate from his neareft Relations, he fljoidd Jay fo, elfe wliy Ihould it be preiumed ? Befides this Cale is the ftronger, in regard the Will is plainly an imperfc£l and unfiniihed Will ; and it is not to be imagined but that if the I'eftator had compleated it, he would have given a Competency to his next of Kin, which he has here not done. Upon the whole ; here being an exprefs Legacy of 50 /. to each of the Executors, and no Difpofition of the Surplus of the Perfonal Ellate, the Executors are but Trulfees with Refpeft to fuch Surplus, which mull go to the next of Kin, according to the Statute of Diftribution. Sir Matthew Jen/fon verfus L^r^cafci 60. Lexington. Maferofthc Rolls. A Tenant for three Lives to him and his Heirs, af- 7-S. LefTee figns over his whole Eftate in the Premiffes by hL^and^ls Leafe and Releafe, to J. S. and his Heirs, referving a ^"'^'^^ f^"" Rent of I o /. a Year to the Alhgnor, his Executors, aiigL IiT' Adminiftrators and A(]ims. with Provifo that upon Non- ^^^^^^ ^- payment the Ailignor and his Heirs might re-enter, and vingaRent the Aflicinee covenants to pay the Rent to A. the Af- f° '''.'" ^"'^ ., /• T-> n lii.s hxc-cu- lignor, his Executors and Adminiftrators. tors, and dies, his Ex- ecutors and not his Heir are entitled to the Rent. Obje£led, This Rent referved comes in Lieu of Land, and as the Land would have gone to the AfTignor and his c;^6 De Term. S. Trin. 17 19. his Heirs, fo fhall the Rent, and this is further explained by the Provifo, which fays the Affignor and his Heirs fl)all enter. On the other Side I infifted, that the Affignor having parted with his whole Eftate for all the three Lives, he had no Reverlion left in him to which the Rent could be incident; and therefore it being by exprefs Words refer ved to the Executors, it fhould go to them for the three Lives. That in Cafe one feifed in Fee Ihould leafe the Premifles for Years, referving a Rent to the I^efTor and his Executors, this would prevent the Rent from going to the Heir, though he had the Re- {a) I inft. verlion, and the Rent in fuch Cale w^^uld (a) fink '^' ' ^' after the Death of the Lefibr, and would not go to the Executors, becaufe they would not be intitled to the Reverlion to which the Rent was incident; So if Te- nant for three Lives were to make a Leafe for Years, relet V in" a Rent to him and his Executors, it would not go to his Heir, neither to his Executors ; but in the Principal Cafe, there being no Reverfion to which the Rent was incident, it might be referved to the Execu- tors. For That when the whole Eftate was granted away, re- ferving a Rent, the Refervatlon of the Rent was like a new Grant from the Aflignee, and there was no Doubt but a Rent might be granted or affigned to one {h) 2 Saund. and his Executors for three Lives. That in Sacheverel (b) '' and Probate's Cafe, where a Man feifed in Fee leafed the PremilTes, referving a Rent to hlmfelf, his Execu- tors and Admlniftrators during the Term, it was the Words [during the Term] which made it a good Refer- vatlon to the Heir. Cur : It is a plain Cafe and no need of mooting it ; here is no Reverlion to the x\fiignor, and the Rent is by 2 expreis De Term. S. Trin. 1719. ^97 exprefs Words referved to the Executor, the Provifo for the Heir to enter is not material, as long as the Reler- vation of the Rent is to the Executor, for in fuch Cafe the Heir is a Truftee for the Executor ; fo dif- mifs the Bill with Gofts. Afterwards (a) this Matter came on asain bv a Bill ("^ '^""- of Interpleader of the Duke and Duchels of Rutland's ' ' Daughter^ Heir and Executrix of Lord Lexington y at the Hearing of which, Sir Matthew Jennifon made Default ; and Lord Chancellor King faid, that if the Refervation were void, yet the Covenant mult be plainly good, which was to pay the Rent to the Exe- cutors and Adminiftrators of A. the Allignor ; but the Court inclined that here being no Reverlion, the Rent during the three Lives might be well referved to the Executors; and at Length decreed it to the Execu- tors. Baugh verius Hollon^a^. ^^" '^*- Lord Chan- cellor Parker. /^NE makes his Will and (int^ at) devifes Lands to One of the ^-^ A. and his Heirs, in Truft to pay the Teiktor's three wit- ' r y •re fielles to the Heir at Law 200 /. and there are three Witnelles to win is a the Will, one of which is^ himfelf the Devifee of thefe \Zt^t^ Lands. I-and; Whe- ther not a good Witnefs, if he aliens the Land wfthout Covenant or Warranty ? The Heir brings his Bill to impeach the Will for Want of three credible Witnefles, in Regard A. the Devifee of the Land is not a credible Witneis, but a Party interefted. Whereupon Sir Robert Raymond obferved, that it hud been determined in the Cafe of {a) Hildyard verfiis {a) Carth, Jennings by Lord Chief Juftice Holt, that the Will as^'"^' 7 C to ^98 De Term. S. 7rin, 17 19. to this Devlfe only, was void, and then A. would be a {a) Vide pQo^ Witnefs as to the Reft U) of the Will. Swinb. 296. o Nay, that even with Refpefl: to the Lands devifed to A. if A. had aliened fuch Lands without any Cove- nant or Warranty, or had not by taking the Rents and Profits been liable to Account, he would, according to the above mentioned Refolution, have been a good Witnefs to the whole Will ; juft as if A. had been a [h) Swinb. Legatee of Money., and (/') had releafed the Legacy, ubi fupra. ^^^^ could In fuch Cafe (as every Day's Experience ftiews) have been no Obje£l:ion to his Evidence. The Court fald nothing as to this Point, but that the Heir ought to have contefted the Will at Law ; and if it had been adjudged agalnft him there, {vi\^ that the Will was good, then he mi^ht have come here for the 2 CO /. wherefore retain the Bill for a Year from 'Michaelmas Term next, that the Plaintiff' may have two Affizes to try this Will, but let the Plaintiff pay the Defendant his Cofts. Cafe 162. Marlovi verfus Pitfeild. rows Money (^NE Pitfeild au Lifant, whofe Eftate was confider- during his V_y ^[^j^^ ^^^^ confiftcd chicfly of a Reverfion after applies it to his Father's Death, having married without his Father's *f^N^"fl^ Conlent, was thereupon diicarded by him, and forced Ties, and af- to take a Hou{e for bimfelf and his Wife. Not long wards CO- f^. ^.j^jg j^ attained his lull Are, and having during; his ming to ^> _' fc> iD Age devifes Infancy borrowed Money (which Money io borrowed fo! Payment ^'^"'^^"^'^^^ to I 3 o /.) and therewith bought fome Ne- ofhisDebts; ceffaries, made his Will, deviling his Real Eftate to contradtd 1'ruftees for the Payment of his Debts with In- during In- fercft. fancy is . within the I 1 lie 'Iruft. De Term. S. Trin. 1719. 5*99 The Qiieftlon was, whetl>er the Monies aftually ad- vanced to the Teftator Pitfeild during his Infancy were to be paid within this Triiil ? His Honour< the ALfter of the Rolls took Time to coniider of it, and now gave his Opinion that this Money a£lually lent to the Teftator, though during his Infancy, was within the Truft and ought to be paid. JFirfi, The Court admitted that if an Infant be fued in an Ajjumpfit for Money lent him during his Inf tncy, the Defendant may plead Kon alfumpfit, and give the In- fancy in Evidence, which demoiiftrates that the Promile or Contra£l: is void, and therefore to be given in Evi- dence on Non ajftimpfit, as was refolved by Treby Chief Juftice. {a) And the Diverfity is betwixt the Deed or ("j ^^'^• Bond, and the bare Promife of an Infant ; for though 387'. " the latter be merely void, fo as to enable the Defendant to plead Non affumpjit, yet in Cafe of the former, the Infant cannot avail himielf of the Plea of Non efl Fac- tum, but muft plead his Infancy. Secondly, Though the Law be, that if one aiffually infant bor- lend Money to an Infant, even to pay for Neceflarics, ^^;;j^;\^,°"7^ yet as the Infint in fuch Cafe may waftc and mllapply towardsPay- it, he is therefore not liable, according to the Relolu- 'SLt)'"' tion in Salk. 279. it is however otherwife in Equity ; Nccciraries; for if one lends Money to an Infant to pay a Dtbt for to pay this in Necejjaries, and in Confequente thereof the Infant does ^4"'^)'' t''o' pay the Debt, here although he may not be liable at Law, he mulf nevertheleis be fo in Equity; becaule in this. Cafe the Lender of the Money ffands in the (I?) Place of the Perfon paid, rv^. the Creditor for 2„rl?vcr NecefTaries, and lliali recover in Equity, as the other fus Lu. fliould have done at Law. Third/yr <;6o De Term. S. Trin. 17 19. Thirdly^ His Honour thought that as Equity fliould take Care of Creditors, io it ought to fhew it's Concern for Infants, and not give any Encouragement whereby thefe might be drawn in during their Infancy to take up fuch Sums as might ruin them ; and therefore had there been in the Principal Cafe the leaft Circumftance of Fraud, or had the Money been advanced to fupply the Infant's Extravagancies, he fliould have been of a different Opinion ; but here the principal Sum being but 130/. and the Infant's Eflate confiderable, and he being on his Father's Difpleafure left deftitute and obliged to borrow Money for his neceilary Support, it could not be imagined but had the Teftator been now living, and been asked the Queftion, whether the Debts which he had aftually and without Fraud con- trafted, fliould be paid within the Truft? He would have faid that they ought to be paid. Wherefore confidering all Circumftances, and parti- cularly iince he did not barely deflre that his Debts fliould be paid, but with Interefl: alfo (which is unufual); it was decreed, that this Money a6lually lent as afore- faid, though during the Tefl:ator's Infancy, Was within the Trufl. c^'"'^ ^^- . Ex parte Salkeld. Lord Chan- cellor Parker. CrcxiiL'' Q^Alkeld was a Clothier in Town, and Hale made Cloth Comm.ffion'' ^" Wiltfljive ', Salkeld was indebted to Hale in i8c /. of Bank- for cloths, and afterwards by Bill of Sale alflgned over ruptcy and fi^g^g Q^^^^'^'i int al' to his Fathcr-In-Law Jackfon to- proves Ins ^ -, • r- r\- r '^ •' , Debt, and wards Satisfaction of a Debt pretended to be due from '"Tft him to Jackfon. on to be an J J Aflignec, 2 Hak (being in- formed tliat otherwife he fhould lufc his Debt) yet if the Bankrupt has no Eflate, the Credi- tor miy take the Bankrupt in Execution, if he will waive any Benefit of the Statute. De Term. S. Trin. 17 19. ^6^1 Bale brought an A£l:ion at Law againft Sdkeld^ and having obtained Judgment took him in Execution on a Ca. Sa. and this was about two Years fince ; an A£1 was made the {a) lalt Seflions, whereby a Bankrupt, in ''^^f^\. Cafe he lurrenders himlelf, be examined, and four iPifths in Value and Number of his Creditors fign his Certificate, and teftify their Confent, ^c. is to be dif- tharged. After this, the Bankrupt's Father-in-Law takes out a Commillion of Bankruptcy againft Salkeld, under which Hale is prevailed on to come and be AlTignee, being told that otherwife the Bankrupt's Father-in-I.aw would fmk the Eftate and get him difcharged. It proved that the Bankrupt's remaining Eftate was but fome few Shillings, and fome defperate Debts. Salkeld the Bankrupt petitions that he might be dif- charged out of Execution, lince Hale, at whofe Suit he was taken in Execution, had come Into the Commillion, and proved his Debt, nay was the Aftignee under the Commillion, and that this had been often fettled ; nor could it make any Dlverlity, whether the Bankrupt's E- ftate was great or fmall, for the Creditors could have but all ; That though Hale had propofed waiving all Benefit and Advantage accruing from the Commillion, yet this was now too late, he having come in under it, proved his Debt, and confented to be Aftignee, which was a plain Election to proceed this Way, and being once made could not be waived afterwards. On the other Side it was infifted, that If Fraud ap- peared on the Bankrupt's Side, and an honeft Debt on the Creditor's, Equity ought not to interfere in Pre- 7 D judice ^ ^6z De Term. S. Trin. 17 19. JLidice of the honeft Creditor, and in Favour of the fraudulent Bankrupt ; which Lord Chancellor admitted. That here was Fraud apparent, when the Bankrupt's Father-in-Law took out the Commiffion, which mull: be intended in Favour of the Bankrupt, and not of his Creditors ; whereas the Creditors Good is the proper End of fuing out Commilhons. TheReafon 'pj^^j- J,- j-nlght be thouoht nccelTary Hale fliould of a Credi- ^ ^ . tor's coming prove his Debt before the Commiffioners in order to Com"miffio^n ^~'PP<^^e ^^^6 Bankrupt's Difcharge ; and this was held to and proving be rcafouable by Lord Chancellor. his Debt, ■' may be to oppofe the Bankrupt's being difcharged. That the Reafon of it's having been frequently ruled that a Creditor could not come in before Commiilioners, and then detain the Body of the Bankrupt in Prifon, was, becaufe it would be unconfcionable the Creditor fhould detain the Bankrupt's Body in Cuilody for Non-payment of his Debts, and yet feife all his Effate wherewith he was to pay them; but this Cafe differed, the Bankrupt having no Eflate left to feife, in Regard all had been before made away by the Bill of Sale to his Father-in-Law. No Eieaion 'Yh2Lt another Reafon why the Creditor fhould not Creditor's detain the Bankrupt's Body in Prifon for a Debt, coming in ^y^g ^ecaufe by coming into the Commilnon the under the ^, ■' i-r>rriT>i > Commiffion Creditor eleSbed to have the Beneht or the Bankrupt s cut^'ordl Kft'if^ towards fatisfying his Debt, and therefore ought Bankrupt's to waivc his former Execution of the Body ; but here no Effeas. ^^o^'l"^! ^^ no Election of an Eft:ate where there was none ; and this was like the Cafe of an Elegit to extend the Moiety of the Land, where after luch an Execution, the Plaintiff, it was true, could not take the Perlon of the Defendant, but if the Sheriff ihould return 4 that De Term. S. Trin. 17 19. 9^3 that there was no Land, this would be no Election, and the Plaintlfif might afterwards take the Body of the Defendant. Notwithftanding, that in this Cafe the Creditor, to Ifiew he was fatisfied there was no E- ftate of the Bankrupt left to be dillributed, was wilh'ng to waive ail Benefit and Advantage under the Corn- mi flion. Cur : This Commidion is plainly fucd out fraudu- Argument lently by the Bankrupt's Father-in-Law to dil'charge theCommif- the Bankrupt out of Cuftody ; the Propofil is fair on ^'0"''efucd the Creditor's Side, to waive any Benefit under the Bankrupt's Commiffion, and therefore ought to be accepted : the ^'''"-''■' '" . . o . ,' order to dil- Creditor cannot be faid to ele61: to be Satisfied out of charge the the Eftate, w here there is none, which more partlcu- ^■^"'"'"p^" larly diftinguillies this Cafe. I will not difcharge this Bankrupt to the Prejudice of a Creditor, where it appears on the Face of the Thing, that the Commiffion was fued out in Favour of the Bankrupt himfelf by his Father-in-Law, and not for the Service and x\dvantage of Creditors. o s Pijthury verfus EI kin. ^^^'^ '^+- "^ Lord Chan- cellor Parker. NE makes his Wife Executrix, and gives her all 2Verii.758, . . - "66 his Goods and Chattels ; provided that if Jhe /Jjall ^^J ^^^^ die without Iffue by the faid Tefiator, then after her De- fcd of a Per- ceafe 8o /. lliall remain to the leftator's Brother J. S. ^^^^^ afterwards the Teftator dies. * Witc dies fam IfTiie by him, that then 80 /. fliall be paid to his Brother, good. Alfo good, though tlie Brother dies in the Lite of the Wife. J. S. the Teftator 's Brother dies In the Life-Time of the Teftator 's Wife, and then the Wile dies without Iftue, upon which the Qiieftions were, FirJI, Whether this 9^4 ^^ 7eYm. S. Trin. 17 1 9. this Legacy of 80 /. was originally good, it being to take Effect in Cafe the Teftator's Wife Ihould die without Iffue by the Teftator ? Secondly, Whether if originally good, it was not fince become void by the Death of J. S. the Legatee in the Life-time of the Teftator's Wife, and before the Contingency happened? This Cafe being argued before Lord Chancellor, his Lordihip took Time to confider of it, and now gave Judgment. Senfesof"the He faid, that the Words [dying without IlTue] l^ithmt tr"e ^^^^ Several Senfes {a) ; as Firfl, a legal Senfe, when , , . ,.. there was a Failure of IfTue of Tenant in Tail, fo as [a] Ante Nt- . . , .1 - chois verfus to lutitle the Remamder-maii, or Reveriioner to a For' "pe'-, 198- fjj^dof^ 111 Remainder or Reverter, which Is, whenever there is a Failure of IlTue of the Body of Tenant in Tail. Secondly, Another Senfe of dying without Iffue was, if the Party died without ever having had Iffue, and that was the Senfe put upon thefe Words in the Cafe of Brett verkis Pildridge, cited in i Sid. 102. and in i Kel?. 248, 462. where a Man gave a Portion with his Daughter in Marriage, and the Husband Covenanted with his Father-in-Law to repay him 500 /. Part of the Portion, if the Daughter Ifiould dye without Iffue within two Years after the Marriage ; the Daughter had IfTue with- in two Years, but Hie and afterwards her Ifllie died without Iffue within the two Years ; and the Cafe coming on in Chancery was referred to the Opinion of four Judges, who all held, that the Father Ihould not have any of the Portion back again, in Regard there once had been Iffue of the Marriage. I Thirdly, De Term. S. Trin. I'ji^. ^69 Thirdly, But by the third Senfe of a Perfon's dying without Iffue, is intended, without leaving Ijjue at the Time of his {a) Death, and in this Senfe the Words (") Ante [dying without IfTue] lliall be taken in the principal JoftX^ ^ Cale ; which indeed feems to be the natural Mean- ''"^''^ ^''"P- ing of thele Words : For taking the Cafe to be that '"""" J. S. dies leaving a Son, and afterwards that Son dies without Ifllie, and one Ihould ask any Gentleman (not of the Bar) whether J. S. died without Ifliie ? It would be naturally, truly and properly anfwered No: J. S. did not die without Illue, but left Ifllie a Son ; but that Son is lince dead without Ifl'ue, lo that norv J. S. is dead without Ifl'ue ; for the Words [die without Ifllie] are relative to the Death of the Party, and it is plain, that at J. S.'s Death, when he left a Son, he did not die without Ifllie. Moreover, in the Principal Cafe, the Words import ftrongly that they are to be intended in this Senfe (to wit) dying without Ilfue living at the Party s Death, becaul'e the Legacy of 80 /. (being the Legacy in Qiie- ftionj if the Wife fhould die without Ifllie by the Te- ftator, then after her Deceafe is to remain to the Tefta- tor's Brother (/>), which Words then after, i. e. immedi- {/>) See the ately after, would be inconfiftent and repugnant, if the S^Jj/ver- dying without Ifl'tie fliould be taken in the other Senfe f^s %.r, whenever there fliall be a Failure of Ifllie; for this would be carrying the Payment beyond the Day ; it would be as abfurd as to appoint the Day of Payment to be to Morrow, if it ihall rain this Day Twelve- month, which is to make the Condition over-reach the Day of Payment. Alfo his Lordfliip faid, that taking the 80 /. as in- tended to be given whenever there Ihould be a Fai- lure of Iflue of the Body of the leltator's Wife by 7 E him <;66 De Term. S. 7rin. 17 19. him; this would be a ftrange Clog upon a Perfonal Eftate, and fubjefting it to the Payment of a Sum of Money (as it might happen) one Hundred Years hence, when it would be no Kindnefs to the Legatee, in whofe (a) Vide Favour it was (a) Perfonally intended; but by that terfus "^"^ Time he muft.be fuppofed to be dead, and it might Hooper, 198. {)g difficult at fuch a Diftance of Time to find out his Reprefentatives. Not but that a Covenant to pay a Sum of Money when there ftiould be a Failure of II- p]^J!iMf ^^^e of the Body of B. would furely be (b) good. fus Pleydel. As to the other Point in the principal Cafe, that the Teftator's Brother who was the Legatee of the 80 /. in Qiieftion, was dead before the happening of the Con- tingency, that is, before the Teftator's Wife died with- out IlTue, the Court faid, they were of Opinion, this Poflibility would go to the Executors of the Lega- tee. That it was true in Swinburne 461, 4^2, ^c, fome Cafes were put which feemed to import the Con- trary ; but thofe Cafes were fo darkly put, and with fo many Inconliftencies, as to be all over-ballanced by the Opinion of Lord Nottingham in 2 Vent. 347. {Anonymus Cafe) where a Man devifed 1 00 /. to A. at the Age of twenty -one Years, and if A. died under Age, then to B. B. died in the Life-Time of A. and afterwards A. died under Age, yet decreed that the Executors of B. ftiould have this 100 L Therefore decree that the Plaintiff fiiall have his Legacy of 80 /. with Intereft from the Death of the Teftator's Wife, and alfo his Cofts, Cann De Term. S. Trin. 17 19. 967 Cann verfus Cann, ^afc 165. Lord Chatt- fw'/«r Parker, HE Plaintiff examined WitnefTes de bene effe, and See more re- T -*- afterwards examined them in Chief, and the !^''"s ^" ^'"^ Caufe was heard; but the Court taking Time to con- Court re- fider of it, and the Defendant obfervln^ that fome of I"rf ^1-!° ^'i^' the Witnelles exammed by the Plalntlft to prove the tions Je bene Will in Q_aeftlon (which was by the Plaintiff alledged to £' to' com- be made by Sir Robert Cann the Defendant's Father fub- P-^f^ ^'^em fequent to that Will under which the Defendant claim- poiUiom?n" ed, who was the younger Son of the faid Sir Hobert "^'f '^""'^ Cann) had confeffed, that they would not fwear the on anExa-" Defendant's Father did ever ii"n the faid Will, and that !^,''."^'°" '" yet the lame Witneffes, when examined in Chief, had Iworn pofitively the faid Defendant's Father Sir Robert Cann did lign the Will, which pretended Will was alledged by the Plaintiff to have been luppreffed by the Defen- dant's Mother-in-Law, and by the Defendant himlelf! The Defendant having Reafon to believe, that the Witneffes when examined de bene ejfe, did not fwear fo fully, as they had been prevailed upon to do when ex- amined in Chief, petitioned the Lord Chancellor, that thefe Depofitions de bene ejfe might be publilhed, or at lead: that his Lordfhlp would be pleafed to order them to be brought before bim for his Infpeftlon, which in this Cafe his Predeceffors Lord Sommers and Lord Coir- per had done, in order toiatisfy^themielves whether the Caufe which had llept fo long as Years, fhould proceed or no. And for the Petition it was urged, that it could not be thought thijt the Plaintiff hlmlelf fhould oppofc this J'rayer, it being only to dilcover Trurii, which the Plaintiff would hardly own he was afraid fhould be dil- covercd. 968 De Term. S. Trin. 17 19. covered. That though this was not known to have been done before, yet the Reafon was, becaufe it might be a Wrong to the Defendant to have thefe Depoiitions publifhed ; for that the Defendant would have no Oppor- tunity of crofs-examining the WitnelTes which the Plain- tirf had examined de bene ejfe ; but when the Defendant himfelf deiired to have thele Depofitions publilhed, Vo' Icnti non fit Injuria. Lord Chancellor: It is admitted on both Sides, that what is now afked, (^7■^. the Publication of the Depoii- tions taken de bene ejfe) was never yet done; and it being without any Precedent, there ought to be very The Reafon ftroug Realous to prev^ail with the Court to do it. I'he Tng'a Wit- Reafon why the Court allows the taking of Depo- nefs de bene jitious de bene ejfe is, either from a Contempt of the Party in not anfwering, and thereby preventing the Joining of IfTue, or elfe where the Party is in Danger of loiing his WitneiTes in Cafe of Death, by Reafon of Sicknefs or Age, fo that there may be Ground to apprehend their not living to be examined in Chief; but if thefe Witneffes do live and are examined in Chief, their Depofitions de bene ejfe fhall fall to the Ground, and are as it were buried, having anfwered the whole Purpofe for which they were taken. Whether a if the Depolitions de bene ejfe in the prefent Cafe fo™Perju°r^ werc to be publillied, or any ways made Uie of againft will He on a thc Wituefs fo examined de bene ejfe, fuch Witnefs taken TL,' ought to have a Copy of the Depolitions before he is df'- examined in Chief; to the Intent that he may have due cautionary Means allowed him, to prevent his con- tradi£ling himfelf, which is always done in the like Caies ; alio many Qi-iertions might ariie, if it ffiould hap- pen that the Depolitions de bene ejfe were quite contra- di£l:ory to the Depolitions in Chief ; for I do not think it I can De Term. S. Trin. 17 19. ^dp can be Perjury at * Law, there being no IlTiie joined, as there mull be before the Depoiitlons are taken in Chief. And as to feeing thefe Depofitions inyfelf, it is true, Lord Sommers and Lord Coxvper did order Copies to be brought to them to infpeft; but that was for enabling them the better to judge whether the Plain- tift in thole Caufes, after fo long Time cLipfed fince the Commencement of them, and lo many Tranfac- tions in them, llioiild be allowed after the Plea to pro- ceed to a Hearing ; but as this Caufe has hnce proceed- ed to a Hearing, for me to read thele Depofitions de bene ejje in ray Study, if I Ihould there form any Judgment upon them, it would be ftrange that That fhould guide me, which no other Perfon is to know any Thing of. No, let all People be at Liberty to know what I found my Judgment upon ; that fo when I have given it in any Caule, others may be at Liberty to judge of me. Whereupon the Petition was difmiffed, the Court re- fufing to publilli the Depofitions taken de bene ejJe. Note; Mr. Vernon who was againft publifliing thefe Depofitions iniifted very much, that what was asked was without Precedent; tho' what was now furmifed, muft have often before happened, and nothing was fworn in the Depofitions after Iffue joined, but what was very probable, namely, That a Father who had made his Will in Favour of his younger Son, on that younger Son's drawing his Sword againft his Father, and attempting to take away his Life, fhould afterw^ards re- voke this Will which he had before made in Favour of fuch younger Son. 7 F D E * Cro. Car. 35'2. 3 Inft 167. And yet it feems as if fuch Depofi- tions taken de bene eJJe, upon a Bill to perpetuate the Teflimony of Witnelfes, where there is no IfTue joined, on die Death of the Witnefs may be read in Evidence. Carth. 265. <;"70 D E eruie S. Michaelis^ 17 19. Cafe 166. Cud verfus Rutter. At the Rolls, ciTedinPrc- | ^HE Defendant, in Confideration of two Guineas cedents iii i- paid down, did by Note under Hand agree 534""*^^ to transfer looo/. South-Sea ^toc]!i at a fixt Price at ^f^?""/? ^^^ ^^^ ^^ ^^^^^^ Weeks; the Plaintiff on the Day de- verfus Bui- manded the Stock, and offered to pay the Price ; but B^ii in E ^^^ ^'^•^ Defendant's inlifting that he would only pay the quity will Difference, and not transfer the Stock, the Plaintifl: brings f°ecific Per- ^^'^'^ ^'^^ ^^^ ^ fpecific Performance, and to have the formance of StOck afllgUcd. an Agree- ment to transfer South-Sea Stock. Obje6led, That the compelling a fpecific Execution of C>ontradl:s muif be allowed to be difcretionary in this Court, and there was not a Single Inftance or Pre- cedent, where it had been done in fuch a Cafe as this ; that the Plaintiff was put to no Inconvenience, fince the Defendant had offered, and by his Anfwer conti- nued to offer, to pay the Difference; that the Plaintiff might for asking have the fame Qiiantity of Stock any where u[0ii the Exchange. Indeed, had the A- 2 greement De Term. S. Michaelis, 1719. ^71 greement been for a Houie or Land, which raight be a Afatter of Moment and \5{q^ in that Cafe (liippoling aU Things to have been fairly tranlli<3:ed) there might be feme Rcafon why Equity jhoiild execnte futh Agree- ment ; hut in a Matter of fo iittle Confequence as the prelent Cafe, there could be no Necellity for thiij Court to interpole. Gtf/ ; The Plaintiff ought to have an Execution of the Contrail ; for the Agreement is a fair one, and in AVriring, and Part of the Money paid. Suppofe the whole Aioney had been paid, {hould not Equity have executed it ? If fo, where is the DifFerence betwixt a great Sum and a fmall one ? If the Agreement had been to transfer Stock or pay the Difference, this might have .looked like Stock-jobbing ; but the Plaintiff, as is proved in the Caufe, refuied to let the Note be fo penned, notwithftanding that the Defendant had defired it. De- creeing an Execution of fuch an Agreement, is beating down and preventing Stock-jobbing. W'herefore let the Defendant transfer loco /. South-Sea Stock accounting for the Dividends, and paying the Cofts ; and let the Plaintiff pay the Defendant Intereft for the Money from the 'I'ime that it ought to have been paid, accord- ing to the Contrail. But afterwards on an Appeal, the Lord Chancellor barker reverfed this Decree, delivering his Opinion with great Clearnefs, that a Court of Equity ought not to exe- cute any of thefe Contrafls, but to leave them to Law, where the Party is to recover Damages, and with the Money may if he pleafes buy the Qiiantity of Stock agreed to be transferred to him ; for there can be no Difference between one Man's Stock and another's. It is true, one Parcel of Land may vary from, and be more commodious, plealant, or convenient than another Parcel of Land, but i ooo /. South-Sea Stock, whether it be ^-jZ De Term. S. Micbaelis, 17 19. be A. D. C. or D.'s is the fame Thing, and in no Sort variant ; and therefore let the Plaintiff, if he has a Ri«ht, recover in Damages, with which, when received, he may buy the Stock himfelf. Cafe 167. PFInd verfus Jekyl 6^ Alhone. Lord Chan- cellor Parker. A. devifes a (^NE pofleflcd of E Term for Years devifed it to A, Term for V^ fyr Life, Remainder to B. B. in the Life-Time of forLife°Re-^ dcvifcd liis Rcm.ainder toy. S. who devifed it over; maindcr to ^^p^^^^ which the Qi-iellion now was, whether A. (the De- LiVc of B. vifee for Life) being dead, the Devifee of J. S. fhould devifes his I I Term, or whether it Ihould go to the Admi- Kcmainder. ' . •nip This is good, niilrarrix de bonis non, with the Will annexed of B.? and amounts to C.'s declaring by his Will, that his Executor fhall ftand pofTefled of the Term, in Truft for the Devifee. Fic/e Pollexf. Rep. 44. Feizy verfus Pinwell, this very Point determined 16 Car. I. by the then Lord Keeper. For the latter it was objected. That here were no Cre- ditors or Ptirchaler for a valuable Confideration con- cerned, fo as to merit the Afliftance of a Court of E- cjuity ; that in the Notion of Law, A.\ Life was of longer Continuance than any Term for Years, and the Law mulf be the fame either in the Cafe of a long or fliort Term ; and lince the firft Devifee for Life might poilibly furvive the Term, and fo the Devile over be good ior nothing;, for this Reafon B. had originally but a Poilibility. Then if nothing vefted in B. until the Death of A. who during his Life had the whole Term in him, (as the Law faid he had) it followed that B. having nothing in him till the Poflibility fell, could transfer Nothing to another, Nihil dat qui non habet ; and tliat B. the Devifee in Remainder could not affmn over this I'erm, was laid to appear from a Cafe cited in 4 Co. 66. b. Fulipood's Cafe, as alio from lo Co. 47. b. Lampett's Cafe, where it is obferved to be the Wifdom of 1 ' the De Term. S. Michaelis, i^l^. ii ] 1 T • /• 1 l^'n<'i only to the Perlonal Eltate ; and yet the Intention or the the Pcrfonai Party muft have been the fame as to both : But I take ^^T I'T '^ r r • ■ n- • purchalfJat- the Realon of this Difterence to be, that with Regard terwards to the Real Eftate bought after the making the Will, ^^^l^^\ fuppoiing that not to pafs, ftill there is one in I^aw ca- pable of taking it, (w^.) the Heir ; but as to the Per- fonal Eftate, if' the Executor, though made before the acquiring thereof, does not take it, it is uncertain who Ihall. Ihird/y, A Devife of a Chattel-Intercft differs from a cinutd- a Grant thereof, iuch Devile veiling nothing in the l"tc";it iiif- Deviiee until the Executor aflents ; f j-om whence it fol- Grant of a lows, that the Executor (a) is a Truftee for the Legatee, Ch^tei-in- vvith Reipe£l to his Legacy, and this is the only Rea- that the fon why the Legatee may bring his I Bill in Equity ,^","|,'"jej[. againit atcly by the Gra;u ; but fuch Devifee is not until the Afleiit cf the Executor. (a) Farrir^wi vcrfus Knighily. * Majicrs verfus Mofters ante 424. fed Vide Salk. 237. Bunter verfiis Cook^ where rlie'Coiirt w;is in Doiibr, whether a Chattel Real whicli the Teftator had not at the Time ot making the Will, vscald pafs thereby. ■\ As a'.fo why the Spiritual Court cannot Decree a Diitribution ot the undirpofed SurpKis. I'aU Hid. 97^ De Term. S. Michaells, 17:9. againft the Executor for bis Legacy, iiippoling it to be a Truft. Then If the Devife be good by way of Truft, fnp^ pofe the Teftator who was Deviiee in Remainder of this Term in the prefent Cafe, had declared his Execu- tor to be but a Truftee qiioai the Term for J, S. had not this been good ? Doubtleis it had, and i" is as ftrong when the Teftator does (as here) deviie this Remainder or Pofubihty to J. S. for the fame amounts to a Direflion made by the Teftator, that when fuch Remainder of the Term ftiall come in cjfe by the Death of A. then his Executor is to convey it to J. S. and as this would have been good, fo the Bequeft of the Remainder is tanta- mount, every Legacy being a Direction to the Execu- tor to deliver it over. The Oliice of tlie Executor is to purfue and perform the Teftator's Will and Direfiion ; and this is his Direflion. Or fuppofe B, the Devifee in Remainder of this I'erm, had covenanted that when the Remainder Ihould take Effe61: in PoiTefiion, he, or his Executors, would convey, this had been good, and the Covenantor, after fuch Covenant, had been but a Truftee for the Cove- nantee. Now vvhy cannot this Truft be as well declared by a Will as by a Deed ? Or if the Remjainder-man in the prefent Cafe had made J. S. his Reliduary Legatee, and J. M. his Exe- cutor in Truft, Ihould not the Refiduary Legatee have had the Benefit of this Poifibility of the Term ? Surely he ftiould, and not the Executor, who would be but a bare Truftee ; and therefore, (as has been rightly put at the Bar) if the Cafe had been, that B. the Devifee in Remainder, had by his Will given the Remainder of this Term to J. S. and made y. M. Executor quoad the 4 'I'erm, De Term. S. Michaelis, 17 19. (^77 Term, this had been plainly good ; for it is the Intent and not the Form of the Will which is to be regarded. By the fame Reafon then that if the Teftator had made J. M. his Executor, ciuocid the Term, in Truft for J. S. it had been good, even fo when the Admini- ftrator claims that this Legacy may be granted to him as Adminiftrator de bonis non, with the Will annexed of J5. he muft be a Triiftee quoad this Remainder of the 1'erm when it falls into Poll'eilion, for the Devifee ; and as a Confequence of it, I decree that the Adminiftrator de bonis non, ilfc. of B. do affign over the Term to the Devifee of J. S. to whom B. devifed it. Naldrcd verfus Gilham. ^f"" '^^- Lord Chan- cellor Parker. Atherine Naldred feifed in Fee of Lands of about ^jl^cZ"' 60 I. per Annum had a Nephew named George Nd- "^'"'"s verfus K dred (the Plaintiff) and another Nephew called Richard ^.'makfs Gilham (the Defendant.) I'he Plalntift" Naldred was a- voluntary bout three or four Years old, and Katherine the Aunt, on her Ne- by Indenture of Covenant to ftand feifed, dated the p'^ew, keep- 2 6 th or February 1707, lettled the Premiiies on her- in her Pow- felf for Life, Remainder to her Nephew Naldred in l\;;i„fj^'^ Fee, without any Power of Revocation ; but though there is no the Aunt befpoke two Parts thereof, yet fhe kept both R^^oca^ion; in her own Pofleilion. afterwards one fecreth' and by Fraud, on Behalf of the Nephew, gets an attefted Copy of tliis Settlement ; and then the Party who made the Settlement burns it, and fettles the PremilTes on another Nephew. The fir'ft Nephew's Bill to eftablifh the Copy of the firft Settlement is difmift with Cofts. Upon which the fecond Nephew claiming under his Settlement, brings a Bill to have the at- tefted Copy delivered up, and has a Decree for it ; becaufe fuch Copy had been indirectly gained. Afterwards Mrs. Naldred being minded to fettle the Premiftes oniier Nephew the Defendant Gilham, inrtead of her Nephew the PlaintiflT Naldred, and advjling with q H lome «J78 De Term. S. Michaelis, 17 19. fome Lawyer about it, was told ITie had put it out of her Power, by having fettled the Premifles abfolutely on the Plaintiff; whereupon ilie exprefled great Concern, faying (lie had been impofed upon. She afterwards burnt both thefe Parts of the Settlement by which Ihe had fettled the Premifles on the Plaintiff kaldred, and by Leafe and Releafe dated the 23d and 24th of October 1713, made a new Settlement of the Premiffes to the Ufe of herfelf for Life, Remainder to the Ufe of her Nephew the Defendant Gilham and his Heirs, and having delivered this laft Settlement into the J3efen- dant Gilham "i Hands, fhe foon afterwards died. The Plaintiff*'s Father had, in the Life of Katherine Naldred the Aunt, (who for feveral Years lodged and boarded at his Houfe) when fhe was about leaving him, and he under fome Apprehenlions that Ihe would alter the Settlement, by Stealth and without the Privity of the Aunt, got at this firft Settlement by which the Plaintiff' claimed, and having procured an attefted Copy of it put up the two Parts where they were before placed by the Aunt, which llie burnt as aforefaid. After the Aunt's Death, the Plaintiff Naldred the Infant by his Father his next Friend brought a Bill to eftabliffi this attefted Copy againft the Defendant Gilham^ infifting tliat both the Settlements were voluntary, and therefore according to the Rule in fuch Cafes, the Plain- (aj Vide ante ^jf^'g being the firft voluntary Settlement (a) ought to c"tii! er us p^g^^jj . ^^^ coming on before the Majier of the Rollsy his* Honour with great Clearnefs determined for the Plaintiff", and granted a perpetual Injunflion againft the Defendant, decreeing the Deeds to be delivered up, and likewife condemning the Defendant in Cofts. But upon an Appeal to Lord Chancellor Parker, his Lordfhip after Time taken to confider it, and feveral I Adjourn- De Term. S. Michaelis, I'JI^. ^79 Adjourntnents of the Caufe, revTrfed the Decree at the Rolls, declaring that it was plain the Aunt intended to keep this Eitate in her Power ; that llie defigned there ihoiild be a Power of Revocation in the Settlement ; and that Ihe thoimht whilll fhe had the Deed in her Curtody fhe had alio the Eftate at her Command ; all which in this Cafe appeared more evidently from the Settlement being made by her on fo tender an Infant, whofe future Conduft it was impollible for her to fore- fee, and that when Ihe was told, that by having made the Settlement abfolute, Ihe had difabled herfelf from fettling the Eftate a iecond Time, Ihe immediately ex- prefled great Surprife, and complained Ihe had been im- pofed upon ; that in Fa61: fhe appeared to have been im- pofed upon, by preparing and making the Conveyance abfolute ; which it had been unrealonable in any one to have asked of her. That taking her to have been impofed upon in the Making this Settlement an ablolute one, when it ought to have been with a Power of Revoca- tion, he did not lee Ihe did amifs in burning or de- ftroying it, as this was but doing herfelf Right, and if in her Life-time the now Plaintifl' had brought a Bill againft her, in order to have the firft Settlement fet up, there ought not to have been any Relief upon fuch a Bill. That it was manifeft the Aunt did no way intend to be bound by this Settlement, becaufe though there were two Parts of it, yet llie would not deliver either of them to the Plaintiff or his Friends, whereas fhe parted with the fecond Settlement to her Nephew the Defendant Gilham^ which fhewed her Intention to be bound thereby ; and that as nothing could be more evident than that this atteited Copy was procured clandeftinely, indireft- ly, and without her Privity or Confent, no Advantage ought to be "made of a Writing gained in fuch a Man- ner. That this attefted Copy, if any Evidence of the firft <;8o De Term. S. Micbaclis, 17 19. firft Settlement (as It feemed to the Court to be, when the Perfon who made the original had burnt it, and ftronger than the Cafe, where the Party had the Ori- ginal and would not produce it) being intended to be made Ufe of at Law, the Plaintiff did Wrong in coming here with a Title which (if any) was a legal one, at leait a Copy fo indireflly gained ought not to be aflifted or countenanced in Equity ; and fince the Defendant ftood expofed to be difturbed at Law in the Title, had been to no Purpofe put to great Charge in this Court, and fince the Mother who was Prochien Amy in the Father's Room, though fhe came late into the Caufe, yet when once made Prochien Jmy, flood in the Place of the Father who was firft fo, and liable to pay all the Cofts as he was before ; and as it v/as faid (and not denied) that flie had great Alfets from her Husband the Teftator, there- fore, in order to make the Defendant Reparation for the needlefs Trouble and Expence he bad been put to here, his Lordfiiip decreed the Bill to be difmifl with Cofts, unlefs the Plaintift's Mother and Prochien Amy fViould within three Weeks deliver up the attefted Copy of the firft Settlement, and alio give to the Defendant the Poilelfion of the Eftate within the fame Time. Afterwards the Defendant Gilham brought a Bill againft Naldred the Mother and Naldred the Son, to have this attefted Copy of the firft Deed of Settlement delivered up; and coming on to be heard the loth of February 1720, Lord Chancellor declared that the faid firft Deed of Settlement of the 26th of February 1707, ought not to prevail againft the latter of 17 13, for that though the firft Settlement was fealed and delivered, yet it was not delivered out of her Power ; but the faid Katherine Naldred kefpt both Parts thereof in her own Cuftody, that ftie might deftroy them, if ftie thought fit; and George Naldred the Father of the Infant getting a 4 Copy De Term. S. Michael: s, 17 19. ^81 CA)py oi Inch Settlement fr:^udukntly, and by a Trick, OLigliC not thereby to eftablilh it againft the latter Set- tlement ; and though regularly the foil voluntary Of two va- Settlement ought to prevail againrt the latter, yet if the 'l'"'"-^ ^^\ £rli: be gi:ined by Fraud (and the iole Evidence of thisthcfirftbe Settlement was fo) it ought not to prevail againft a fe- JlJIlf a^'inft cond Settlement, though voluntary. And iiotwith- the imcn- ftanding it was evident ICatherine Naldred the Aunt did Pamf riu^ once intend the PremiflevS Ihould go to her Nephew Nnl- ''''™"^ '^•<'' dred the Infant; yet it was never her Deli^n to put jt^'^^*"' out of her Power to alter or vacate the Settlement llie had made. AVherefore it was decreed, that the Copy of the firft Settlement which Joan Naldred the Mother confefled by her Anfwer to be in her Cuftody, lliould be brought ^ before the Mafter, to remain in his Hands till fLirtJier Order of the Court, and that the Defendant Joan the Mother lliould be examined upon Oath, as to any other Copy of the fald Deed, and if there had been any other Copy made thereof, that was alfo to be de- livered up, and the Defendant Joan to account for the Rents and Profits of the PremifTes receiv^ed by her or her late Husband, lince the Death of Katherin^ Nal- dred the Aunt, who made the Settlement, and the Tenants of the Premiftes were to attorn to the Plain- tiff Gilham, and this to be binding to the Defendant George Naldred the Infant, unlefs he lliould fhew Caule within fix Months after he came to Age; but no Cofts on either Side, unlefs the Defendant ihould put the Plaintiff Gilham to further Trouble, and then t|e Plaintiff Gilham was to apply * to the Court for his Cofts. •; 7 I His De Term. S. Micbaelis, 17 19. Cafe 169. His Grace the Duke of Qi,ieensberry ajid DoverV Cafe, {In Domo Pro- cerus ) Since the u- ' I 'HE late Qiieen Anne by Letters Patent, dated the Pk" madV ' 2 6th of Moy in the feventh Year of her Reign, an EngUfi cTcatcd James then Duke of ^eensberry (the prefent not by Vir- Duke's Father) Baron of Rippon^ Marquils of Beverley, 'nd^'oTctf' ^"^ Duke of Dover, To hold thefe Titles and DJg- Pariiament. nities to him for Life, and afterwards to his fecond Son Charles (the prefent Duke) then Earl of Sollorvay in Scotland, and the Heirs Male of his Body, Remainder to the third Son George Douglajs and the Heirs Male of his Body, Remainder to the fourth Son, ^c. in Tail Male fucceffively (the eldeft Son of the late Duke being an Ideot, and therefore pafTed by in the Patent.) In Purfuance of this Patent, a Writ ifllied to fum- mon the late Duke to Parliament, who was accordingly on the 19th of November 1708 introduced into the Houfe of Lords, where he took his Seat, and continued to fit and vote in two fucceinve Parliaments, no Ob- jeftion being made to iuch his Right at any Time du- ring his Life. The late Duke died during the Infancy of the pre- fent Duke, who coming to Age petitioned the Kin^ to caufe a Writ of Summons to be iffued to him for his coming and voting in Parliament. And on the 1 8th of December i 7 i 9. his Majefty re- ferred it to the Houie of Peers, to take the Petitioner's Claim and Right into Conlideration, and to do and de- termine thertupon what lliould be found julf and Right. I Upon De Term. S. Micbaelis, 1719. 983 Upon this the Hoiife of Peers ^ave Leax'e tliat the prefenr Duke of ^icembcny Ihoiild be heard at the Bur of the Houle by his Couiiiel. And the Difficulty was, that in the late Duke of (a) {") ^'^ }°~ Hamilton s Caie it was reiolved by the Lords, " Thata-mbris/ " no Patent of Honour granted to any Peer of Great ''"• " Britain who was a Peer of Scotland at the Time of " the Union," Ihuuld intitle him to lit in Parliament. This Reiolution was founded on the Conftrutlion of the Articles of {b) Union of the two Kingdoms of (/■) s Anna?, England and Scotland^ after which Union the Patent "^' ^' of the Dukedom of Dover was granted to the Duke of ^leensberry in Manner above mentioned. The Articles of Union aftefting this Cafe were the 4th, 2 2d and 2 ^d. ., By the fourth Article it is enabled, " That from the Time of the Union there fhali be a Communi- cation of all Rights and Privileges belonging to each Kingdom, except where it is otherwife expreily a- greed by the Articles." By the 2 2d it is agreed, " I'hat by Virtue of the " Treaty of Union, fixteen Ihall be the Number of the " Peers of Scotland to fit and vote in Parliament," and there the Method of chufing thefe lixteen Peers is pre- fcribed. By the 23d Article it is agreed, " That thefe fix- " teen Peers thus defied fhall have all the Privileges " of the Peers of Parliament of Great Britain. AUo " that all the refl of the Peers of Scotland Ihall have " ill ai 984 De Term. S. Michaelis, 1719. " all the Privileges of the Peerage of England, excepting " only that of fitting and voting in Parliament. And it was urged in Favour of the Petitioner, that in thefe Articles it was difficult to find out Words which could be thought to difable the King from granting to a Scotch Peer a Patent of Peerage of Great Britain with the Privilege of Sitting in Parliament, or which dif- abled a Scotch Peer from accepting fuch a Patent. Efpe- cially, when the Rule of Law was, (and it was a Rule without Exception) that the Prerogative of the King, of which the Law was io regardful, could not be taken away by any Aft of Parliament without plain and ex- prels Words; more efpeclally lo valuable a Part of the Prerogath^e \\d^ereby the Crown was enabled to en- courage the Merit of the Subjefts, by beftovving on them Honours and Titles. The Words of the Articles feemed fo far from im- porting any inch Dliabllity, that there was not fo much as a Negative In any of the Articles: There was Indeed what feemed to be the Reverfe of this Con- ttru6lion, the fourth Article faying, " There fhall be " a CommiUnicatlon of all Rights and Privileges be- " tween the Subjefts of either Kingdom, except where " it Is otherwife exprefly agreed by the Articles." And there was nothing expreffed to the Contrary In any of the Articles. So that the Subje6ls of each Kingdom, without any Preference, DIfadvantage or Diicouragement, were to be equally capable of the Sovereign's Favour; and furely the Scotch Peers were Subjefts as well as others ; and it was the Intention of thefe Articles to encourage the Subjefts to do their belt Service to their Sove- reign. It De Term. S. Michaclis, 1 7 19. 98^^ It was admitted that by the Treaty of Union, only fixteen were to reprefent the Peers of Scotland; but though in Virtue thereof, only lixieen Peers were to be ele^ed, yet this did not hinder, but that by Letters Patent more Peers might be created. 't>' It was fubraitted to their Lordfliip?, whether it could be intended by the above mentioned Articles of Union, that thofe Scotch Peers Ihould be in a worfe Condition than the meancil: of their fellow Subjc6ls ; nay than the meanell of their own Servants ; in a worie Con* dition than thole who are no Subje61s, but Afiei^s ; r.ux worfe than Criminals; fince by fiich Conibucuon of the Articles as would diiable Peers of Scotland from fic- ting liere by Letters Patent, all thofe Things bcibic mentioned were implied j for. It was in the Power of the King (If it was his Plea- fure io to do) to make a Servant of a Scotch Peer a Peer of Great Britain) and then it were pretty llrange that the King iliould not be able to make the Mafter fo. It was in the Power of the King, for fuch Merits as he alone was Judge of, to beftow Honours upon the meaneft of.his Subje6ls. It was in his Power to make an Alien born, fiiil a Denizen and then a Nobleman. It was the Crown's Prerogative to pardon a Criminal : And if it were the Royal Pleafure, and fuch Criminal Ihould have done Service to the Crown (of which the Crown done was to judge) inch Criminal might be made a Peer. And it feemed hailli to fay, that a Nobkn'.an of Scotland, by all the Services of his Life, could not make himfelf capable of becoming a Peer of Great Britain, and of voting in Parliament by Virtue cf a Patent ; but that if he were to commit Treafon, and to b 7 K attainted ^"^ 986 De Term. S. Michaelis, 17 19. attainted, by which he would forfeit his Scotch Peer- age, and then were to be pardoned ; from the I'inie of fiich Pardon he would be capable of being a Peer of Great Britain with the full Privilege of fitting in Parliament. But whatever Confl:ru£lions thefe Things might receive, the Principal Cafe was out of the Articles of Union, and (probably) a different Caie from that of any other Peer of Great Britain. The prefent Duke of Dover not taking this Dukedom as Heir to his Father by De- fcent, but by Virtue of a Remainder limited thereof to him as the fecond Son of his Father, the late Duke of ^leensberry. That it muft be admitted, the Patent of Duke- dom was limited in Remainder to the fecond Son, by his then Title of Earl of Solloivay ; and the pre- tended Difability againfl: his having the Privilege of fitting in this Koufe as an EngliJJj Peer, and as Duke of Dover was, that at tlie I'ime of the Uiiion he was a Scotch Peer, (tv^.) Earl of Solloway. Whether a ]sj,j^y j-|^e Honour of the Earldom of Solloway was granted to granted to him when an Infant:. And it was faid to be an Infant .^ |^^^^jg q£ \^3.\\r that in Calc of an Infant, a Grant may be . . . ^ . . waived by made to him during his Infancy, might be waived and ^.y^^g^Qf" ^'^difclaimed by him when he came of age. And the Age. known Diveriity was, that what came to an Infant by Defcent (which was the (lift of Law) I'hat he could not waive ; but whatever came to the Infant by the Gift or Grant of another, might be relinquilhed by him when of A^e. Alfo it was faid to be plain, that whatever an Ird; int did waive or refufe when of Age, it then I)ecame the fame thing as if the Grant had never been matle to 4 him. De Term. S. Michaelis, 17 19. ^87 him. Thus an Infant when of Age mi^ht refufe any Ellate given to him during his Infancy ; and the Reafon of the Law was, for that it might be more for the In- fant's Benefit to be without the Eftate or Grant, (w hich proved to be this \^ery Gale) and no Acceptance of ah Inf int fhould bind him. That for the fime Reafon if a common Perfon (antl it holds as ftrongly if the King) Ihould make a I^eafe for Years^ or grant Lands in Fee to an Infant, he, when of Age, might waive and refufe it; lince the Rent referved might be more than the Vakie, the Eftate might be more incumbred than it was worth. Now a Grant of a Peerage was within the fame Rule of Law in this and other Refpe6]s as a Grant of Land : A Dignity or Barony was inrailable w^ithin the Words [Lands and Tenements] and comprized therein, i Infl. 20. Again, a Dignity or Barony, though intailed, was comprized within the Statute of 16 H. 8. ca^. 17. by the ^^'ords [Lands, Tenements and Hereditaments ;J and therefore was, though intailed, forfeitable for Treafon ; and generally ipeaking, Dignities and Ho- nours were governed by the fame Rules of Law, as Lands, fome few Inifances only, for particular Reaions excepted. Gonfequently, as an Infant when of Age might re- fufe or waive a Grant made to him of Lands, fo might he refufe a Grant of an Honour made to him during his Infancy, and exactly for the fame Reaton ; for an Honour might be loaded with* an Incumbrance as well as Land : And in the principal Gale (as fome w^ould have it) the Scotch Peerage from the Time of the Union was in Fail clogged and loaded with a great Incumbrance, fuch an Incumbrance as was a perpetual Dilability c;SS De Term. S, Michaelis, 1719. Difability to the Peer and his liTue in all focceedlng Generations from fitting in this Houie. Wherefore it was plainly for the Benefit ci his Grace the Duke of Dover (who had two Honours granted him during his Infancy, one of which, the Scotch Peerage, was inconhftent with the Engliflj one, and thought to difable the Duke from fitting in this Houfe) to waive and refufe fuch Scotch Peerage granted him during his Infancy, and by accepting of the Dukedom of Dover, to ele6t to ferve the Sovereign in that Capacity, which feemed to take in all that was implied in the other, and more. It muft indeed be admitted that the King was inti- tled to the Service of his Subjeft in what Capacity he pleafed; but an Infant could not vote in this Houfe, during his Minority ; and now upon the Duke's firft at- taining his Age, as the Crown had ele£led that he lliould ferve as an Engliflj Peer and Duke of Dover, he was ready to do fo, not having been able to lit in this Houfe before, or when an Infant, The Counfel further obferved, it would hardly be expelled from them, that they fhould lliew a Pre- cedent where an Infant when of Age had waived an Honour granted to him during his Infancy ; it not ha- ving been ufual (unlefs in the Royal Family) for the Crown to beftow Honours upon Infants. That in the old Books there were feveral Infiances of Nobiemens refiraing and furrenderlne their Honours DO O (een made againft that of his Father ; So it was hoped the Houfe would be of the liime Opinion, as to the Son's fitting among them, as their Lordlhips had been of in the Cafe of his Father, it being upon the fame Patent. And as his Grace fuc- ceeded his Father in his Honour, fo their Lordlhips would admit his Grace to fucceed his Father in his Seat in that Houfe which was belonging to the Ho- nour. But upon the Debate of the Qiicllion, the Majority of the Peers were againll allowing the prefent Duke the Privilege of fitting in their Houle. The 99Z De Term. S. Michaelis, 17 19. The Lord Coivper was of Opinion that the King could not create a Subje£l a Peer of th'e Reahn againlt his Will ; becaufe then it might be in the Power of the King to ruin any Subje£l whole Ettate and Circum- ftances might not be fufiiclent for the Honour. The Lord Trevor contra : That the King had a Right to the Service of his Subjefls in any Station he thought proper, and inftanced in the Cafe of the Crown's having Power to compel a Subjeft to be a Sherift, and to fine him for reftifing to lerve. Alfo the Lord Coivper held that a Minor might waive, when of Age, a Peerage granted to him during jiis In- fancy ; efpecially in this Cafe, it being a Scotch Peerage, and amounting to no more than a Grant of a Difablli- ty. But The Lord Trevor obferved, that in Lord Abergaven- ny^ Cafe it was admitted the King might fine a Perfon whom his Majefty thought fit to fummon by Writ to the Houie of Peers, it being faid there, that a Perfon mi"ht chufe to fubmit to a Fine ; and if it were al- lowed the King might fine one for not accepting the Honour and not appearing upon the Writ, the King might Fine toties quoties, where there was, a Rcfiifal, and confequently might compel the SLibje£l: to accept of the Honour. And that it was not to be prefumed the King would grant a Peerage to any one to his Prejudice or Wrong, any more than that he would make an ill Ufe of frt) See Lord hls Power of pardoning; all which are Siippoiitions (a) ^«ys Argu- contrary to the Principles upon which our Conftitution mcntinthe is framed, whlcli depends upon the Honour and Ju- Cat'?^^ ^^^^^ ^^ '■■''■'^ Crown. 127. Iff this Cafe I was of Coimfel with the Duke of Qiieens- berry, ilfc. Farpkes De Term. S. Michaclis, 17 19. ^9^ Fa%vkcs verfus Pratt. cafei7o. Lm-d Chan- (elior Parker. ""HE Plaintiff was a Bankrupt, and brought a Bill They only againll his iuppofed Debror the Defendant ?ratt, da'iit?to a' to compel him to Account. Bill, againft whom Pro- ctfj is prayed. T The Defendant pleaded that the Plaintiflf being a Bankrupt, and found l"o by the Commillioners, his Kt- fe(G:s were ailigned to A. and B. for the Benefit of the Creditors, and that the laid Aflignees ought to be made Parties. Upon this the Plaintiff having an Order for that Purpofe, amended his Bill, and in the Body thereof charged the Aflignees in a proper Manner ; but the Prayer of Procefs was (as before) only againft the Defendant Pratt. After which the Defendant put in the fime Plea to the Bill, (w;^.) that the Aflignees ought to be made Defendants. Lord Chancellor : The Plaintiff may complain and tell Stories of whom he pleafes ; but they only are Defen- dants againft whom Procefs is prayed, and no Procefs being prayed againft the Afl[ignees, they ftill are not Defendants, conlequently the Plea is good. But the Solicitor (who was in Court) pretending Upon the that the Record was right, which appeared afterwards or So'ii'c?- ^ not to be fo, and the Plaintiff being a poor Man and in "^'^ ^pp*^*""' Prifon, and this feeming to be the grofs Negle6lof the Guilty of a Solicitor, the Plea was allowed, and the Bill thereupon fj^^'^' JJJj^" amended; but the Cofts were ordered to be paid by CoJrt will .1 c \- -^ order him to the Solicitor. paythcCofts. 7 M Botvers ^>«- aTo^deTto' dant made the like Motion. examine a Plaintiff" Jc bene ejp, faving juft Exceptions, the' they wilf make fuch Order to examine a Defendant ; but the Defendant ought to have demurred to fuch immaterial Plaintiff. If a Corporation would make ufe of one of their own Members as a Witnefi, tl.ey mufl disfrancliife him. Lord Chancellor : If a Corporation will examine any of their Members as Witneffes, they muft (and fo is the Courfe) disfranchiie them, and then they may make uie of ^^6 De Term. S. Michaelis, 17 19. of their Teftlmony ; but upon his Lordfhip's confultiiig with the Regiiter, it appeared to be a Rule, that no Cc- Plaintiff" ought to be examined as a Witneis on Behalf of the Plaintiff; there being this apparent Exception againft him, (f/^.j his being liable to anfwer Cofts, If the Event of the Caufe fliould prove againft him. But by Lord Chancellor, there Is more Reafon that the Defendant ihould be at Liberty to examine one of the Plaintiffs in this Caul'e. Fir ft, Becaufe the Defendant cannot disfranchife any of the Corporation, as the Plain- tiff may. Secondly, If the Plaintiff fwears any Thing againft himfelf, it is good Evidence againft him, though not for him. Neverthelefs the Pra6life is otherwife ; and this feems to be in Imitation of the Common Law, where the Defendant cannot examine the Flaintift"; and though Equity goes fo far as to give either Side leave to exa- mine a Defendant de bene ejfe, yet this Rule has not been extended to a Plaintiff", who if he be an imma- terial Plaintiff, the Defendant may demur. Note; The Method of disfranchifing is by an In- formation in nature of a ^w Warranto againft the Mem- ber, who confeffes the Information, on which the Plain- tiff obtains Judgment to disfranchile. DE ^97 D E Term. S. Hillarii, 1719- All Souls College verfus Coddrington, cafe 173. £/ e contra. AtthtMh. Colonel Coddrington devifed to All Souls College In Ox- a. devifes his ford in theie Words, I devife my Library of Books !:'^?"' °^ norp in the Cuflody of Mri Cari'well, to All Souls College in the Cu- /» Oxford: and in the lame Will he devifed to the Lnd ^^"'^yfj^- CoJlege 4000 /. more to augment their Library. At- and after- ter which the Teftator boueht feveral Books of Value ^^""''^ ^'">,* p _ more books which were placed in the faid Library. which he places in the fame Library, and gives 4000 /. more to increafe their Library j the after-bought Books (hall pafs. Obje£led, That the Books purchafed afterwards fhould not pafs ; becaufe the Gift is of his Library of Books now in the Cuftody of Carfrvell^ which Word [now] muft be relative to tlie Time of making the Will, otherwiie muft be rejected; but it was faid to be againft an ettabliflied Rule in the Conftru£lion of Wills, to re- je£l, any Word that can be made to take Effe6l; it was admitted that without the Word [now] the Will, 7 N as <;98 De Term. S. Hill. 17 19. as to the perfonal Eftate, would relate to the Time of the Death of the Teftator ; faus where that Word v^^as inferted; that if I Ihould devife all the Leafes which I now have, or all the Horfes which I now have in my Stable, and afterwards purchafe more of each, thei'e new Leafes or Horfes would not pafs. Mafier of the Rolls: Where I devife all the Corn now in my Barn, if that Corn be afterwards fpent, and {a) Vide an- new Com put in, fuch new Corn will not {a) pafs: But S.^^omr;. if I devife all my Flock of Sheep non> on fuch a Hill, or in fuch a Pafture ; in that Cafe, becaufe Sheep are in their Nature fluftuating, fome mufi: die, fome be killed, and fome Lambs be produced which will afterwards breed, and it being the Cafe of a colle6live Body, the Sheep produced afterwards ijhall pafs ; and this is within ^MahTwtt ^^^ Reafon of a Devife of a Perfonal Eftate, which, fus Majiers, bccauie always flu6luating, fhall therefore relate to the and //^.w rpjj^^g ^^ j.j^g" Teftator's Death ; befides the Will, as to verlus Jekyll , ri-ii' n ■> tf Mow, Pertonals, does not fpeak till after the Teitator s Death. It is natural to think that the Teftator did not in the Principal Cafe intend his Executor Ihould be garbling the Library after his Death, by picking out the Books bought lince the making the Will, which appears more plainly from the fubfequent Devife of 4000 /. to the College to buy Books, fo that his Delign manifeftly Was to increafe rather than diminiflj. As to the Cafes that have been put of a Devife of all the Leafes which I now have, or of all the Horfes now in my Stable, and afterwards I purchafe more of each, the new Leafes or Horfes will not pafs; the Reafon is becaufe thefe are particular Chattels, and not Part of a tolle6live Body as a Flock of Sheep, or Library of Books. Indeed a Flock of Sheep differs fomewhat from a Li- brary of Books J for the former muft of Neceflity I ' fluduate De Term. S. Hill. 17 19. 999 fluftuate as above ; but there is no Necellity that Books Ihould be changed. 'to" However in this Cafe it was decreed that the Books afterwards bought by the Teftator, and put into this Library, fliould pais to the College by tlie Will ; the Court being of Opinion that the Word Now did not relate to the Books which were in the Library at the I'ime of making the Will, but, on ConlbucSlion of the whole Sentence, denoted where the faid Library was, and might be intended to ditlinguilh it from any other Library of the 1 ettator's. Attorney General YCitusJVjburgh ^ al\ cafe 174. Lord Chan- crllir Parker. /^NE charges all his Lands in Chigwell in E^ex, and i„ a Suit on ^-^ in Endfield in Middle/ex with 20 /. per Annum to the H'"'^-^'/ "^ =* Poor of Enfield. And an Information being brought to th^Arrcars make diverfe Lands in EndHeld liable to the Charity, ^'^i "" ^*^"'' 1 • 1 /»f • »i T J • 1 • (-1 1 Charge, not leaving out the Chigwell Lands, it was objected, that neceflary to the ChipTpell Lands ought to contribute, and the Owners '^^^^ "*" ^^^ . . . y . ^ cr-tenants thereof be made Parties. ot the Land out of which the Rent iflues, Parties. Lord Chancellor :. This is in Nature of a Plea in A- batement, and unlefs it be infifted on in the Anfwer, and the particular Owners Ihewn, I will put the Owners of the Endfield Lands to take the labouring Oar on themfelves to find out the Chigrpell Lands, and bring their Bill for that Purpole if they think fit; for at this Diftance of Time, (the charitable Gift being in 1 55 I.) the Lands may be loft, or not diftinguilliablc, or purchaied without Notice ; and if the Charity has loft the Chigwell Lands, it would be ftrange to make Uie of this as a Reafon, why it Ihould lofe the Endfield Lands likewile. Alfo 6oo De Term. S. Hill. 17 19. ^""coorE ^^^^ P^^^ ^^ ^^^^^ Charity being given for the Cldath-^ vidence to jna of lix poor Perfons of the Parilli of Endjield, Lord proveaCha-^,"^ y^ would Hot fuffcr anv of the Inhabitants of ritv Siven to '-w"<-t*(i/f • rr \ r ^ • n i the Pari(h. Endfcld to be Witneiles, becaule they were intereitedi fTodger?'^ as being eafed in the Poor Rates j and though it was and one that i^naed, that they might be Lodgers there, or Perfons trthe"poor.^ not contributing to the Rate, and that it was incumbent Bat to be in- Q^^ thofe who took the Exception, to make out the tended a Houfe-keep- Contrary; er, and to pay, i^c. unlcfs the Contrary be made appear. Tamen per Cur : The Witnefs being defcribed to be of the Parilli of Endfield, Yeoman, muft be intended an Houfe-keeper, and one liable to pay PariHi Rates, un- lefs the contrary be made to appear. Wherefore it was fent to the Mafter to inquire whe- ther the Lands were liable to the Charity. Cilc 175. Blackhorn verfus Hewer Edgley, & e- Lord Chan- COUtra. celhr Parker. "R Hewer late of Clapbara, being a fingle Man, and having a vaft Real and Perfonal Eftate, and a near Relation, Anne the Wife of Samuel Edgley, for whom and whofe Iffue he intended the Bulk of his Eftate; by Will, dated the gth of Septemher 171^. after having declared his Intention that his Name and Family fhould be continued by fome of the Children of his Coufin Ame Edgley^ dire£ls that his Manner of Houfe-keeping at his Dwelling-Houfe at Clapham lliould be continued tor one Year after his Death, as alfo his Servants at the old Salary, and that 1200 /. per Annum Itiould be allowed his Coufin Anne Edgley for that Purpofej that after the Expiration of that Year his Coufin Anne z Edgley De Term. S. Hill. 17 19. 601 Edgley fhould continue to live at his Houfe at Clapham, and that her Son Hettrer Edgley fhould cohabit \\'ith her there, in the fame Manner as he then did with the Tellator ; that the faid Anne Edgley fhould be at all the Charge of Houfe-keeping, Servants Wages and Coach-Horfes to the Number that he maintained ; and to enable her f(j to do, he direfted that 1200 /. per Annum fhould b.- paid to her by quarterly Payments for her Life ; and that in Cafe her Son Hewer Edgley fhould marry, and his Mother the faid Anne Edgley Ihould think fit to live from him, and to quit the Houfe and Furniture, then fhe to have 250/. per Annum for Life; and he de- vifed all his Freehold Eitate, and alio the Refidue of his Perfonal Eftate to 1 ruftees, their Heirs, Executors and Adminiffrators, in Trult to convey all his Freehold Eftate to the faid Heaver Edgley for Life, without Wafte, Remainder to Truftees during his Life, to pre- ferve contingent Remainders, Remainder to his firft-, iffc. Son in Tail Male, Remainder to his Daughters in Tail General as Tenants in Common, with Power to the laid Hewer Edgley to make a Jointure of any Part not exceeding half the PremifTes: And if Herver Edzlev fhould die without lilue, then he deviled that the Pre- mifles fliould be fettled in Fourths, (w^.) one Fourth to his Coulin John Blackborn in Fee, another Fourth to his Coufin Abraham Blackborn in Fee, another Fourth to his Coufin Anne Jackfon in Fee, and the remaining Fourth to his Coufin Sufanna Edgley^ youngeil; Daughter of the faid Anne Edgley^ in Fee. And in Cafe rdl or any of the faid four Remainder-Perfons fhould be dead at the Time, when by Virtue of the faid Settlement his Eftate was to devolve upon them, then the fourth Part, to which the Perfon fo dead fiiould have been intitlcd to, if living, fhould be conveyed to the relpedlive Heirs of the Perfon fo dead ; and devifed the Refidue of his Perfonal Eftate (lubjefl: to the aforementioned Legacies) to be laid out in Land and fettled in the fame Planner 7 O as 6qz De Term. S. Hill. 1719. as he had before devlfed his Real Eftate, and made his Triiftees Executors, and died. I' he Teftator was feifed in Fee of fome little Land by him always imployed for the producing Hay and Corn which was conitantly fpent in the Houte, and the Land was plowed with tlie Coach-Horfes which the Teftator kept. The Kinfman Heiver Edgley married the Daughter of Sir Simeon Stuan, and he and his Wife were not in- clined to live with the Mother Mrs. Anne Edgley at the Houfe at Clapham ; Hen^er Edgley appointed a Jointure to his Wife, exceeding a Moiety of the PremifTes, and Su- fanna Edgley, one of the four Devifees in Remainder, died without IlTue unmarried. Samuel Edgley the Father of Hewer, prepared a Bond for Hewer Edgley to lign for the Payment of 120/. per Annum to the Father for Life, which the Son for fome Time declined to execute, faying it was more reafon- able that the Father Ihould depend upon his Honour: Upon which the Father left the Bond with him, de- claring if he would not iign it, he might let it alone. But afterwards Hewer Edgley the Son, in the Abfence of the Father, juft before he went to travel, did fign it, and directed that it fhould be delivered to his Father. Li this Ca(e the following Points were debated, and refolv^d by the Lord Chancellor. Firfl, It was objected, that though the Houfe at Clapham palled to the Mother for her Life if llie would live there, yet only the Houfe and Curtelage would pafs, and not the Land imployed for the producing Ha^ and Corn, ^c. and the rather, becaufe all his I Lands De Term. S. Hi//. 17 19. 603 CVI ou Lands and Freehold El^ate were devlfed elfewhere, to Truftees for the Courin Hem^er Edgley for Life, iS^c. Sed per Cur : By the fame Reafon it might be objeiled that the Houfe at Ckplhtm is devifed away, which however is not pretended. It is true, that by ^^'^^ J l^u Grant or Devife of an Houfe with the Appurtenances^ cumpeninen- only the Garden and Orchard will pafs with the Houfe ; 'G^rd^Jind but the Devife of the Houfe rvith the Lands appertaining. Orchard win will pafs the Land in Qiieftion. Now the Intention of butbyaDe- the 1 eftator was, that after his Death, durincr the Life )'f^ f =•", of his Kinl woman Anne Edgley, every Thing Ihould the Land ap- be carried on and tranfafted as it was in his Life-Time, ['|;,')clo'"the and this to fuch a Nicety, as that the fame Number of Land ufuaiiy Servants and even of Coach-Hories was to be imployed, °hcr'iiaue to Ji. lor juuc, ana aucr uis i^ciiui w iiiiouc jfl^e tf^^,, IfLue, then to B. this will give an Eifate-Tail to A. to ^^ tho' according to Sundays Caie, 9 Co. 127. /». ^' But here exprefs e- Sons, and after to his Daughters, the following Words the fubfe- f/f Hewer Edgley fljould die without Ijfuel mull be in- M'^;;"t'^^^°rJ=* . , Till- • / \ ■ rf "' ^"""'^ "• tended, it he (nould die without (/') liiih Illue. And into an E- as to what had been urged, that unlets thefe Words were [I^t'',y1,ere to create an Elfate-l all in Hewer Edgley, his Sons l-ands arc Ti f ^ I dcvifcd to //. 7 1 ^^"Rll- for Life, Re- mainder to Truftc-cs, isfc. Remainder to his firft, ts\-. Son in Tail Male, isfc. and if J. dres /^thout Ilfue, tlicn, ^c. This will not give an Eftate-Tail to .-/. but the Words [without ' iirue] muft be intended without fuch IfTue. [i>) FiJi the Cafe of Hutnberjim verfus Hum!).'>- Jion ante 332. '* S;l f^(-^re. For in SurJaf% Cafe diere is no exprefs Eftate Tor Lite given 10 ;hc Erll Dcviiee. 6o6 De Term. S. Hill. 1719- Daughters could not take ; it did not appear the Tefta* tor intended Herper Edgley\ Sons Daughters iliould take, for he might think that on Hevper Edgley% dying with- out Iffue Male, his Name and Family would be deter- mined, for which Reafon he might limit it over to the Daughters of Better Edgley himfelf ; belides, the Son of Herver Edgley would be Tenant in Tail, and when of Age might, by docking the Intail, give the Premiffes to his Daughters. One devifes Fifthly, Obje^lcd, that on the Death of Sufanna Edg- E?btrto° ley the Devifee of one Fourth of the Premilles in Re- Truftecsand niainder, in Cafe Hetper Edgley lliould die without Ifllie, inTruft"o her fourth Part was not to defcend to her elder Brother convey the ^^^^ j^^j^ ^^ L^^y Hevpc}', but to bs fubie(9: to an exe- Fremilles to t^t riT»r iJii-r* i his Son for cutory Devile to luch Perlon as would be Heir at the Lite, Re- pej^t^ q{ Hexvcr Edfley without fuch Ifllie as aforefaid, inainder to n • • his firfi, ^c. and not to veft in the mean Time. Son in Tail Male fucccffively. Remainder to his four Daughters, to each one Fourth in Fee ; and in Cafe any of his four Daughters die without Iflue, the Truftees to convey fuch fourth Part in Fee, to the refpeftive Heirs of the Perfon fo dying; one of the Daughters dies without Iffue, her Fourth in Equity belongs to her Brother, as her Heir. Cur : This Remainder in Fee of a fourth Part does veft in Herper Edgley as Heir of his deceafed Sifter Sufan- na ; for Ihe having a Devife of the fourth Part to her in Fee, the Words directing a Conveyance to be made in Ca(e of her Death to her Heir, are no more than what would have been otherwife implied, is^ exprejfio eor qu^ tacite infimt nihil operatur. Sixthly, Neither is the Furniture of the Houfe at Clapham to be fold, while Mrs. Anne Edgley ftays there ; for it being faid by the Will, that if ftie thinks fit on the Marriage of Uemer Edgley to quit the Houfe and Goods, this fiiews that until then ilie was to enjoy them. But the Words are not ftrong enough to carry the Goods as Heir-I.ooms with the Houfe after Mrs. 2 Anm De Term. S. Hill. 17 19. 607 'Mne Edgley ftiould quit it or die ; then they fliall be fubjea to the Trufts of the Will. Seventhly, As to the Son's Bond to pay the i 2 o /. a Son in per Annum to his Father ; the Words laid by the Father c'Jcumftan* [that if the Son would not lign it he might let it alone] c<.-s, gives his might be fpoken in fuch a Manner as to amount to a BoLrjpay Threatning, and with Delign to intimidate the Son; ''•'" '-o^- but it might alfo be otherwile ; and the Son having his"'Life; iT faid that this oupht to be left to his Honour, the Fa- ''°"'= '/^'='y . r 1 • r 1 J • r i • i '^"" without ther leems to have acquielced under it ; atcer which Coercion, the Son as bound in Honour, without the Privity of his g''°'^' ^';^ 1 • 1 • , r 1 1 i-> 1 11 ^"^^ ^Vords Father, and in his Ablence executed the l^ond, and di- or Ciicum- re£led it to be delivered to his Father; fo that for ought ^^''?' ""''" , . f^ . ^ i"jt be con- appears it was his free Act, and what he thought him- itrucd a Co- felf obliged in Honour to do; and therefore, without any '''^"^'^' Proof to impeach it, ftiould not be let alide in Equity. Loyd verfus Read. ^'^' '76. *^ Lord Chan- cel/or Parker. A Grandmother put i oo /. into the Exchequer upon (") 5 ^ 6 the {a) Act which gives 1 4 /. per Cent. Annuities for a,p. 20. Lives, and her Grandchild being made Nominee, the 9'^'''"^'"°' ■, , tliCr buvs nn Father ot the Grandchild gave a Bond to the Grand- Annuity in mother to repay her this 100/. in Cafe the Child .'.'^(■^r mould die in the Life of the Grandmother. 100/. in the Grand- child's Name. Child's Father givej the GranJmothcr a Bond to repay the loO /. if the Child dies before the Grandmother, who receives the Income and keeps the Talley, the Grand"- child making no Claim : '['his no Trufl: for the Grandchild. The Talley was kept, and the Income of this Annuity received by the Grandmother during her Lil'e, and dil- poied of by her Will, from this to another Grand- hild. t Decreed 6o8 De Term. S. Hill. 1715?. Decreed by Lord Chancellor, That the Grandmother's receiving the Income of this Annuity during her Life, and keeping the Talley, and no Claim having ever been made by the Grandchild, Ihewed the Grandchild was but a Truftee for the Grandmother, and if this was at all a Truft, it muft be always tf ab origine fo, that the Child's Father giving the Bond, and the Grand- mother's accepting it, tended to make this ftill more raanifeft. Then there being no Mention made of the Trull in the Bond, was an Inducement to think, that had it been mentioned therein, the Grandmother would not have accepted it. . - - The Court thought that what prevailed with the Father to give fuch Bond, was the Chance of the Grandmother's giving the Annuity to the Grandchild, or at leaft not giving itiirorahimj and that probably, if the Grand- mother had not given it from him, this would have been taken as a conditional Gift to the Grandchild after the Grandmother's Death ; and that the Cafe might have been different, if the Grandmother, or Parent had made fuch a Purchafe in a Grandchild's or Child's Name, (rt) Vide an- and ti-ikcn the Profits during the Infancy [a) only of teLampiugh j-j-^g Child, for that would have been no Evidence of a verfus £«/«- ii r 1 T-i Tit-* ill fiugh,iii. Trult lor the Parent. Socus it the Parent had taken the Profits after the Child's coraine of Aee, and when of Diicretlon to claim his Right. (b) l^rJ It w:is moreover obferved that (/») Lord Nottingham Gnv veifus j.^,^jj. ^ Diftinclion where a Parent made a Purchaie HiiKsoCar. in the Name of a Child already advanced, and thc^clre'^of thereby as it were emancipated : For that would have Elliot vcrfus been a Trull: for the Father ; but if fuch Child were Chii^n! Cafes iHiadvanced before, it ought (according to him) to be 23'- looked upon only as an Advancement of one for whom he was under an Obligation of Duty and Confcience to provide. 2 Burnet De Term. S. Hill. 17 19. 60^ Burnet verfus Theobald. cafei;;. Lord Chan- cellor Parker. TF after a Decree pronounced, either Side enters a Ca- if after a ■* veat, this flops the Signing and Inrolling ibr twenty- ^av^t he ei"ht Days, beinji a Lunar Month : but a Decree bcins <^"fcd to i]gned and inrolled after the twenty-eight Days, from ing and in-' the Caveat were expired, and within twenty-eight Days roiling, it after the Decree was prefentcd to be inrolled, and the signin^^zs Regularity of the Inrolmcnt being referred to the Ma- ^"j^'^' """^ fter Mr. Holford, he certified the Courfe to be, tliat pron jronoun- where a Caveat is entred, the Partv entrlng it has twen- '^'"S '';^ ^'^- ty-eight Days alter the Decree prelentcd. But Lord Days from Chancellor thought this an unreafonable Delay, there be- Jn^^tfo'"' ing no Rule or Order of Court for that Purpofe. Loni Chan- cellor to be inrolled, and Notice given by Lord Chancellor's Secretary to the Clerk of the pther Side. On the other Side it was faid that the End of entrins fuch Caveat was to give the Party a reafonable I'lme to conlider of the Decree, whether he lliould fubmit to it, or rehear the Caule, which P^nd would nor be anfwered, unlefs the Party had a realony.ble Time after the Decree wms drawn up and pafled ; and the Allow- ance of the twenty-eight Days after the Entering of the Caveat, was immaterial, fince thele are commonly fpent after the Hearing the Caule, and before the Decree is drawn up and pafild. Alfo the Ma/ler certified that the twenty-eight Days upon the Caveat, ihould commence only from the I'ime that the Lord Chancellor's Secretary gave Notice to the Clerk of the other Side, of the Decree being prelented in order to be ligned, which was likewiie thought by the Court to be ftrange j Et adjonrn. 7 Q. But 6io De Term. S, Hill. 17 19. But afcerwards this Matter being mentioned again, and a Certificate of much the greater Number of Clerks in the Office being produced, fhewing the con- ftant Courfe and Pra£llfe of the Office to be, that the twenty-eight Days iTiould be accounted from the Time of the Decree's being prefented to the Great Seal to be iigned in Order to it's Inrolment, and Notice thereof given by the Secretary to the Clerk of the other Side : Lord Chancellor faid thisfeemed to him to be the conftant Pradife, and the Mafter's Report being lo, his Lord- Ihip would not over-rule it on a Motion, but on the Contrary held the Report to be right, and according to the Ufage and Pra£lil'e in that Cafe. t>" c^^^^ '78. Ex parte James. Lord Chan- cellor Parker. Creditor by A Was bouEid in a Bond to B. payable on May-Day DayofVay- fhen ncxt, A. in the mean Time becoming a ment cannot Bankrupt, B. before May-Day takes out a Commiilion Ci.mmiffion of Bankruptcy againfi: him, and the Commlilioners ha- of Bank- ^,jj-,g fummoned his Wife, would have examined her ruptcr, nor o _ i , , r j J i • -r» i ought any touching the Time and Manner or A. s becoming a Bank- ProceeJing j-^j^f jj^- ^]^g rcfulincr to make any fuch Difcovery, to be Had up- i' _ D r? j- on fuch ' they committed her. And lome of A. s Creditors who Commiffion. ^.^j-j^g jj-, ^j-,der the Commiffion, and paid their Contri- bution Money, imprifoned A. for the Debt for which they fought Relief by the Commiffion ; and upon the Petition of A. and his Wife diiclofing theie Matters, and hearing Counfel on both Sides, It was refolved by Lord Chancellor^ Firfl, That if a Creditor by Bond before the Day of Payment fues out a Commiffion of Bankruptcy againfi the Obligor in the Bond, it is irregular, and fuch an Irregularity, for wliich the Commiilion ought to be fuperieded ; for 2- though De Term. S. Hill. 17 19. 611 though it be Bebitum in pr>•/■ himbedone, to continue in Prilon till ihe mould make this Dil- the whole covery, the Commitment is illegal, and ihe ought to be ^^hh"' dll- naught. > (fl) Vide ciutcmxhc Statute of 7 Geo. i. cap. 31. y 5 Geo 2. and how thdc Statutes have altered the Law in due Point. {h) i Irilt. 6. b. 2 Vern. j^. (0 5 G'eo. i. cap. 24. 6 11 De Term. S. Hill. 17 19. difcharged ; and accordingly it was ordered flie lliould be diicharged. Creditors of Thirdly^ It was refolved that fuch of the Bank- who comr' rnpt's Creditors, as came in under the Commiffion by into the which all the Bankrupt's Eftate both Real and Perfonal fhaii not im- (by Mcans whereof he lliould pay his Debts) was feifed, prison the fhould not be allowed to imprilon the Bankrupt for mnkruptror . ir mp i r • ^ not paying not paying thole Debts. Wherefore the Court laid the Debt. j.j^gy would Order the Bankrupt to be difcharged out of Cuilody, as to any Aftion brought by thole who had come into the Commiffion of Bankruptcy, and had fought Relief thereby. And though it was objeiled by Mr. Mead, that the Bankrupt ought not to be dii- charged until he had perfefted his Examination, The Court held the Contrary ; for it did not appear that the Bankrupt was in Contempt or had refuled to be examined ; if he had, yet when the Commiffion of Bankruptcy was irregularly fued out, there ought not to be any Proceedings upon it by way of examining the Bankrupt, or otherwile. Cafe 179. Grant bam ^ af Comm'iffiojiers and Trnjtees of the forfeited Eflates ver- fus Alexander Gordon. (In Domo Procerum ) Major Gc- RY an A£1: of Parliament made in the firft Year of Svir"""" ^"^'"S ^^^^X^j ^o^ ^^^^ Attainder of Earl Marifchal Laird of y/«-'^ dl\ it was cnaded (/W af) " That if Major Gene- '^otltcnd^ " ^^^ Thomas^ Gordon, Laird of Auchmtoule, Ihould not to attaint the render himielf before fuch a Day, he fhould be at- Se'^eStaintedofHighTreafon. lexander, 2 MajOr though the •' reft of the Defcriptions agree. De Term. S. Hill. 1119. 613 Major General Gordons Chrirtian Name was Alexander not Thomas., and he did not render himfelf within the 1'lme. The Commifiioners of the forfeited Eftates in Scot- land, adjudged that the Rei'pondent Alexander Gordon was not attainted ; wliereupon the Commiflioners for for- feited Ertates in England appealed to the Hoiife of Lords. It was Infifted for the Forfeiture, that here was a full Defcriprion without a ChrilHan Name, {vi^) I^lajor General Gordon, Laird of Aiichintoiile, which was a fufficient Certainty ; for every one muft know who was meant by it ; and if the Defcription without the Chrift Ian Name was iufficient, then utile per inutile non vitiatttr. That as in i Infi. 3. ^. a Grant made to John Earl of Pembroke, when his Name is William, or to John Bifhop of Rochejler, when his Name is William, is good, be- caufe there can be but one of that Dignity, but one ^arl of Pembroke, and but one Bifhop of Rochejler, (wherefore the Additio'n of a falfe Chriftian Name would not hurt it;) fo in the Principal Cafe there being but one Major General Gordon, Laird of Auchintoule, this Defcription could anfwer no Perfon whatioever but the Refpondent. Alio that there was fufficient Certainty according to the Courfe of Parliament ; and therefore that might be good by way of Impeachment, which would not be fo in a Proceeding by Inditliment, lor which Purpofe Dr. (a) Sachevereh Cafe was cited. 1^!^^'''*!, , '^ ' Trials, Vol. 4. 966. 7 R For 6 14 I^^ Term. S, Hill. 17 19. For the Refpondent it was argued, that there ought to be a legal Certainty not only in Indiftments for Capi- tal, but for all Criminal Offences, and much more would the Law require Certainty in the Cale of ah Indiflment for an Offence, whereby a Man's Blood was to be corrupted, his Eftate forfeited, and his Life taken away in the moll: formidable Manner. That though it might be true (which however was not admitted) that an Attainder would be good by the Defcription of Major General Gordon^ Laird ot Auchin- toule, and that there might be luch a Man ; yet adding a Wrong Chriitian Name was much worle than if there had been no Chriilian Name at all ; for there might be luch a Man as Major General Gordon, Laird of Ju- ebintmlc, and yet no luch Man as Major General Tho- mas Gordon^ Laird of Auchintoule. That the Cafe cited from i Infl. 3. a. might be al- lowed to be Law, and yet that no ways like the Cafe now under Debate ; becaufe in a Grant* the Law takes it as flrongly as may be againft the Grantor, ut Res ma- gis vnleat, it being prefumed that fome valuable Con- lideration was given for the Grant, and it would be very hard, that the Purchafer, by Reafon of a Miflake of his Name, lliould lofe his Purchafe; wherefore it is fuflicient to make the Grant good, if it can appear who was intended to take, becaufe the Grant of the Party founded upon the Contra6l of the Party, fliall take Effe^l: according to his Intent, and Purchales may be good without either Chriflian or Surname, as the eldeft Son or youngefl Son of J. S. {i Infl. ubifltpray) but in Cafe of an Indiftment the Conlfrudlion is not to be accord- ing to the Intent of the Indiftment, but muft be ll:ri6l- ly certain j and if an Indi61:ment is to be fo, much more muft an Attainder which binds for ever, both as to Life and Eltate ; and an Indidment of one by the De- I fcription De Term. S. Hill. 17 19. 619 fcrlptlon only of the eldeft or youngeft Son of J. S. would not be "ood. tr That the Names of Alexander and Thomas were two as difterent Names as well could be, and therefore it was impolfible that Alexander Gordon could be intended to be Thomas Gordon. , That fuppofing Mnjor General Alexander Gordon were attainted by his right Name, and afterwards pardoned by the wrong Name of Thomas Gordon, this Pardon would not be good, becaufe it could not be intended a Pardon of the lame Perlon that was attainted. And it would be very hard that fuch an Attainder as \\';;s in the principal Cafe, Ihould, notwithibnding the Ah'llake of the Name, be good to take arvay a Alan's Life, and yet that a Pardon, by Reafon of the fame Aliitake of the Name, iliould not be good to fave the Alan's Life; [which Reafon had great Weight with the Lords.] That if this Attainder of Alexander by the Namfe of Thomas were to be good, an innocent Man might be executed inftead of the Guilty j and it would be fufficient to fay that Alexander was the A/Ian intended, though Thomas was the Man attainted. But as Licer- tainty was the Mother of Confufion, fo it was the Happinefs and Excellency of our Law to delight {a) in, ,94. i"/tiie and efpecially in criminal Profecutions to require Cer- 9^'*^ ?^„ tainty. fus ReynMs. That if Alexander Gordon .were outlawed by the Name of Thomas Gordon, the Law in that Cafe would allow him no Redrels by Writ of Error, becaute he would not be hurt, nor any ways concerned in the Outlawry of one who was t'uppofcd to be another Per- lon: And yet where the Law laid the Perlon was not hurt 6 1(5 De Term, S. Hill. 17 19. hurt or any ways concerned, the Attempt now was to hang that Man, and to take away all his Eflate. That the Obje£Hon was the ftronger in the principal Cafe, for that the not rendering himfelf (by the Time preicribed by the A61) made the Treafon; and here Alexander might well think himielf not the Peri on In- tended and required to furrender, when the Adl required Thomas to furrender; confequently it would be hard, that his not doing of that \\diich he had at lealf \Try probable Reafon to think not incumbent upon him to do, fhonld render him guilty of the higheit Crime known in our Law, High Treafon. And as to what was faid, that this being an Attainder by Parliament differed from an Outlawry, and that the Courfe of Parliament made it good ; It was an- fwered that Impeachments in Parliament differed from Indi6lments, and might be juftified by the Law and Courfe of Parliament j but that there was no other Me- thod of conftruing an A£1 of Parliament (as this was) but according to the Rules of Law. Laftly, that if the Refpondent Alexander Gordon thus intended (as it was faid) to be attainted by the Name of Thomas^ had been brought to the King's Bench Bar, that Court would not, nor could have awarded Execution againft Alexander Gordon on the Attainder of Thomas, but on Alexander's il^.ewing this to the Court, they muft have diicharged him. Upon which the Covinfel being withdrawn, the Lords adjourned the Debate till the next Day, in Order to have the Opinion of all the Judges of England, when the Lord Chief Julllce Pratt delivered the Opinion of them all, "" That this Attainder of " Major General Thomas Gordon, Laird of Auchintoiile, I . " did De Term. S. Hill. 17 19. (J17 « did not attaint the Refpondent, whole Name was Alex- ander ', and that if Alexander Gordon upon fuch an " Attainder had been brought to the King's Bench " Bar, and had made this Matter appear, that Court " could not have awarded Execution againil him." Up- on which the l^cree of the Commiflioners for forfeited Eftates in Scotland was affirmed. Memorandum^ In this Cafe it was admitted by theCoun- ^" Scotland fel on the other Side, that by the late Statute for the Union and Profecu- of the two Kingdoms of England and Scotland, Trea- j"^'J°'^ fons and Profecutions for Treafons are the fame in the fame as Scotland as here. in^^w. I was of Counfel for the Refpondent, and Mr. Booth for the Appellants, and alfo a Scotch Lawyer on each Side K * The like Determination was made by the Lords in the December following, in the Cafe of Grantham fif al' verfus Farquharfon, who was pretended to be attainted by the Name of Alexander Farquharfon, where- as his Chrillian ^ame was Patrick, ^ t?/-/ ^J/u iiJL4f'^^ /'e-^-r-^ o-v^'^J ^./"~ <"-/£t /-./C-* /tL c'/^ KfOf 7 S R E 6i8 D E Term. Pafch^^ 1720. Cafe 180. Lord Chan- cellor Parker. Vifcountefs Mont acute verfus Her Huf- hand Sir George Maxiveli ^S"C Precedents i.___j in Chancery | ^HE Plaintiff broiight a Bill againft the Defen- Jl d^nt her Hiifhand, fetting forth that the Defen- mentmade <^3fit before her Intermarriage with him did promife by the Hus- that file ftioiild enjoy all her own Eftate to her Separate the Mar- Ufe, that he had agreed to execute Writings to that riage, with- pLij-pofe, and had inftrudled Counfel to draw fuch Wri- out Writing, . ^ J , 1 1 , • 1 1 within the tings, and that when they were to be married, the Frauds "'^ Writings not being perfe6led, the Defendant delired this might not delay the Match, in Regard his Friends be- ing there it might lliame him: But engaged that upon his Honour fhe lliould have the fame Advantage of the Agreement, as if it were in Writing drawn in Form by Counfel and executed ; upon \\4iich the Marriage took Effefl:, and afterwards the Plaintiff wrote a Letter to the Defendant her Husband, putting him in Mind of his Promife, to which the Defendant her Husband wrote her an Anfwer under his Hand, expreiling that he was always willing fhe lliould enjoy her own For- 2 tune De Term. Pafchae, 1 720. ^ 619 tune as if Sole, and that it fliould be at her Com- mand. To this Bill the Defendant pleaded the Statute of Frauds and Perjuries C^), by which " all Promifes in (") ^9 Car, " Confideration of Marriage, unlefs ligned in ^^>itinCT ' "^' ^' " by the Party, are made void ; and averred that he never figned any Promife or Agreement before Marriage for her enjoying any Part of her Eftate feparately, which he pleaded in Bar of any Relief or Difcovery. It w^as urged againll: the Plea, that this Promife was on the Plaintiff's Side executed by her Intermarriage ; and therefore like the feveral Cafes in wdiich Equity did relieve, and compel a mutual Execution ; that tlie Let- ter written by the Defendant, though after Marriage, was an E-vidence under his Hand of the Agreement be- fore the Marriage, and fo took it out of the Statute. On the other Side it was faid, that the exprefs Words of the Statute made all fuch Promifes in Conlidcration of Marriage void, unlels they were in Writing figned by the Parties ; and that there was the greatefi: Reafon for it, fince in no Cale could there be fuppoied fo many unguarded Exprefllons and Promifes uled, as in AddrefTes in order to Marriage, where many Paffages of Gallantry ufually occur, and it was therefore provided by the Statute, that all Promifes made in Corifideration of Marriage Ihould be void unlefs figned by the Party. I'hat it was very wrong to call Marriage the Execution of the Promife, when until the Marriage it was not within the Statute j and the Sta'tute makes the Promife in Confideration of Marriage void ; therefore to fay that the ^Marriage was an Execution which Ihould render the Promife Good, was quite frulbating the Statuie; which the Court took Notice of and approved. Lord 6lo De Term. Pafcha, 1720. Cafe 181, Lord Chan- cellor Parker. Lord Chancellor: In Cafes of Fraud, Equity fliould relieve, even againft the Words of the Statute: As if one Agreement in Writing lliould be propoled and drawn, and another fraudulently and fecretly brought in and executed in Lieu of the former, in this or fuch like Cafes of Fraud, Equity would relieve ; but where there is no Fraud, only a relying upon the Honour, Word or Promife of the Defendant, the Statute making thofe Promifes void. Equity will not interfere ; nor were the Inftru£lions given to Counfel for preparing the Writings material, lince after they were drawn and ingrofled, the Parties might refufe to execute them, and as to the Letter, it confifts only of General Expreffions; as " That the Eihte fhould be at the Plaintiff's Command or at her Service ;" indeed had it recited or mentioned the former Agreement and promifed the Performance thereof, it had been material. But as this Cafe is cir- cumftanced, allow the Plea. Alfo this Plea being in Bar of a Difcovery as to all Matters, which if difcovered and admitted miPlatntiffs] Ma/leroftheRo/Is^&'afS Jolm Trpor thefecondSon^l^j^^.^^^^^^^^^^ Abridgment C I R JoIm TrcvoT late Msfter of the Rolls, being feifed E -Sf^' b" '" ^^^ °^ ^^^ Capital MeiTuage called Brinkynall, One Articles and divcrfc Lands in the Counties of Denbigh and toSr^^ 5^/t»/), on his Marriage with Jane Pulefton, by Articles Lands on dated thc 23d of OSioher i66^, in Confideration of Lifcl^Re"' the then intended Marriage, did for himfelf and his iiiainder to j^eJig coveuaut with the Truifees therein named, before LT Body by the End of two Years, to fettle and allure upon the his intended £^jj Xiuftces, as they the faid Trulfees Ihould direft Wile with -^ , — -. a Covenant and appoint, all the Premifles to the Icveral Ufes in Setdement " ^^^^ Articles exprefTed, as alfo in the Settlement and within two 2 COU- Years, or in Default thereof to ftand feifed to the (iime Ufes ; though this be an Eftatc-Tail at Law, yet Equity will turn it into a Itrid Settlement, De Term. Pafch^e, 1720. 623 Conveyance, as fhould be limited and agreed upon by Sir John Trevor and the faid Triiftees, and to no other Ufe, (f /^. ) To the Ufe of him the faid Sir John Trevor for Life without Wafte, Remainder to the Ufe of Jane his intended Wife for her Life, Remainder to the Ufe of the Heirs Male of him on her Body to be begotten, and the Heirs Male of fuch Heirs Male lawfullv iffuinii Remainder to his own Right Heirs. ^' Sir John Trevor by the fame Articles covenanted with the Truftees, that the Premiiles Ihonld remain after his Deceafe to the laid Jane his intended Wife for her Life, free from all Incumbrances, and in Cafe the Ufes therein were not thereafter well and truly raifed, accordin^r to the true Intent and Meaning of the Articles, that then he and his Heirs Ihould ftand and be feifed of the Premifies, until fuch Time as a farther AlTurance fhould be thereof made to the Ufes of the faid Articles. The Marriage took Effed, and Sir John had IlTuc by Jane^ the Plaintiff Edward Trevor, and the Defen- dants John, Arthur, Tudor, Anne afterwards Lady Mid- dkton, and Prudentia Trevor. No Settlement was made purfuant to the Articles, nor any Requelt by the Truftees ; and the Plaintiff Ed- rvard incurred his Father's Difpleaiure, having without his Confent married a Woman of no Fortune. Sir John Trevor and his Wife Jane levied a Fine of "^ga. the PremliTes, declaring the Ufes thereof to himfelf and his Wife for their Lives, R'emainder to the fecond Son the Defendant John Trevor in I'ail M:ile, and fo to the younger Sons in Tail Male fucceftively ; and this Settlement was by Confent of the Plaintift's Father and Mother delivered to the Defendant John Trevor. Aft er- 624 1^^ Term. Pafch^, 1720. {a) May 2o, Afcerwards Sir John {a) Treior died Inteftate, lea- ving a Real Eftate in Ireland of about 900 /. a Year, and fome new purchaied Eftates in Fee in England, which dekended to the Plaintift Edward Trevor, and poiTeiled likewiie of a very great Perfonal Eftate, the Plaintiff Edrrard\ Share whereof came to near 1 0000 /. The Plaintiff Edward Trevor brought his Bill to com- pel the fecond Son John Trevor and the other Brothers and Sillers who claimed under the Fine and Deed of Ufes of Sir John and his Wife, to convey the Premlftes to himfelf in Tail as Heir of Sir John Trevor and his Lady. And the Caufe coming on to be heard before the Lord Chancellor Parker, For the Younger Brother it was infifted, that thefe Articles were of an ancient Date, (w^.) in 166 g (about fifty Years iince) and that as a Limitaticn of an Eftate to A. for Life, Remainder to the Heirs Male of his Body, made an Eftate-Tail in A. fo in the PvXecution of Articles in Equity they would follow the Words, which muft create an Eftate-Tail in Sir John Trevor. That the Ufe being to Sir John Trevor without Wajie, Remainder to the Heirs Male of his Body by the laid [b) Ante Jane, made no Alteration ; it being a conftant (b) Rule, fbSI^n^d '•^^'^^ where an Eftate is limited to one for Life, with a Goodright Remainder (mediate or immediate) to the Heirs Male or ]vr^ght. Heirs of the Body of the Tenant for Life, thefe were only Words of Limitation. I That De Term. Pafchce, 1720. 62^ That if In any Cafe the Law were otherwife, it would be in that of" a Bcvije of Lands to A. for Life without Wafte, Remainder to the Heirs of his Body ; yet even in fuch Cafe, though it w^ere an exprefs Eftate for Life, and though there were the Words [fans Walle] and though the Intent of the Party was allowed to prevail more in a Will than in any other Conveyance, it would notwithilanding be an Eftate- Tail ; nay even in Cafe of a Devife of a Tru[l: to A. for Life without \Vail:e, Remainder to the Heirs Male of his Body, it had been decreed an Eftate-Tail in Bale and Coleman (a) by 'Lord Har court, who reverfcd the C"^ ^''f'"^-*"- Decree of Lord Cotrper in that Caie. ^ ^'^^' Alfo that the Addition of the Words [the Heirs Male of the Body of Sir John Trevor and the Heirs Male of likh Heirs Male] was immaterial and but Tautology ; for the Deed having limited the PremifTes to the Heirs Male of the Body of Sir John by Jane, the following Words did only repeat the fame Thing over again ; and it would have made no Alteration, had thofe Words been repeated ten Times over, according to i Co. 104. Shelley's Cafe, and that of Legate and Sewell"^ in \-jo6. which was fent out of this Court to the Judges of the Common Pleas, and was a much Itronger Cafe. It was admitted, that if the Limitation had been to Sir John Trevor for Life, Remainder to the Heir Male of his Body by Dame Jane (in the lingular Number) and to the Heirs Male of the Body of fuch Heir Male, this had been but an Eftate for- Life in Sir John Trevor, by Reafon the Words [Heir Male] were in the fingu- lar Number {b) and but a Defcription of the Perfon, ^^) ' ^o. 66. having a f ubfequent Limitation annexed to them ; but Cafe. 7 U even * By the Opinion of three of the Judges of C. B. (cnC Traty. Sec their Certificates, ante 88. 6i6 De Term. Pafcba, 1720. even in that Cafe it would have been a contingent Re- mainder, which the Fine afterwards levied by Sir John Trevor and hisX^ady would have barred. But in the prin- cioalCale, the firft Limitation being to the Heirs Male of the Body of Sir John by Jane (in the Plural Number) would have made an Eftate-Tail, had it been in a Con- veyance. That it was true, latterly in the Execution of Mar- riage Articles, Decrees had gone according to the In- tention of the Parties, as being a Matter wholly execu- tory, and in the Power of Equity to mould and turn as the Parties intended ; which yet was a pretty Ih-ained Conftru£tion ; for when I covenant to convey an Ertate to one for Life, Remainder to the Heirs Male of his Body by his Wife, and to no other Ufe, (as is laid here ;) that Equity fhould fay it /JmH be to other Ujes, (vi^.) To the Man for Life, Remainder to Truftees to pre- ferve contingent Remainders, Remainder to the firft, i^fc. Son of the Marriage, feemed at Law a Breach of the Covenant; and it would found hard, that there Ihould be no other Way of performing a Covenant in E- quity, but by breaking it at Law. That the Conftruflion of thefe Articles muft be the fame as if they had come under the Coniideration of a Court of Equity about the Time of the Date of them ; and then there could be no Cafe cited wherein Equity had fo far taken upon itfeif, as to Decree the Husband but an Eltate for Life, when the Articles faid he fhould have an Eflate-Tail, However, this Cafe went much farther ; for here being no Settlement of the Preraiires made, or required to be made within the two Years, this was a Covenant to ftand feifed, by Virtue of which Sir John Trevor was aftually feifed of an Eftate-Tail vefted, and thefe I Articles. De Term. Pafch^e, 1720. 627 Articles bein^ a6lually executed, were not to be exe- cuted over again in a Court of Equity; no Inftance could be given, where a legal Krtate vefteil by a Mar- riage Settlement was afterwards altered and diverted in Equity. That fuppofe this Settlement had been by way of Leaie and Releafe to Sir John Trevor for Lite without Wafte, Remainder to his Wife for Life without Wai^e, Remainder to the Heirs Male of his Body by his Wife, E- qulty would nev^r have altered or curtailed the Settlement, or turned a veiled Eitate-Tail into an Eftate for Life ; • no Inftance could he given of that Nature ; and if fo, a Covenant to Hand ieiied was as much a Conveyance^ as compleat and more ancient than a Leafe and Releafe ; for the Bargain and Sale for a Year was but a modern Invention * of putting the Grantee into PofTefiion, to enable him to take a Releafe. Again, though it might be obje£led that this Cove- nant to ftand feifed was only until a Settlement fliould- be made, yet till then it was a vefted Eftate-Tail in Sir John Trevor; and the future Settlement was to be- made only as it fhould be agreed on betwixt Sir Jolm and his Truftees, which now could never be, Sir John being dead. In the next Place it was urged, that the equitable Circumftances of the Cafe were to be coniidered. Here was an eldeft Son who had provoked his Father by a very improvident Marriage, which was but a juft Occalion for the Latter's giving away from him feme * Sir trends More is f-iitl to have been the firft Pcrforl who praiftifcd this Way, by Chief Juftice At?v/' in tiic Cafe of Barker veikb KcaU, 2 Mod. 252. 6i8 De Term. Pafcha, 1720. fome Part of the Ettate ; notwithftanding which, his Father had ftill been very kind to him: Firft, By leaving to defcend upon him an Eflate in Fee in Ireland of about 900 /. a Year, which with the Timber was w^orth above 2500c/. Se£ond!y, By leaving to defcend upon him diverfe Lands of Value in England, purchafed by the Father after the Making the Settlement, being above 200 /. a Year; all which it was in the Power of Sir '^ohn Trevor to have o;iven from him. Thirdly, by leaving a Share of the Perfonal Eikte to come to him, of near loooo /. Value. So that this w^as more than an Equivalent for the Eftate in Qiieftion, which the elder Brother could not come at but by the Aid of Equity. That Sir Jolm Trevors permitting thefe Lands to de- fcend to his eldcft Son, was giving them to him ; the not hindring him of them when in his Power fo to do, was a Gift of them to him. For this Reafon it has (a) 2 Vern. been decreed, {a) where a Man by Marriage- Articles covenanted to fettle Lands of 1 00 /. per Annum on his eldeft Son, to take Efte£l after his Death, that the leaving Lands of 1 00 /. a Year to deicend to (uch Son, was in Equity a Performance of the Covenant. So likewife the Statute of Diftribution makes (as it were) {P) 2 Vern. ^ (j^^^ \\\\\ for every Inteftate, and confequently this Ante Bia7id eldcll Sou's Share of the Father's Perfonal Eftate, which came to him upon his Father's Death, is a Lega- cy of 1 0000 /. left him by his Father. Wherefore the Eldeft Son could not fay he was wronged by that Father who has left to defcend or come to him an E- ftate of about four Times the Value of the Lands in Difpute. But the Cafe was ftill ftronger, if it was confidered that, when this Settlement was made upon John Trevor, he I w^as 558 verfus IFid- more 324. De Term. Pafcbce, 1720. 629 was then a younger Son unprovided for, and had at»> talned to Manhood ; that Equity favours inch Proviiion?, looking upon them as in Nature of a Purchafe ; for which Reaion, were there a Devife of a Copyhold without a Surrender, Equity would I'upply the Want of It for a younger Son, as nnich as it would in the Cafe of a Purchafe* Objeded, The Articles are a Lierl, a fpeciHc Lien upon thele Lands; and if the cldcH: Son has in Equity a Right to them in Specie, the Father cannot bind that •Right by giving him other I^ai^ds. Refp. The eldeft Son can have no Ri^ht to, or Lien upon thefe Lands, if the Eftate be an Eitate-Tail exe*- tuted by the Articles, and conlequently barrable by the Father, and which the F'ather upon a juft Provocation has barred; the Articles are then executed initead of executory. But for Argument fake, fuppofe this were otherwlfe : A Court of Equity is not bound to execute all Arti- cles, but confiders the Circumilances of the Cafe ; and if Hardihips would enfue on the Execution of fuch Articles, Equity, under thofe Circumftances, will not decree an Execution. . Articles can In no Cafe be a greater Lien upon Land, tha.n when I covenant to fell my Land to another. Sup- pofe then, I article to fell my Land to another for Half the Value, this being an unequal Agreement, Equity will not execute it : And in the Principal Cafe, Hard- flilps, many Hardlliips would eniue the Plxecution of the Articles. The Intention of a dead Father would be frullrated by a Son who had received from his Fa- ther fo ample an Elquivalent ; and a younger Son at 7 X that 650 De Term. Pafch^, 1720. that Time unprovided for, would be defeated of his in- tended Provifion. Farther, It was an Argument that the only Eftate intended to be eft'eftually iecurcd by thefe Articles was the Mother's Eftate for Life, {viz^) her Jointure, fince the Covenant of Sir John Trevor went only to this, that the Premifles fhould remain to her free from In- cumbrances, no Covenant extending to the Heirs Male of the Marriage. It was of Weight alfo that the late Majler of the Rolls (who had fo long prefided in a Court of Equity with great Experience and Reputation) was fo far from being apprehenfive the Articles hindered him from dif- pofing of thefe Premises, that he recited the very Ar- ticles in the Settlement now in Qtieftion, and was fo far from concealing them (which it feems had been an Imputation caft upon him by the other Side) that he recited by this very Settlement his Intention to inrol them ' in Chancery. His Honour was fo well fa- tisfied he had a Power over this Eftate, as to have fold Part of it to a Purchafer who then quietly enjoyed it; but how long he was do fo, if the Plaintiff prevailed, might be a Qiieftion. Upon the whole Matter, the Law was for the De- fendant John Trevor the fecond Son ; the equitable Cir- cumftances of the Cafe were tor him ; the Intention of his dead Father was for him; the Opinion too of his Fa- ther, who might be juftly faid to have been a great Judge, was alio for him ; and it was hoped the Opi- nion of the Court would be fo to. But Lord Chancellor decreed againft the Defendant jfolm Trevor the fecond Son, -on thefe Reafons : I That De Term. Pafch^^e, 1720. 631 That Marriage Articles were In their Nature execu- tory, and ought to be conftrued and moulded in Kquirv according to the Intention of the Parties. & Now that Intention was plain In this Cafe, and the Confideratlon extended to the Heirs Male of the Body of Sir John by his Lady, as well as to her in Refpe£! of her Jointure. Befides, the Agreement was to fettle the Premlites to himlclf for Life n-ithout Impeachment uf Wcipf^ and to the Heirs Male of his Body by Jane^ and to the Heirs Male of futh Heirs Male; fo that it could not be doubted but that the Intention was, Sir John lliould have an Eftate for Life only ; and the Privilege of Wafte would be to no Purpofe, if he was to have an Ertate-Tall, w^hich would of Courfe have made hirri difpuniiliable for Walk. That If within the two Years the Wife's Truftees had called for a Settlement, or had brought a Bill to compel a Performance of the Marriage Articles, there could be no Qiieftion, but that according to the feveral Precedents which have been in this Court, Equity would have directed the Settlement to have been made to Sir John for Life, Remainder to his firft Son, ^c. and to lay Precedents have not gone fo high and fo far backwards as the Date of theie Articles, feemed imma- terial ; for what is Reafon, Equity, and good Con- fcience norv, always was, and always would be fo. And as, if the Truftees had applied within the two Years, in order to have a Settlement made, it would then have been directed to be made to the firft, i5fc. Son of the Marriage ; furely their Default or Neglect lliouLl 652. De Term. Pafch^, 1720. fiioLild never hurt the IfTue of the Marriage -, it \\'ere' abiurd to fay it IhoiilJ. That it would be a ftrange and vain Confl:ru£lion of the Articles, if Sir John fiiould have fuch an Ellate by them, the Limitations of which the very next Day he might by a Fine d^ftroy ; and making fuch a Settlement upon the firft, i^fc. Son, would not be a Breach of the Covenant, becaufe it would be a Settle- ment according to the Intention of it ; and a Settlement according to the Intention of the Covenant is not a Breach, but a Performance of it. That by the whole Scope of thefe Articles, they were never deligned for a Settlement, but only a bare Agreement, how, and to what Ufes the PremilTes in Qiiellion lliould be lettled. For firft. Sir John Trevor covenanted, within two Years, to fettle and affure the PremifTes to Truftees and their Heirs, as they or their Heirs or their Counfel fhould appoint, to the feveral Limitations and Ufes in the Articles mentioned, and alfo in the faid Settlement, as fhould be agreed upon by Sir John Trevor and the Truftees. That the Covenant to ftand feifed, in the latter End of the Articles, could not be taken as a final Settle- ment from the Words of it ; and the precedent Part of them were provilional only, (^72L.) to ftand till a Settlement lliould be made, effeftually to anfwer tlie Intention of the Parties. That the Articles gave a Right fo the eldeft Son to claim thele Lands in Specie, which if he inlifted upon, he muft have ; and if other Lands had been given to him in Satisfa6lion, ftill he might have claimed thefe Lands, and Equity could not have hindered him. That I he De Term. Pafchuftomary Part in fuch Manner as the Husband fhould direft, it would not in fuch Cafe hai'e been ex- tinct, but mull have been alligned accordingly ; or if it had happened that the 40c /. had not been paid to the Freeman's Wife, woukl Ihe not then have been at Liberty to have taken Advantage of the Cuilom; at leaf I fo far as to have made up her 400 L? Afterwards, (^7^.) AW^wZ'^r 2 3. 172c. the following Order was made. " Upon reading the Releafe from the Defendant Frances Barker^ dated the 1 9rh of ^June 1706. the Will of the laid John Hebbert; dated the ^th of AUrch 1715. the Articles dated the i6th of February 1684. and a Bond of the fame Date, 8 B "His u ii as if there was no Wife, and confcqucntly ihar the Husband fliould have one Mciety and the Children the other. I'ne hke was held by the Lord Hardwicke, in rhe Cafes of Medcalfe verfiis h'H-, and Alorns verfus Burrow, heard June 18. and Fclnuiry 3. 1737. 646 De Term. Pajchcc, 1720. u li a u Ci 61 iC a a a li His Lordfliip declared, he took this to be an abfo- " lute Agreement, that the Defendant Hefier Ihould per- " form the Condition of the faid Bond, which was, that " after her Husband's Death, Ihe fhould releafe to his " Executors, and that the Agreement was not that her " third Part Ihould be abforbed for the Benefit of her Children, but fhould go to his Executors for the Benefit of his Will ; that his Lordfliip would look into Prece- dents, and fee whether they come up to the prefent Cafe, and alio whether the Cuftom of the City of London had been certified as to the Qiieflion, whether when the Widow of a Freeman is compounded with or barred before Marriage from claiming her Cuftomary Part of her Husband's Eltate, and fuch Freeman dies leaving fuch Widow living, and alfo one or more Child or Children, is a Moiety, or Third of fuch Freeman's perfonal Eftate to be the Orphanage Part ? And in Cafe the Cull:om had already been certified in that Point, his Lordfliip would not fend it to the City " again to be certified. it And as touching the faid Orphanage Part, his Lord- *' fhip declared that the Teftator had a Power to releafe " the Agreement made with the Defendant Frances Bar- " ker before her Marriage, and that he had releafed the " fame by his Will, by giving her the Remainder of his " Real and Perfonal Elf ate ; that by the Words of the Releafe executed by the faid Defendant Frances Bar- ker., Che was not to be barred of what more her Father would give her by his Will; and the leflator having thereby given her the Remainder of his Perfonal Eflate, his Lordihip was of Opinion, that one Third of the " Perfonal Eitate (in Cale the Defendant Hefler Hebbert " fliould be barred thereof) would not fall into, be ab- " forbed, or extinguilhed in the Orphanage Part, but " would fall into and belong to the Teftamentary Part ; I " and De Term. Pafchce, 1720. 647 and the Plaintiff Bc[icY would be intitled to no more than a Moiety of one Third of her Father's Perional Ertate, the Defendant Frances Barker brinnin" the Lealehold Houies and the 4COC /. j^iven her upon her Marriage, into Hotchpot: His Lordlhip farther de- claring, that her' Advancement was certain, being the laid Leafehold Hoiiles and the laid 4CC0 /. and that by the Ciiftom, not the Value of the Advancement is to appear with Certainty, but the Thing advanced ; and that the Freehold PLftate fettled then upon her ou^lit not to be brought into Hotchpot, the Cuitom of the City of London not havino; any Power over ia) Lands ^"'^ ^'"^^ a"- of Inheritance; and in Caie, upon looking into Pre- bingtonsti{w cedents, his Lordlhip fliould not find that the Qiielfion ^^"^■^•'"^■ (^Vhether when the Widow of a Freeman is com- pounded with or barred before Marriage from claim- ing a Culfomary Part of her Husband's Flfate, and luch Freeman dies leaving one or more Child or Chil- dren, the Orphanage Part of fuch Freeman's Perfonal Eifate is a Moiety, or only a Third) hath been fully certified, then at the fame Time his Lordfliip would, if he Ihould fee Caufe, lend it to the Lord Mayor and Court of Aldermen, for them by their Recorder to certify the Culfom in that Particular. Alfo that his Lordlhip would, if he iFould find Caufe, likewife fend it to that Court to certify the Cuitom of the City of London, as to the Father's Power to compound or make an Agreement with the Daughter before her Marriage, touching her Cuftomary Share of his Per- fonal Eifate ; and after his Lordlhip Ihould have been attended with Precedents, or lliould have the Curt om of the City of London certified in the Points afore- faid, (in Cafe there Ihould be Occafion) luch farther Order fliould be made as lliould be julf: ^." * At length the Parties eame to an Agreement, fo that thefe Points were never certified. Anonymui 648 De Term. Pafch^, 1720. Cafe 184. Anonymus. (Caufe by Confent.) Lord Chan cellar Parker. 10,000/. '' I 'EN Thoutand Pound being given in Marriage by TruftMo- X fhe Father of the Husband and the Father of greed w be the Wife, was agreed to be in veiled in a Purchafe and laid out in fettled on the Husband for Life, Remainder to the Wife Land, and r -r i-. /i • \ r» • fettled in the lor Lite as to Part (bein^ 300 /. per Ammmj Remain- i'orm of _ . ' . ' Marriage Remainder to the Husband in Fee, and in the mean i?em5'"Fd' '^"''^"'e fo be placed out on Securities, the Intereft to go in buying as the Profits of the Land when purchafed. South-Sea Stuck, and improved to 30,000 /. As the Truft would haye fufFered by the Fall, Co {hall it have the Benefit of the Rife of the Stock; but the Husband wanting 5000 /. of the 30,000 /. the Court decreed that 15,000/. fhould be taken out ; a Third of which (viz.) 5000/. fhould go to the Husband, as a Recompence for his Eftate for Life; and that 10,000 /. fhould be laid out in Land to be fettled on the firft Son of the Marriage in Tail in PolFeffion ; but to prevent fuch Son's fufFcring a Recovery, tlie Premifles were direfted to be fettled on the Father for Life, who was to let the fame to the Son for ninety-nine Years, if the Father fo long lived. This 10,000 /. was by Confent of the Parents and Truftees laid out in the Purch.ale of South-Sea Stock, and by the late Rife of that Stock improved to above 30,000 /. and it being of a llutluating Nature as to the Value, the Husband and Wife, who had two Sons, brought their Bill againil: the I'ruilees, and the Father of the Husband, and Father of the Wife, and the In- fijnt Children, praying that the Stock might be iold, the Money produced by the Sale laid out in Land and lettled, and that in Regard of the great Increafe, the Husband might have 6000 /. of the Money to buy himielf a Place. All the Defendants by their Anfwer faid, they thought it for the Benefit of the Trult that the South- Sea Stock lliould bs iold, and the leveral Fathers of I the De Term. Pafcha, 1720. 649 the Plaintiffs diM not oppofe the Husband's havln^^ 6000 /. lince cll that was agreed or expelled to be laid out in a Pur^hafe, was but io,oco /. and therefore iubmitted that Matter to the Court. This was firft heard before the Mnflcr of the Rolls ^ and afterwards by the Lord Chancellor^ who were both of Opinion, that as, if the Stock had fallen, the Truil muft have iuftered, fo it's accidental Rile or Improve- ment mull be for the Benefit of the Truft; and tlierefore that the Infint Children had a Ri"ht to the whole Capital after the Husband's Death, the Con- foquence of which was, that he ought not to be per- mitted to have any of the Capital. But then it was faid, that the Husband's Eilate for Ivife was one Third in Value, if compared to the Children's Reverfion, which made up the remaining two Thirds : Upon which the Matter w^as thus compromifed by Conlent, and Lord Chancellor decreed tjiat the Stock fliould be I'old, and out of the Money produced thereby, i8jOOO /. lliould be taken, of which the Husband to have one Third, vi-xi. 5ooo /. to his own Ufe abfolute- ly ; but in Confideration thereof he fhould quit his E- Itate for Life in the i 2,000 /. which being the remain- ing two Thirds of the i8,oco /. Ihould go immediately to the Children and for their Benefit, out of which the Husband to have an Allowance for the Maintenance of them ; and in the Settlement of the Land to be bou ^^ ^^^^ ^um duc to him for Intereft, computing it due ; if a at 6 1, per Cent, and the Mortgagor returns an Anfwer, c^rt Zt\ allowing the Account, defiring Forbearance, and pro- not relieve; mifing to make Satisfa£lion to the Mortgajiee for the fecus if but a ^ ^ " ^ fmaii Slip of lame. 'r™'^- 4 Objca. De Term. S. Trin. 1720. 6<^5 Obje£l. This Letter ligned by tlie Mortgagor, makes the Account a ftated one ; and the Intereft from tlience ought to carry Intereft, fmce promifmg Satisfaftion upon Forbearance can mean nothing elfe ; and as the Account fent in, was at the Rate of 61 per Cent, this Promile muft be intended of fome farther Satisfa6lion beyond that Intereft: Alfo where the Mortgagor admits by Writing under his own Hand the ^antum of the Intereft due, it is as ftrong as when a Mafter by his Report com- putes it. Lord Parker : It Is true, a Matter's Report compu- intereft ting Intereft, makes that Intereft Principal, and to carry Siaftei^T {a) Intereft ; for a Report is as a Judgment of the Court, R^i^" ^laii and appoints a Day for the Payment, carrying on In- reft.^ tereft to that Day ; and the Party's Dlfobedience to the ^^^ "^"'^ Court, in not complying with the Time of Payment, ch-rk. ought to fubje£l him to Intereft. But fuppofe the But where Mortgagor figns an Account whereby he owns fo much ^^l^rl^'. Money due for Intereft, I queftion whether this will an°Account make the Intereft Principal ; becaufe of itfelf it does JJlJch i'sa?- not ftiew any Agreement or Intent to alter the In- mitted to be tereft or the Nature of that Part of the Debt, or iR-ff^thil" turn it into Principal ; neither does it appear to ^''i ""t car- have been ever fo determined. I conceive, to make unic'fs^the ' Intereft on a Mortgage Principal, it is requilite there j^o^g^gor fiiould be a Writing figned by the Parties, for as ter orVVri- much as the Eftate in the Land is to be charged ['"g ""'^" - • \ /-t r 1 nisHan.i a- therewlth ; but in the Principal Cale the Mort- greestomake gagor does fulfil his Promife, by making Satlsfac- '' P"""^'?^'- tion to the Mortgagee for his- Forbearance, iince this Provifo obliging the Party to pay 6 /. per Cent, on Default of paying 5 /. within three Months after due, is generally looked upon as a Penalty, and in Terro- rem, and to be relieved againft, if only a very Ihort 8 D Time 6^4 ^^ Term^ S. 7rin. 1710. Time has happened, though it may not be relievable againft in Cafe of a long Arrear of Intereft. How- ever, this I /. per Cent, is a Satisfa£lion, and a con- liderabie one too. But the Court at the fame Time declared, if there had not been fuch a Penalty of 6 I, per Cent, inftead of 5 /. and a great Arrear of Intereft incurred, it would, on fuch a Promife in Writing to make a Satis- fa61:ion for Forbearance, have given the Mortgagee £ome Allowance in this Refpe61:. DE 6^'; D E Term. S. Michaelis, 1720. Taylor verfus DuUldge Hofpital /woitis?. Surrey. t«-d am- ^ cellor Parker. T HE Holpltal or College of Dullidge was feifed in ^ College Fee of feveral Lands in Right of the College, "s Conftitu- and the Statutes relating to the Conftitution of it, re- ''°" . ^'°^ ftrain from making Leafes of the Lands other than L^kl'^17- for twenty-one Years, at the Rack-Rent. In \6q6 the "p' ^"^ ttT'i] t r c^ I 1 1. rt' twenty-one Holpital made a Leale to John Taylor the Plaintift's Years, and Inteftate for twenty-one Years, under what was then rcu'' makes the Rack-Rent, which was to expire at Michaelmas 1 7 1 7, Orders, rc- tjie LefTee had improved the PremilTes by building two i^n"'irtoth"cir Houfes, and at the College Audit, which was kept Succeiibrs to twice a Year, every fourth of March and fourth of Sep- [ha^the temberj an Entry was made in the Regiiler, by which, in Rack-Rent; Coniideration that the ija<\ Jdm Taylor had built twovouredas Houfes on the PremilTes, and thereby improved the ^^"'''"S '° . ' y r a Breach of lame, thereiore it was recommended that at the End the S:>;tut<:s. of the Leafe, the College Ihould make him a new Leafe for twenty-one Years at the ancient Rent, without raifing itj and this Entry was ligned by the Maiier- NVarden De Term. S. Michae/is, 1720. Warden and moft of the Fellows. Afterwards when the Leafe was near expiring, upon the Inteftate's ap- plying for a new one, the College at the Audit held on the 4th of March 1 7 1 6 (the Leafe being to expire on the Michaelmas following) made an Order that the Inteftate ftiould have a new Leafe of the Premiffes from Michaelmas next, at the old Rent, and under the fame Covenants, as the former; and this Order was ligned by the Mafter-Warden and moft of the Fellows. The Inteftate died about the Time of the next Audit September 4. 17 17. whereupon the Widow having taken out Admlniftration, at the Audit in March following, ap- plied for a new Leafe according to the Order ; but being refufed, ftie now brought a Bill to compel the College to make her a new Leafe of the Premiffes in Purfuance of their own Order ; and Allen the Mafter-Warden was the Plaintiff's principal Witnefs. It was alledged, that the Order for making a new Leafe to the Inteftate, did amount to an Agreement; and coniequently the Bill was proper to compel an Ex- ecution of it. Lord Chancellor: The Mafter-Warden (Mr. JJlen) who appears as a Witnefs in the Caufe, betrays his Truft in Relation to the College, and has a6led inconliftently with the Oath he has taken as Warden ; neither do I like the Recom.mendation made by the Mafter-Warden and Fel- lows to make a new Leaie to the Inteftate Taylor, at the old Rent ; it being no lefs than a Recommendation to their Succeffors to wrong the College, and break their Statutes, which fay, that no Leafe Ihould be made but The figning at the Rack-Rcuts. As to the Signing of private Per- traa fof ""' ^^^^^■> "a^'^ely, the Mafter-Warden and Fellows, that leafing by cauuot be fucli a Contra6l as binds the College ; for a IndFdfows Contra£l to bind that (or indeed any Corporation, as of the Col- I tQ lege, unlefs under the College Seal, not binding on the College. De Term. S. Michaelis, 1720. 6^7 to it's Revenue) mull be under it's Common Seal. It is true, there would have been fome Equity, if the In- teftate had, after this Order for a new Leafe at the old Rent, laid out Money in improving or building on the Premises, in Confidence and Reliance on luch Order. However, even in that Gale he ihould have had his Reparation only from the private Perfons lignin^ the Order, not againft the College: As to the Repairs done by the Leflee lince the Order for the new Leafe, thefe are no more than what by his old Leafe he was obliged to do ; for which Reafons dilmiis the Bill with Colls. Saunderfon verfus Clagget. cafe iss. In B. R. D R. Claggetj Archdeacon of Sudbury in Suffolk, com- Procura- menced a Suit in the Confiftory Court of the "°"' f'^ •n r r i r com- Bimop of Norvpich, for the Annual Sum of 5 j. 8 d. mon Right as a Procuration or Proxy due to the Archdeacon, for [{Jop^or (lli^s VilitationS. Vicar) the '' Archdea- con's inftrufting the Clergy; and properly fuable for in the Ecclcfiaftical Court. The Libel was by Dr. Clagget, Archdeacon of the Archdeaconry of Sudbury in Suffolk, in the Cathedral Church of the Holy Trinity in Norwich, of the Founda- tion of King Edrvard VI. exhibited againft Saunderfon, as Proprietor or Curate of the Appropriate Reftory of Jfpal in Suffolk (which is within the Archdeaconry of Sudbury) alledging, that the Archdeacon of Sudbury was of common Right, Endowment, or Cuftom, entitled to the yearly Sum of 6 s. ^ d. for Procurations iffuing out of the Appropriate Church of Jfpal, and that Saun- derfon the Proprietor or Curate of that Church refufed to pay it. Upon which Saunderfon applied to B. R. for a Prohibition, and fuggefted, that this Reftory of Afpal was Time out of 8 E Mind 698 De Term. S. Mi c ha e lis, 1720. Mind a Re6lory impropriate, without any Vicar en- dowed; that all the Tithes and Profits within this Re£lory, Time out of Mind, belonged to the Pro- prietor thereof, who at his own Expence uied to pro- vide a Curate to celebrate Divine Service at the Parilh Church of Jfpal. The Court of jB. J^. having granted a Prohibition Nifi; I came to fliew Caufe againft it, and urged, that of common Right every Parochial Church pays Procu- rations, or fome annual Sum in lieu thereof to the Or- dinary or Archdeacon ; that accordingly Sir John Da- vis in his Cafe of Proxies (fol. 6.) fays, " Procura- tions or Proxies are as much due to the Superior Clergy, the Ordinary, or Archdeacon (who is the Ordinary's Vicar) as Tithes are of common Right due " to the inferior Clergy." That Proxies and Tithes concur in all Points ; for, ]ft, as the Inftru6lion of Laymen is the Origin of paying I'ithes, fo the Viiita- tion of the Ordinary (or of his Vicar the Archdeacon) which is accompanied with Infb-u611on, is alfo the Ori- gin of Parfons paying Procurations. zdly, That as a Layman cannot prefcribe in Non- payment of Tithes, fo the Parfon himfelf (at leafl by the Common Law) cannot prefcribe in not paying of Procurations. And, •^dly. That as Unity of PofTellion does not extinguifh the Right of Tithes, fo neither does the Unity of Pof- fellion extinguilh the Right of Procurations. The Uni- ty of PofTellion as to Procurations in Sir John Davis's Reports happened in this Manner ; a Proxy of 2 o i. per Annum was ifTuing out of an impropriate Re£lory pay- able to a religious Houfe, both of them came to the Crown in Fee-fimple, and this was held only a Sufpen- fion, and no Extinguifhment. Now, if the Payment I of De Term. S. Michaclis, 1720. 6^^ of Procurations from every Parochial Church is of com- mon Right, then the Party contending againft common Right, ought to come with fome Affidavit to fupport his Suggeltion for a Prohibition, {vi-z^) that his impropri- ate Re£lory has been held and enjoyed free from xhe Payment of any Procurations, and reputed of Right to be fo. This is exprefiy laid in Salk. 549. Godfrey verfus Lexcellin^ where it was declared by Holt C. ], that if the Matter fuggeited for a Prohibition i.ppears on the {a) Face of the Libel, the Court will not require an Affidavit ; but where the Matter does not appear upon the Libel, in inch Cafe the other Side ought to have an Affidavit of the Truth of this Suggeftion. A for- tiori ought it to be lo in this Cafe, where the Matter fuggefted for the Prohibition is contrary to the Libel, and againll common Right. And Indeed, if a bare Suggeftion would do without an Affidavit, none could fall of a Prohibition, whereby the Hands of the Spiri- tual Court would (for fome I'ime at leaft) be tied up. But furely this Suit for Procurations Is proper for the Spiritual Court ; the Duty fued for [Procurations] is a Spiritual Duty ; It is claimed by a Spiritual Perfon [the Archdeacon j] and in this Cafe (tho' an unneceflary Ingredient) It is claimed from a Spiritual Perfon, the Curate of the ParilTi of Afpal, who in his Suggeftion for the Prohibition, gives himfelf the Addition of Cler- gyman. It muft be admitted, the Manner of this Archdea- con's intitling himfelf by the Libel to the Procuration of 6 s. Zd. is by feveral Ways, of common Right, by Cuftom, or by Endowment ; and (with Submiilionj every one ot thete Titles is tryable by the Spiritual Court ; ( to c. This faid Eftate, as well as his Freehold Houle jn Sharp s SiSf Court, with all the reft of his Goods and Chattels toC. ify^. whatfoever and wherefoever, he gave to his Nephew no?irI.?at William Gore ; and if either of his Nephews William or their Death. lYalter fljould depart this Life and leave no Iffue of their refpeSlive Bodies, then he gave the faid [Lealehold] PremilTes to the Daughter of his Brother William Gore, and the Children of his Sifter Sibley Price ; upon which the Qiieftion arofe, whether the Limitation over of the Leafehold Premifles to the Children of the Devifor's Brother and Sifter, was void as too remote ? The Court was of Opinion that the Devlfe over was void, and faid that had the Words been, if ^ or 5. fhould die without Iflue, the Remainder over; this plainly would have been void, and exa£lly the Cafe of Love and Windham, i Sid. 450. i Fent. 79. i Mod. 50. Now there is no Diverfity betwixt a Devife of a Term to one for Life, and if he die without Ifliie, Remainder over, and a Devife thereof to one for Life, with fuch Remainder, if he die leaving no Iftue ; for both thefe Devifes feem equally relative to the Failure of Iffue at any I'ime alter the Teftator's Death ; and for this the Court cited and much relied upon i Leon. 285. Lee's Cafe, where one devifed Lands to his fecond Son William, and if William lliould depart this Life not I having * In the Regijler-Book i: is faid Termmation, De Term. S. Mn/jae//s, 1710. 66 <7 having Iflue, then the TeiLitor willed that his Sons-in- Law ihoLild fell his Lands, and died : William had IfTue a Son at the Time of his Death, who afterwards died w^ithout Iffue ; upon which It was clearly refolved by the whole Court, that though literally William h;.d IfTue a Son at his Death, yet when fuch IlTue died without IfTue, there iliould be a Sale ; for at w h;:t Time foever there was a Failure of IfTue of William^ he up- on the Matter died without IlfLie. And in a Formedun in Reverter or Remainder, whene\ er there is a Failure of IfTue, then Is the * flrff Donee, in Suppolition of Law, dead without IfTue. His Honour mentioned the Cafe of Hiigbcs and Ante 534. Sayer, which he hinifelf upon Confideration had de- termined ; and fald there was a Diverfity betwixt If- fue and Children, IfTue being nomen ColleSlivum ; and alfo between Things merely Perfonal and Chattels real ; more particularly in the Cafe of Hughes and Sayer, by the Devlfe over of the Money to the Survivor, if either of the Donees fhould die without Children, the Te- ftator of Neceffity muft be intended to mean a Death of the Donee without Children living at his Death ; for to wait until a Failure of IfTue, might be to \x'alt for ever. It being alfo debated by Counfel, where the Refldue of the Term vefled, in Regard the Devile was to Wil- liam and Walter Gore: The Court declared that the fub- lequent Words increafed their Interelf, and gave the whole Term to them, it being plainly intended to dll- 8 G pofe * For which Reafon, altho' the firft Donee had many KTues in lineal Defcent inheritable to the Eftate-tail, and who held the Eftate, the De- mandant need not name any ot the IlVues in the Claufe, \_ct qu,epqft mortem^ i^c."] but fhall fay, et qu'* ing before Lord Parker upon an Appeal, his Lordfhip reverfed the Decree ; and faid, That if I devife a Term to A. and if A. die without leaving Iflue, Remainder over, in the vulgar and natural Senfe, this muft be in- (i) Vide ante tended (b) if A. die without leaving IfTue at his Death, fusHooplrl' and then the Devife over is good ; that the Word [Die] and Target bgjng the laft antecedent, the Words [without leaving If- and Pwhury fuc] muft refer to that. Befides, the Teftator who is verfus El- -^^p^ ConcHU, will, undcr fuch Circumftances, be fup- pol'ed to fpeak in the vulgar, common and natural, not in the legal Senfe. His Lordfhip likewife took Notice that in a Formedon in Remainder, where Tenant in Tail leaves IfTue, which Iffue afterwards dies without IfTue, whereupon fuch Writ is brought, the Formedon fays *, that the Tenant in Tail did die leaving IfTue J. S. which J. S. died af- terwards without IfTue, and fo the firft Donee in Tail died w^ithout IfTue, thus the Pleading fays, that the Do- nee in Tail died leaving IfTue at his Death; confequent- ly the Words [ leaving IfTue] refer to the Time of the Death of the Tenant in Tail, and if the Words of a Will can bear two Senfes, one whereof is more common and natural than the other, it is hard to fay a Court ihould take the Will in the moft uncommon Meaning ; to do what ? to deflroy the Will. I idfy, He * .%^f, and fee the Regifier of JVrits^ and 8 Co. 88, a. De Term. S. Micbaelix, 1710. 667 idly^ He faid that the Reafon why a T>evl(e of a Freehold to one for Life, and if he die without llfiic, then to another, is determined to l->e an Kliate-tail, is in Favour of the {a) lilue, tliat fiuh may have it, and ^"^ ^"'^^ ""- the Intent take Place; but that there is the pl:i inert Dif- oV^!,-^,;< "^ ference betwixt a Devile of a Freehold, and a Devife ^■"'"=i<-'''"i'"- of a Term for Years ; for in the Devife of the latter to one, and if he die without IfTiie, then to another, the Words [if he die without Kfue] cannot be fiippofed to have been inferted in Fax'our of inch JlTue, lince they cannot by any Conftruftion have it. T^dlyy His Lordfhip obferved what feemed very ma- terial, (and yet had been omitted in the Pleadings, and alfo by the Counfel at the Bar) that by this Will the De- vife carried a * Freehold as well as a Leafehold Eilate to William Gore, and if he or Walter died leaving no liTue, then to the Children of his Brother and Sifter, in which Cafe it was more difficult to conceive how the fame Words in the fame Will, at the fame Time, Ihould be taken in two different Senies. As to the Freehold, the Conftru£lion fhoiild be, if William or Walter died with- out Iffue generally, by which there might be at any Time a Failure of Ifllie; and with Refpe6l to the Lealehold, that the fame Words fhould be intended to fignify their dying without leaving Ifl'ue at their Death: However, Lord Chancellor faid, it might be reaionable enough to take the fame Words, as to the different Eftates, in different {b) Senfes, and as if repeated by tw^o feve- ^^) vidc ral Claufes, {vi^.) I devife to A. my Freehold Land, ^'°'- !'• and if A. die w^ithout Iea\'ing Ifflie, then to B. and I h'"Bi/cpo/ devife my Leafehold to A. and if A. die without lea- Lincoln. vins: * By the Will, as it is ftated above, from the /J^^o-^tv's Book, botTi in the State of the Cafe at the Rolls, and on the Appeal, the Limitation over was expreQy rcftrained to the Leafehold ; but in Lord Mac(lisfiela'% Notes that Word is omitted, and tlie Devife over is general. 668 De Term. S. Michaelis, 1720. SoS nr^E Teftator having two Sons and a Daughter, by •aughter, ^ hls Will, of which he made his Wife Executrix, ving liTue, then to B. in which Cafe the different Clau- fes would (as he conceived) have the different Con- ftruftlons above-mentioned to make both the Devifes good; and it was reafonable it fhould be fo, Vt res ma^is valeat qiiam pereat. £5Z; Marpj verfus E'vain. cellar Parker. One having twoSonsanc a Daughter, gfvestoeach gi^^^s 2 00o/. a-pJecc to hls two Sous, and 2000/. to 2000/. pay- his Daughter, payable at twenty-one or Marriage, with a ty-one, pro- Provlfo, that If hls Affcts lliall fall fliort for the Pay- feJfiii*fhor' ment of thefe Legacies, ftill the Daughter ihall be paid to pay the her full Legacy, and that the Abatement lliall be born ^e^Abite pi^oportionably out of the Sons Legacies only. The ment (hall Teltatot Icaves fufficient to pay all the Legacies, but ^t^he'so^ the Executrix wafted the Affets, and by that Means Legacies, only there happened a Deficiency. leaves Aflets to pay, which the Executrix waftes ; the Daughter's Legacy (hall have the Pre- ference. Decreed by the Mafler of the Rolls, that the Teftator coidd never intend to make good the Daughter's Lega- cy at the Expence of the Sons, againft the Wafting of the Executrix ; that the Eftate could not properly be laid to fall ftiort, the Teftator leaving Aflets to pay all his Legacies ; nor could it be prefumed he forefaw his Executrix would wafte his Affets, for then he would not have made her fo : Wherefore this being a Cale unforefeen, was unprovided for by the Teftator, and conlequently the Daughter ought to abate in Pro- portion. But on Appeal to the Lord Chancellor, this Decree was reverfed ; for that here was a plain Preference given to the Daughter's Portion before thofe of the Sonsj and I this De Term. S. Michaelis, 1720. (yd^ 1 this Cafe was within the Words, the Eftate ailually fal- ling fhort to pay the Legacies ; that as the Telktor had not reftrained it to any particular Means by which the AiTets llioiild fall fliort, it mull: be taken generally, r/^. if by any Means there flioukl be a Deficiency ; for Hi 11 the Damage was the fame to the Daughter, whom the Father feemed in all Events to have provided for with a Portion of 2000/. His Lordlhip put this Cafe, Suppofe the Eftate had after the Teitator's Death, fallen Ihort thro' a Lofs by Fire, or by a bad Title on which Money had been lent, neither of which could have been fore- feen by the Teftator, furely both thefe Accidents would come within the Provifion of the Will, and the Daughtcr fliould have her full Portion of 2 coo /. that it was the {ame Thing as if the Teftator had faid, his Daughter's Portion fhould be paid in the firfl place j and the Con- ftru£lion which the other Side would put on this Claufe, was to make no Diftinftion where the Teftator has made a very plain one. Wherefore let both the Words and Meaning of the Will take Efte£l, that is, let the Daugh- ter have her full Portion, and the Abatement be made only out of the Sons Legacies. Attorney Genera/ verfus Grant Re&or ^'^^ '9'- /-• #^^ 7\ /7 > Lord Chan- of iSt. DUJtJtanS. «//.r Parker, A N Information was brought in the Name of the ]S^^Siu\n Attorney General at the Relation of the Inhabi- MMe/ex is tants of the Rolls Liberty, againft the Impropriator, p^'rifh of St. Curate, and Overfeers of the Poor of the Pari Ih of^""/^""'" St. Dimflan in the Weft, London, for an Account oi Undm^jind Charities given by feveral Wills and Deeds, to the Poor of S,"""'^"^"^/ r • \ •t^ ^ -1 /• 1 Fifthtowards the laid Parilh; and as the Liberty or the Rolls ■was Part the Repirs of the Parllli of St. Dunftan, and the Inhabitants of j'^^'I'^'j^Jf^, 8 H that liaving di- ftina Ovcr- feeri, and maintaining its Poor foparatcly, is not intitlcd to a Share of tl)c Charities given by Will or Deed to the Poor of St. Dunjlan's, tho' intitkd to a Fifth of all Colledioni made at ^ Clmrcii Doors, or at SacramentJ. 670 De Term. S. Michae/is, 1720. that Liberty, on the faid Parlfli Church being lately re- paired, had been aiTeiled, and paid a fifth Part towards the Repairing thereof, (vi^. 300 out of i 500 /.) there- fore it was prayed, that the Rolls Liberty might have a Fifth of all the Charities by Will or Deed given to the Poor of St. Dimfians, as likewife of the charitable Colleilions made at the Door of the Church, or at Sacraments. It feems the Parifli of St. Dunjian, with Regard to fuch Part thereof as is within the City of London, has feparate Officers, both Church-Wardens, and Overfeers, and maintain their Poor feparately ; in like Manner that Part which is within the County of Middlefex, and Li- berty of the Rolls, hath diftinfl Officers for the Poor ; but as to the Chapel, that only belongs to the Mafier of the Rolls, who ex gratia gives Leave to the Inhabi- tants of the Liberty to come there. Before the Lqj,^ ?arker : Before the Statute of the 42 of Elk. btatute ri/-wrr ^-y. r r t 43 Eiiz. there were no inch Omcers as Overieers 01 the Poor ; no'TucrSf- fi^'^^ which, as that Part of the Parifh of St. Dunftan ficers as which Hcs in London, has had diftin6l Oi'erfeers, made the Poor! ° diftinfl Rates, and maintained their Poor feparately, this makes them as a diftinil Parilh ; for which Reafon, with Refpefl: to all Gifts of Charities by Will or Deed given to the Parifh of St. Dunftan in the Weft, that Part of the Pariih which lies in London muft have and enjoy the fame, exckilive of the Rolls Liberty ; but as to all fuch Gifts, Grants or Devifes before the Statute of the 4 3 Eliz^. as at that Time the Pariih and Liberty were not feparated by diftinft Officers and Overfeers of the Poor, the Liberty of the Rolls being then Part of the Pariffi, Ihall have a Proportion thereof : But the Li- berty having contributed to the Repairs of the Church, and being really within that Pariih, as to all Colleftions of Charities at the Church Door, or at the Poor's Box, or I at De Term. S. Micbae/is, 1720. ^71 ac the monthly or other Sacraments, which are in Part given by the Inhabitants of the Rolls Liberty wlio have Seats in, and repair to the Church of St. Dunfldn ; and forafmuch as the Inhabitants of tlic Rolls Liberty pay towards the Parfon and Le^lurer of St. Dmflan\ ft here being in Vacation Time no Preaching at the Roll's Chapel) and contribute to the C'harities of St. Diinftans : So ought the Poor of the Rolls Liberty (being Part of the faid Pariih) to have a proportionable Share of thofe Charities; wherefore to the Intent it may be fcen whe- ther this has been obferved, let the Difpofitions of thefe laft mentioned Charities be Ipecified in a Book con- taining the Names of the Perions to whom given, and for what Purpole. Memorandum: It being faid in this Cafe, that as to the Charity Money given at Sacraments, the Parfon was not bound to diftribute it amonglt the Poor of the fame Pa- rilli, but might bellow it on any Obje£l of Charity : Cur: I will not now determine this, tho' furely if equal Obje^ls of Charity are to be found within the Parifh, they in Realon ought to be preferred. height on verfus Sir Edvjard height on. ^^^^ '92. I 'HE Defendant Sir Edward Leightons Father mort- in Cafe of a ■^ eased, and afterwards fold the Manor of Dalfley yf 7'^'',"' ^ ^ P . 1 • r> 1 dcvifed to be m the County of Montgomery m Wales, to his Brother the foki,ordevi- Plaintiff, and upon his Death the now Sir Edward [fthc°tviif Leighton {tt \\^ an old Intail created about 200 Years be difputed, fince, and got into PofTellion ; the Plaintiff brought an VriaisTn Eje£]ment which was tried in Wales, and a Verdi6l Favour of paffed for the Defendant upon producing an old Inqui- Equity 'will iition finding the Intail ; but there was no Deed pro- ?"'« ^ per- duced creating this Intail. junaion. The 672 De Term. S, Mtchaelh, 1720. The Plaintift' at Law brought his Bill in this Court, ietting forth that the Writings were all in the Defen- dant's Hands, and praying that they might be produced, and that the Defendant might not fet up a Title under any Trull-Term. Upon which the Lord Corrper de- creed, that the Trial (hould be upon the mere Right in an Ejedlment ; and that no Trull-Term, Mortgage or Leaie fliould be fet up, but that the Defendant fliould make Title only under the Intail. Accordingly it was tried in Shrop/Ijire, where before Mr Baron Price, the now Defendant Sir Edward Leigh' ton had a Verdift ; but the Judge certifying againft it, a new Trial was granted to be at the Bar of the Ex- chequer, which was had, and a Verdi£l for the Plain- tiff: There was afterwards a Trial likewife in the King's Bench, and a Verdi61: again for the Plaintiff. And now on the Equity referved, it was prayed that the Plain- tiff fliould have a perpetual Injunflion with Cofls. Lord Parker: The Plaintiff has no Reafon to com- plain (as he does) of the Inconvenience, that there is no End of Trials in Eje£lments, for the two firfl were found againfl him; but it is true, the two Trials at Bar which were by the Direftion of the Court, being for him, I do not fee what this Court has been doing, unlefs it fliould now grant a perpetual Injunilion. If a Trull Eflate be devifed to be fold, and on a Bill brought againfl the Truflees to fell, the Heir contefls the Will ; after two Trials, the Court will grant a per- '» P''^^^'^- petual Iniunftion. In the Cafe of the Earl of (a) Bath in Chan. ' r o/ • i rr.- i ill 26r. verlus Sherwin the Title was a mere legal one, where Soafterfeve- ^fj-g^ feveral Eieftiiients and five Verdi6ls for the Earl of ral Trials '"_,,, -* , t •^^ i -n r i t • Ejeament, Bath, he brought a Bill oi Peace tor a perpetual Injunc- mtiT^'iJf ^ tion ; the Lord Chancellor Corrper thought this too much Favour of I for the Will, Equity on a Bill of Peace will grant a perpetual Injunflion. De Term. S. Michaelis, 1720. 67^ for him to grant, but feemed to recommend it to the Plaintiff as a Caiife proper for the Hoiii'e of Lords ; and on an Appeal, the Lords granted a perpetual In- junftlon, which I take as a Reverfal of the Lord Cow pers Decree, and as a Precedent in the hlghell Court of what ought to be In this Cafe. Confequently it is very improperly faid, that only the Houfe of Lords in fuch Cafe lliould grant a perpetual Injundion ; for that Houfe on Appeal gives fuch a Judgment as the Court below ought to have done. This Court in direc^linj^ Trials, and ordering Writings to be produced, has been doing nothing all this while, if it cannot grant a per- petual Injun£lion, which really after fo many Trials leems to be for the Benefit of both Parties. As to the Objeftion, that in the Cafe of the Lord ^'i"'^ wi^' Bath verfus Sherwin^ the Lords would not have granted gram a per- a perpetual Injunftion, but for its being an odious Caufe, F^'^.' ^"" tending to Baltardize a noble Perfon after his Death ; where it di- I anfwer, It did not tend to Baftardize the Duke of '^^'}^'^ Albemarle^ but to make him the legitimate Son of Rad- where the ford. However, the principal Cafe is fuch as not in whi^S" its Nature to be intitled to any Favour ; for the De- Verdias are fendant Sir Edward Leighton is contending againft a Pur- dious'in^its" chafe, under which there has been Poflellion for very Nature. many Years, againft a Sale made by his own Father to his Brother, and is fetting up an old Intail of about two hundred Years ftanding to defeat this Purchafe; and if there was not the cleareft Proof imaginable of fuch an Intail, (as poffibly there was not) the Jury were in the Right not to find it. It is certainly an Inconve- nience in the Law, that there iliould be no End of Trials in Eje£lment, and that one Trial in a real Ac- tion (which perhaps may be at a Trial by Nifi prius) fliould be final, when at the fame Time twenty I'rials in Eje£l:ment and at the Bar in Wejiminjler Hall will 8 I not 674 ^^ Term. S. Michaelis, 1720. not be conclufive ; but this cannot properly be urged in the prefent Cafe, when upon the two or three firft Eieftments the Verdi£ls went againll: the now Plalntift', who, had they been conckiiive, muft have been barred. But as to the Cofts in this Court, the PlaintifF Wil- liam Leighton has had Relief by producing the Wri- tings, and preventing the Defendant from fetting up any old Terms; and it does not appear that the Defendant Sir Edrvard Leighton (the Heir of an ancient Family) has fo far misbehaved, as that he ought to pay Coifs ; though he fliall ioie his own Cofts, the Right appearing againft him; but the PlaintifF to have the Cofts at Law for all the Trials. (a) March This Decree was affirmed {a) in the Houfe of Lords V7'°- with 40 /. Cofts. Cafe 193. Attorney General verfus Hudfon, Lord Chan- TwoSchooii (^NE Penning of Saffron Walden in Effex^ and feve- in the fame ^"—^ ral otlicrs fubfcribed to a Charity School there of Frerschooi^ twelve Boys and twelve Girls, which Subfcription was and the other only during the Pleafure of the Benefactors. Penning Schoorlor delighted with feeing thefe Charity Children, declared he Boys and would Icavc them fomething at his Death ; there was devifes'soo^- ^Ifo a Free School in the lame Town, and Penning made totheCha- j^jg -yyjjj aiving COO /. to the Charity School, and feveral nty School; ^ b S / r. T • J J- j tho' both be pecuniary Legacies to his poor Relations, and died. Charity Schools, yet only the Charity School for Boys and Girls ftiall take. The Executors infiftcd on the Want of Affets. Lord Chancellor : Though the Free School be a Charity School, yet the Charity School for Boys and Girls went more commonly by that Name; and as the Tellator I Was lets. De Term. S. Michaelis, l^io. 679 was fond of the Lmer, and declared he would leave them a Legacy, therefore Tljat, and not the Free School is intitled thereto ; lo let the Legacy be brought into Court with Interelt froni the End of the Year after the Teftator's Death : and in Cale of a Deficiency of t rr I n 1 • • J l^cgacv to a Ailets, let all the pecuniary Legacies, as well that to Charity ftaii the Charity ^ as others, abate in Proportion; for though Jo^ttn wl"h the Romans preferred a pious or ch^iritable Legacy to "theri.ega- others, yet our Law does not: They being all but Le- Wco" ai-" gacies, and equally intended by the Teil;ator to be paid. It would be hard that one of them by being preferred Hiould fruftrate all the rell: ; befides the other Legaclej? being given to ieveral of the Lelfator's poor Relations, they are Charities alio. And becauie it is objected, that on the Failing of the Charity School, the Charity ought to revert to the Flounder, therefore in inch Cafe I give Liberty to the Parties to apply again to the Court. Poo/ verfus Sachrjcrcl. cafe 194. Lord Chan- cellor Parker. TN a Rill brought touching the real and perfonal E- Advcnifc- ■*• flate of Sachevcrel deceaied, who had lifue a "n'?"in "the"^ ' Daughter by his iirll: Wife, married to the Plaintiff Pool R"?'''^'" ~ y ' ' Prints that the Qiieltion was, Whether the Defendant who before whoever had been Mr. Sacheverefs Maid-Servant, was married ^^" '^'^'jover ^ and make to him ? legal Proof of the Mar- riage in Qiieftion, {hall have 100/. Reward, adjudged a Contempt of the Court, and the Par- ty procuring it committed. She admitted by her Anfwer, that flie had a Baft.ird by him which was yet living', but before the fecond Child was born ilie pretended file was married to the faid * Vide ante T'ale verfus Aujlin, and Majters verfus Alaftcrs \ but the Spiritual Court gives the Preference to Charity Legacies, and in fuch Cafe Lord Keeper North would not injoin thcni. Vide i yeyn. 2 jo. Fielding verfus Bond. 6^6 De Term. S. Michaelis, 1720. laid Sacheverel, and that they had been married in the Prifon of the Fleet, he by the Name of Robert Mar- Jhal, and fhe by the Name of Anne How Spinfter, and that the Marriage was on the 27th of November 1705. In the Spiritual Court it was adjudged to be a good Marriage, and that Sentence affirmed by the Delegates; but the Daughter claiming Title to a Moiety of the real Eftate, a Trial at Bar was direfted in C. B. where the Marriage was found ; and afterwards the PlaintiiFs Father put an Advertifement into the Daily Conranty intimating, that whereas there was an Entry in the Re- gifter in the Fleet Prifon, of a Marriage there the 27 th of November 1705', in the Words and Figures follow- ing;, {vi-zj) " November il. 1705. Robert MarJJjall o( " St. Martins Lane in St. Martins Parifh, and Mne Hon? " Spinfter:" Whoever fhall difcover and legally prove that the faid two Perfons were then married, and before and at the Time of the Marriage were really called and known by thofe refpe6live Names, fhall have a Reward for fuch Difcovery (on legal Proof of the fame) of 100 /. over and above all legal Charges to be paid by Bdrvard Pool. And it was now moved that Pool fhould be commlt- ed ; it having been formerly mentioned before the Ma- fier of the Rolls, who ordered it to be moved before the Lord Chancellor, as being a Matter of great Moment, concerning on one Side, the Liberty of the Subjedl, and on the other, the Prefervation of Evidence from Suborna- tion and Corruption. The Motion being made before Lord Chancellor, it was by him adjourned to the next Seal, after which at another Day the Lord Chancellor with great Solemnity thus pronounced his Opinion : I This De Term. S. Michae/is, 1720. 677 This tends to the Suborning of WitnelTes, is very dangerous, and not only greatly Criminal, but is a Contempt of the Court, being a Means of prevent- ing Juftice in a Caufe now depending, which is ag- gravated by the Marriage having been pronounced good in the Court of Delegates, and alto a Verdi6l at the Bar of the Common Pleas in it's Favour ; and as the Court may, fo in Juftice it ought, to punilh this Pro- ceeding. It has been objected, that nothing has been done in Confequence of this Advertifement, no Witnefs come in. Refp. It does not appear but that fome Perfon would come in, were this not difcouraged ; however the Perfon moved againft has done his Part, and if not fucceffcful, is ftill not the lefs criminal. ObjeSi. This is not an Offer toTany particular Perfon. Refp. It is equally criminal when the Offer is to any, for to any is to every particular Perfon. I'his Adver- tifement will come to all Perfons, to Rogues as well as honeft Men ; and it is a ftrange Way of arguing to fay, that offering a Reward to one Witnefs is criminal, but that offering it to more than one is not fo : Surely it is more criminal, as it may corrupt more. OhjeB. A Perfon coming In for fuch a Reward is no Witnefs, for that his Teftimony muft be rejedled. Refp. It Is fo of every Witnefs luborned or bribed; he is no Witnefs, if you prove him bribed. OhjeSi. This Matter is now over, (vi^.) the Sentence in the Spiritual Court and the Trial. 8 K Refp. 678 De Term. S. Michaelis, 1720. Refp. It Is not over ; for fuppofe, on the Reward of- fered by this Advertifement, a Dozen Affidavits fiiould come in, proving what it defired may be proved, this would probably induce the Court to grant a new Trial, and might overturn all the Proceedings which have hi- therto pafied. It is a Reproach to the Juftice of the Nation, and an infufFerable Thing, to make a publick Offer in Print to procure Evidence, and is tantamount to faying, that fuch Perfons as will come in and fwear, or procure others to fwear fuch a Thing, fhall have 100 /. Reward; and this in a Caufe now depending here: If lOo/. is to be allowed, the fame Reafon will hold as to the allowing of 500/. or 1000/. And tho' the Intention of the Perfon fo advertiiing may be innocent, (and I, knowing the Man, believe it was fo, infomuch that if a Court may be faid to have In- clinations or Impreffions from thence, I mult own, I Ihould be influenced by my knowing Mr. 'Pool to be an honeft Man : } Yet the Juftice of the Court, nay the Juftice of the Nation being concerned in fo publick a Cafe, I cannot difmifs the Party, tho' his Counfel offer to pay Cofts to the other Side, but in Juftice, and for Example's Sake, he muft ftand committed. Cafe 195. Clifton verfus Burt. A Seifed in Fee of Freehold Lands, and likewife of * fome Copyhold Lands which he had not furren- One dies in- debted by Bond, and gLs a Le- dered to the Ufe of his Will, and indebted by Bond in gacyof which his Heirs were bound, in 1706 made his Will, coo/ unci ■ devifes his whereby he devifed his Freehold Lands to B. in Fee, \o^rs!\X witl^o^^t charging them with any of his Debts and Le- ving a per- 2 gacicS, fonal Eftate fuffi.ient only to pay the Bond ; the Legatee ftiall not ftand in the Place of the Bond Creditor to charge the Land, in regard the Land is fpeciiically devifed j fccm if the Land had defcended to the Heir. De Term. S. Michaelis, 1720. ^^7^ gacies, and gives his Copyhold Lands to C in Fee, m Truft to fell to pay his Debts and Legacies, and havino- given a l,egacy of 500 /. to D. died 'leaving £. his Ex^ ecutor; D. the Legatee of the 5^00 /. brought his Bill for his Legacy; upon which Lord Harcoun decreed, that as to fo much of the perfonal Eftate as was exha'uited by the Bond-Debt, the Legatee of the 500/. ihould ftand in the Place of the Bond-Creditor againft the Land, and that the Freehold Eftate lliould be liable, in Default of perfonal AfTets, to pay the Le^^acy. From this Decree the Devifee of the Freehold Lands now appealed to the Lord Parker, inlifting that the 500/. Legacy being by the Will charged on the Copyhold Eft;)te, and that Fund failing for want of a Surrender the Freehold Eftate which was expreily devifed to an- other Perfon ought not to be liable, and that the Land being Ipecifically devifed, was not chargeable with a ge- neral pecuniary Legacy. Lord Parker, having taken Time to confider of it, re- verfed that Part of the Decree whereby the Freehold E- ftate was fubje£led to the Legacy ; obferving ly?, I'hat tho' Equity will marftial Aftets in Favour of a Legatee, as well as of a Simple Contraft Creditor, yet every Devifee of Land is as a fpecific Legatee, and fhall not be broken in upon, or made to contribute towards a pecuniary Legacy. idly, That it was a Rule, if one gives a fpecific Le- gacy of a Horfe, or Diamond, and alio a pecuniary Le- gacy of 500 /. to B. and there are not AiTets to pay boLh, ft ill the fpecific Legatee ftiall be preferred and have his whole Legacy ; for were the Executor to make him contribute towards the pecuniary Legacy, this- would be, pro tanto, to make fuch fpecific Legatee buy his 68o De Term. S. Michaelis, 1720. his Legacy, agalnft the nianifeft Intention of the Te- ftator. 3^/v, That if a fpecific perfonal Legatee fhall not contribute towards a pecuniary Legacy, much lefs ftiali a fpecific Devifee of Land, 4t/;/y, That if in the principal Cafe the Teftator had devifed the 500/. to A. and a Term of 500 Years to h. without leaving Aflets to pay the 500 /. ftill the fpecific Legatee of the Leafe ought to prevail, with- out contributing towards the pecuniary Legacy; and if fuch pecuniary Legatee fhall not break in upon a fpecific Legatee of a Term, a fortiori fhall he not difappoint the Will as to a Devife in Fee, which is more to be favoured than a Devife of a Term, in regard it is with more Difficulty that a Court of Equi- ty, in any Cafe, breaks in upon, or charges, a real Eftate. ')thly. That this Cafe was ftill ftronger, where the Teftator had appointed a Fund for the Payment of the Legacies, w^. the Copyhold ; and tho' that had failed for want of a Surrender, the Confequence would be, that the Fund failing, the Legacy muft fail alfo. Indeed the Bond Creditor might ele£l^to have his Debt out of the Aftets in the Hands of the Heir, or of the Devifee , but in fuch Cafe the Heir or Devifee ftiould have this Relief, vi^. to ftand in the Place of the Bond Creditor, and re-imburfe himfelf out of the perfonal Eftate. 6thly, But tho' Equity would thus marftial the Ap- plication of AlTets, yet would it not do this to difap- point the Will of the Teftator, by breaking in upon the Deviie of the Freehold which the Teftator did not I intend De Term. S. Michaelis, 1720. 681 intend to charge, but on the contrary fhewed his Dc- iign to charge the Copyhold Eitate therewith. And note. That the decretal Order in the Cafe of (a) (") Vide an- Hern verius Merrick was produced, whereby it appeared, that Lord Harcourt did not then determine this Point, but relerved it for farther Conlideration* tC 201. Hartop verfus PVhitmore. ^"'"^ '^6 O Lord Chiin- cAhr Parker. evi- NE by Will gives his Daughter a Portion of 50c /. One d afterwards the Father marries the Daughter and 1" ^",'"* J I • r U.iuiihter a gives her 300 /. for lier Portion, and lives four Years Portion of after the Marriage of his Daughter, without revoking at°° iard"*^ his Will. in his Life- time gives her 300 /. for her Portion in Marriage, and four Years after dies without revoking the Will ; the Hufband is a Bankrupt ; the Aflignecs not intitled to the 500/. Legacy, nor any Part thereof. \ The Husband of the Daughter becoming a Bank- rupt, the Aflignees under the CommiiTion bring a Bill againfl the Executor of the Father for the 500 /. iniifting, that though the Father had given to his Daughter a Portion, yet he might give her a Legacy alfo, as well as a Portion j and in this Cafe it was to be the rather intended that the Teftator defigned his Daughter fhould have both, becaufe the Portion was lefs than the Legacy. Like the Cafe where a Debtor gives a Legacy to his Creditor which is lefs than the Debt owing to the Legatee, this was never held to go in Part of Satisfaflion of the -Debt; and what made the principal Cafe ll:ill ftronger was, that the Teftator furvived the Marriage of his Daughter four Years, and all that while never thought proper to revoke his Will, which in all Prefumption he would have done, if he had not intended his Daughter Ihould have had both the 8 L Portion 681 De Term. S. Michaelis, 1720. Portion and the Legacy. It was likewife obferved, that by the Statute of Frauds a Will in Writing could not be revoked without Writing; wherefore at leaft the Plaintiff ought to recover 200 /. to make up the Portion tantamount to the 500 /. Legacy. Lord Chancellor, with great Clearnefs; If a Father gives a Daughter a Portion by his Will, and after- wards gives to the fame Daughter a Portion in Mar- riage, this, by the Laws of all other Nations as well as of Great Britain, is a Revocation of the Portion given by the Will ; for it will not be intended, unlefs proved, that the Father deligned two Portions to one Child ; and as to the Objeftion of his having lived fo long af- ter giving the Portion to his Child on her Marriage, without ever revoking that Part of his Will, there could be no Need for the Father to revoke that Legacy which he before had done by giving the Portion in his Life-Time, fince that would be but revoking the fame Will twice. And this Demand is the harder, inafmuch as it is made by the Affignees of the Commiffioners of Bankruptcy againft the Husband; fo that the Wife, whofe Portion this is faid to be, would be never the better for it. Difmifs the Bill with Cofts. Cxk 197. Lord Chan- <.Y//iJr Parker, J. and B. Partners in a Gold- fmith's Trade are bound in a Bond to y. S. A. and B. break ofF the Part- nerfhip and d upon him to ccutors of B, Heath verfus Perchal. ClR Stephen Evans the Goldfmith and his Partner ^ ?ercival, were bound in a Bond to the Plaintiff for the Payment of 1 000 /. and Intereft, and this fo long fince as 1^93, in which Year the Money was employed in the Partnerlhip Trade. In the fame Year Percival I being ivide their Stock ; y. S. the Obligee in the Bond knows this, and that A. took pay the Debts, and after a great Diftance of Time brings a Bill againft the Ex- yet he {J. S.) (hall recover. De Term. S, Michaelis, 1720. 685 being very ill in Health they broke off Partnerfliin, when Sir Stephen Evans, by ready Money and bis own Bond, fecured to Percival his Share of the Partnerfhip Stock, and took upon himfelf all the Partnerfliip Debts, giving his Covenant to feciire Percival from aJl fuch Debts : The fame Year Percival died, leaving one Sa- muel Percival his Executor, and the Defendant his refi- duary Legatee. Publick Notice was given to all the Creditors of tlie Joint-Stock, that they were either to receive their Mo- ney, or to look on Sir Stephen Evans only as their Pay- Mafter. In 1708 the Plaintiff Heath came to Sir Stephen and called in his Money, but then continued it upon Sir Stephens fubfcribing the Bond at 6 I. per Cent. Sir Stephen continued folvent until 1 7 1 1 , and the Plaintiff till that Time, might, when he pleafed, have had his Money. The Plaintiff outlawed Samuel Percival the Executor, and brought this Bill againtt the Defendant Peter Pad- val the Refiduary Legatee, to recover the 1 000 /. and Intereft out of the Alfets of Percival the Co-partner, Sir Stephen Evans having in 1 7 1 1 become a Bankrupt and inlolvent. Obj. This is not a proper Caufe for the Plaintiff to come for Relief in Equity, when he has put an Hardfhip on the Defendant ; he might have had his Money for the Space of Years, during all which Time Sir Ste' phen was in full Credit, but for the Gain of 6 /. per Cent, he has continued his Debt in Sir Stephens Hand, after which Length of Time, and when the Defendant has accounted with Sir Stephen, delivered up all his Vouchers, given a general Releafe, and can have no Remedy againft Sir Stephen (he being a Bankrupt :) now the Plaintiff comes for Aid in Equity againlt him on this I " 684 De Term. S. Michaelis, 1720. this Bond, all which is made ftill harder on the De- fendant's Part, as he was in other Refpedls a great Lofer by Sir Stephens Bankruptcy. Laftly, It was faid that the Plaintiff's altering the In- tereft on the Bond from 5 /. to 6 I. per Cent, was an Alteration of the Security, and confequently the De- fendant no longer liable. Lord Chancellor: The Defendant's Teftator being bound in the Bond, he muft lie at Stake until the Bond be paid, and though the Plaintiff continued the Money on the Bond, this was not material, iince it was upon the Credit of both the Obligors. As to the Notice given by Sir Stephen to the Joint Creditors to bring in their Securities, and that Sir Stephen alone would be hereafter liable, that being Res inter alios aSla could not bind the Plaintiff; and his changing the Intereft did not alter the Security, for ftill it was the Bond of both, but the Defendant could not be liable to more than 5 /. per Cent, for the Arrear of Intereft. Whereupon the Plaintiff had a Decree for his Debt, Intereft and Cofts. Executor in N(7f5 J In this Cafe the Executor in Truft was out- Xdaw^^^ lawed, and a Witnefs proved that he had inquired after, >nd a w'it- but could not find him, which was thought to be a hXlTi^ full Anfwer to the Objeaion that fuch Executor was quired after, not made a Party. and could not find him, not necefiary to make him a Party. I DE 689 D E Term. S. Hillarii^ 1720. Throgmorton verfus Church. In Domo cafe 198. Procerum. TN Debt on Efcape brought by Church agalnft Tljrog' Suing the ■■• morton Sheriff of Bucks^ Church the Plaintiff in C. D. pe.Idinf^T had a Verdift and Judgment, whereupon the Defen- "^'■'.t "f Er- dant ThrogmQrton brought Error in B. R. and one Mead, liament, is an Attorney of Aylesbury was his Bail, but Judgment ^ S^'p"^'"?' being there affirmed, P>ror was brought in the Houie of Privilege. of Lords, and pending the Writ of Error there, Church the Plaintiff below took out Execution againft Mead the Bail, and feifed all his Goods upon a FL Fa. Mead petitioned the Houfe of Lords againlt the Attorney that took out this Execution, alledging it to be a Contempt and Breach of Privilege ; whereupon Counfel were heard before the Committee of Privileges, and objected that this was no Breach of Privilege or Contempt ; becaule the Writ of Error in the Houie of Lords only ifaid all Proceedings upon the Record of the Judgment againil the Principal; whereas the Recognizance given by the Bail was a diifin^t Record ; and if it had been intended to flay Proceedings againil them upon this Record, they muft alfo bring their Writ of Error in Parliament ; it 8 M was 686 De Term. S. Hill. 1720. was compared to the Cafe of two bound in a Bond joint- ly and federally for the fame Debt, in which Judgment is firfl: had agalnft one, and afterwards, in another A£lion, Judgment is alfo obtained againft the other Obligor who brings Error, ftill the former Obligor may be fued upon the Judgment againft him, tho' it be but one Debt ; and if this was a Contempt here, or if Matters were ftaid by Means of the Writ of Error brought by the Defendant in the original A£lion, then Reftitution ought to be made in C. B. where the Fi. Fa. was taken out, and the Goods feifed ; whereas this had been at- tempted, and been fpoke to by Counfel before the Judges of C. B. to whom Complaint had been made of this as of an irregular Execution ; but they held it to be regular, (as Mr. Juftice Tracey himielf informed me J On the other Side it was inlifted, this was a Con- tempt ; that if Execution had been taken out againft the Plaintiff in Error, pending the Writ of Error in the Houle of Lords, it had been plainly a Contempt, and in the prefent Cafe they had in Efte£l been doing the fame I'hing, by taking the very Debt in Qiieftion out of the Pockets of the Bail, which could amount to no lefs than to a taking it from the Principal, who (at leaft by an implied Promife of Law) was liable and compellable to indemnify the Bail ; that the Writ of Er- ror moft plainly fufpended the original Plaintiff's Right to the Debt, it being thereby fub judice whether there was any Debt or not j and it was unrealonable that the Plaintiff below ftiould be allowed to take out Execution for a Debt, before it was determined whether there was any fuch Debt ; for in Cafe the Judgment lliould be reverfed, the Plaintiff" below ought not to have Execu- tion thereon ; and if the Principal was difcharged of the Debt, the Bail muft be fo too, who could only be liable, in Refpe6l of the Debt incurred by his Principal ; and 2 there- De Term S. Hill. 17 20. 687 therefore it was ablurd to iuppole the latter to be in a worle Condition than the former. WTiereupon it was refolved, that this was a Con- tempt and Breach of Privilege, and the Plaintiff's At- torney ordered to make a Reftitution of the Goods, whi. h was accordingly done ; but the Lords, being in- formed that the Judges held it no Contempt at Law, fpared the Cofts in this Cale as to the Attorney who fued out the Execurion, upon his returning to ^^ifM the Bail, all the Goods he had taken from him. Afterwards the Writ of Error itfelf came to be ar- EW»t acainft gued ; where the only Point inlifted upon for the Plain- Jjj ^jf tiff in Error w^s, that this A£lion of Debt on the E- ^<^?« °^ ) Scandahim magnatum for fpeaking 12 Rich. 2. fcandalous Words of a Peer of the Realm, or of any of ^' "■ the great Officers of this Kingdom, the Aflion is to be brought tam pro Domino Rege, qitam pro feipfo, and yet the Party in this Caie recovers ail the Damages. So in (0 13 Ed. I. an Action againil the Hundred upon the Statute of {c) 27 Eiiz -^'^^ ^"^ ^^y ^^^ ^ Robbery, tho' the Party Plaintiff re- c. 13- covers all the Damages, yet is the Adlion to be brought as well on Behalf of the King as of the Party. In Cro. Jac. 134. Waterhoufe xgAus Baxvde, it is laid down as a Rule by the Court, " That where a Statute, pro- I !' iiibits De Term. S. H>IL 1720 691 hibits a Thing and adds no Penalty, an Action lies againrt the Party for a^tir.g contrary to the Prohibition of the Statute, but that it ouyht to be *' tarn pro Domino Rege, quam pro jeipjo, becauie in fuch " Cafe the King is to have a Fine." And if [t be a Reafon why the A£lion ought to be tarn pro Domino Re-- ge, qmm pro [cipfo, in Gale where tlie King is intitled ut a Fine, then luch Rule njult hold in the prefent one ; for here it is a Contempt in the Sheriff, who has taken the Defendant upon a Capias utlagatum, to permit him to elcape, he being the King's Priloner, and taken at the King's Suit, for which Contempt the Sheriff ii, li- able to be fined. Thus according to the Reafon of the Law, this Aifion ought to bs brought tarn pro Domino Re^e^ qitam pro fe- ipjo ; nay, the Cafe feems to be within all thole Reafons which recjuire fuch an Adlion. And now as to Precedents, I fliall cite only two, but thofe fuch as did not p;ifs fub Jikntio, being adjudged on the very Point, where upon a Defendant's being taken on a Capias utlagatum^ and the Sheriff's luffering him to efcape, an Action was brought againft the Sheriff tarn pro Domino Rege^ qttam pro feipjojor that Elcape: To which it w^as cjbjedled, that the Aclion ought to be on- ly in the Name of the Party : Fjut the Objeilion was over-ruled, and the A£lion adjudged to be rightly brought, forafmuch as the Capias tttlagattim was the King's Writ, iifued out at his Suit, and the King to have the Benefit thereof as w^ell as the Party. Cro. Jac. 533. Parkhurfl verfus Rjw^/. I'he other Authority where it was lo adjudged upon the like Debate, is in I Roll. Rep."]^. Barret verfus Winjcomb, and Cro. Car. 560. In the next Place, your Lordfhips will give me Leave to obierve, that the Adion is in Its Natiue a pretty huid 69Z De Term. S. Hill. 1720. hard one, (vi^.) to charge one Man with the Debt of another, to make the Sheriflf refponhble for the Debt of his Priioncr. Indeed there was a Time when the Law in this Point was much more unreafonable than it now is, when it was held, (and for a long Time it was fo held) that where the Sheriff" had fuffered one in Execution to efcape, the Plaintiff", who by his having once taken the Defendant in Execution was at the End of his Suit, could not "^ retake him, tho' fuf- fered by the Sheriff' to efcape: But fince the Law is now conftrued to be otherwife, and the Plaintiff' may again take the Defendant in Execution, unlefs he himfelf con- lented that his Prifoner lliould efcape; it leems pretty hard that in all Events, when the Sheriff" fuff'ers the Pri- loner to efcape, he fliould be charged with the whole Debt ; and it is fo much the harder in this Cafe, where the Priloner had no Eftate either real or perfonal, was quite worn down with Age, and almoft ftarved with Poverty ; belides that he died within a few Days after the pretended Efcape, and had he died in Prilon, the Plaintiff' would not have had the leaff Advantage. The Plaintiff" below has been fo much in Hafte to carve out Satisfaftion for himlelf, that he would not vouchfafe to flay for the Juftice of this Houfe, but pro- ceeded againft the Bail below, and took his Goods in Execution, even pending; the Writ of Error in Parliament, which your Lordihips, with great Juftice, refolved to be a Contempt and Breach of Privilege of this Houfe ; not- withftanding which, the Plaintiff has not thought fit to make the Bail any Satisfaflion for the great Cofts and Da- mage which he put him to by this erroneous Execution. Upon the whole, we humbly infift, that this A6lion for the Efcape of the Prifoner taken upon a Capias ntla- gatum ought to be tarn pro Domino Rege, quam pro fe- 7pfoy \fl, becaufe the Prifoner that is fuff"ered to efcape is I the * Vide Hob. 202. Denied to be Law, i Vent. 4, 269. Do Term. S. Hdl. 1720. 69^ the King's Prifoner; idly, Becaufe by the Sherift''s per- mitting the Prifoner to elcape, the King is damnified as well as the Party ; 3^/y, As by Realbn of the SherifPs fuffering this Elcape, there is a Contempt to the King, as well as an Injury to the Party ; ^thly. For that by this Elcape the Sherift is liable to anlwer, as well a Fine to the King, as the Debt to the Party ; 5//;/y, This Gale is within ail thofe Reaions that require an Action to be brought tarn pro Domino Re^e, qiiam pro feipfo ; and, lajily. Upon the Strength of the Authorities which have been cited to your Lordlhips, we hope tliat this Adion for the Elcape, becaule not brought as well on Be- half of the King, as of the Party, is erroneous, and that therefore the Judgment ought to be reverfed. But on Debate the Judgment was affirmed, and chiefly on the Authority of the Cafe of Moore verfus Sir George Reynolds, Cro. Jac. 619, 610. where in an. A^lion for an Efcape of a Priloner who had been taken on a Capias utlagatum after Judgment, and the Action being brought at the Suit of the Party only, it was ob- jefted that it ought to have been in the tam quam ; but in that Caie the Prothonotaries certifying that the Prece- dents had been both Ways, the Objection was difallowed. o One a I verfus Mead. cifc .99. yit the Rolls. NE feifed of a Real Eftate in Fee, which he had ^"«= '^»^'"g 1 /' 1 1 rr rr \ r T r mortcagcd mortgaged tor 500 /. and pollellea or a Leaie- his Fee-fim- hold, deviled the former to his eldeil: Son in Fee, and p'*-" .^'^'^JV' 1 I 1 • •/' I !• 1 I • I oevifes his gave the latter to his Wife, and died, leaving Debts Lcafehoid to which would exhauft all his perfonal Eftate, except y'J^ff^l'l^^ the Lealehold given to his Wife. to b. and dies, leaving no other Perfonal Eftate. The Dcvifec of tl e Fce-funplc rnuft take it cum enere, and {hall not charge the Leafchold Eftata fpecificaliy devifed with the Mortgage. 8 O The The Qiieftion was, Whether there being (as iifiialj a Covenant to pay the Mortgage Monies, the Leafehold PremiiTes devifed to the Wife iKould be liable to dif- charge the Mortgage ? Ohj. The ferfonal Eftate is the fiatnral Fund fot Debts, and according to the Decree made by his Honour in Sir Peter Soames Cafe, where the Father the Mort- gagor dying inteftate, and leaving a Mortgage upon his real Eftate made by himfelf, the Perfonal Eftate was applied to pay oft" the Mortgage, whereby the youngeif Children Were left deftitute : So by the fame Reafon,- in this Cafe, the Leafehold, though fpecifically devifed to the Wife, yet being Perfonal Eftate, muft be liable! to pay the Debt due by the Mortgage ; efpecially in Favour of the Heir, who other wile would be very flen- del-ly provided for, and In a worfe Condition than his younger Brothers. But the Mafter df the Rolls, after taking Time to con- fider of it, and being attended with Precedents, decreed that as the Teftator had charged his real Eftate by this Mortgage, and on the other Hand fpecifically bequeathed the Leafehold to his Wife, the Heir ftiould not difap* point her Legacy by laying the Mortgage Debt upon it, as he might have done, had it not been fpecifically de- vifed ; and though the mortgaged Premifies were alfo fpecifically given to the Heir, yet he to whom they were thus devifed, muft take them cum Onere, as pro- bably they were intended. That by fuch Conftru£i:ion (a) See the [a] cacli Devife would take Efteft, [yizc) the Leafehold SilfsS? Eftate go to the Devifee thereof, and the Heir enjoy the ante4oj. Freehold, though fubje61: to the Burden with which the Teftator in his Life-Time had charged it ; and this Refolution did not in the leaft interfere w ich that of (*) Ante. Clifton and Birt (/>), becaufe in the latter there was no Mortgage. i D E 699 / D E Term. Pafcha?, 1721. Ho/ditch verfus Alijl. or; 200. Lord Ckatl- T,..-, , . , -, , <■£•.'/;)/• Parker. HE Plaintitt having been one ot the late Direc- q tors of the South-Sea Company, was filed at late Direc- Law for 800 /. he having taken that Sum of the De- ^sluth^^^' Jendant for 400 /. South- Sea Stock, which he had (as Company he affirmed) put into the Siibfcription Books in the Name vvlidfisrc- of one Mrs. Peck^ whereas upon Search in all the Books covered a- it did not appear that there was any Sum whatfoever ^aw ; (W* iet down in the Name of Peck; upon which the De* !'"'''* ^'^^f^ fendant Mifl brought an Action againft the Plain- i„m by the tiff, as for fo much Money received for the Defen- ['"^•'^'^^'^''i dant s Uie, and obtamed a Verdict. The Defendant m;.: releafed the Bankrupt, who, after having given up all parte Jams, j^jg gftate, and fubmittcd to be examined, had yet been ante 6io. n j i -a r^ i- arreiied by a peeviln Creditor. ■ -^ But the Lord Chancellor refufed to grant an Injunftion, faying, there was nothing of this A(3: of Parliament dilclofed in the Pleadings ; or if there was, yet that the AQl was not made in Favour ot the late Directors. However afterwards by Confent, the prefent Truftees of the South-Sea Company paid the Debt in Queftion, out of the Allowance made by the A61 to the Plaintiff Holditcb. Cafe 201. '^^^^' P/^^PP^ C'^on of Sir Conflantine Lord Chan. Phipps) verfus Earl of Anglefea. cellar Parker. aIoTpI- TT^^ Plaintiff married the only Daughter of the late don, though -*- Earl of Anglefea, to whom by the Marriage Settle- ^pdon^S"" nient and the A\'ill of her Father, i 5,000 /. was fe- Contempts, cuted, (f/^.) i2,ooc/. by the Settlement, and 3000/. pardon Con- by the Will, payable at her Age of eighteen or Mar- tempts in riage. The whole was charged on the late Earl's Iri/I? fant Vv^ards Eftate ; but the Settlement and Will being made in °f F ^°"" England, and all Parties living here, the Money was de- . ,,,., ,. , creed to be paid into Court with EnFliffj Intereft, (a) and (i?) Vide Vol, , -\ -, ■' V / II. 88. if'ai- without deduaing the Charge of the Return from ^if ^^'■^"',. Ireland. Bright-well, But the Plaintiff having married the young Lady, without the Privity of the Committee the Lady £//;^^- beth Gayer, to whom ihe had been committed by Or- der of Court, the Lord Chancellor declared, that this did very nearly touch the Honour and Juftice of the Court, and oblerved how very unequal the Laws of the Land 1 were De Term. Pajcha, 172 1. 697 were In making it Felony to fteal my Horfe, and not Fe- lony to inveigle and gain my Daughter without m,y Con- fent; wherefore he ordered all Parties to be examined up- on Interrogatories touching the Manner of gaining the Marriage, and Notice of the Order of Commitment. However the general {a) A£1 of Pardon coming af- (") 7 Gen. terwards, tho' with an Exception "Of all Contempts ^'z"''" '^' *' and Offences for which any Profecution was then de- " pending, and which had been prolecuted at the Charge " of any private Perfon or Perlons :" Ver Cur: This Offence or Contempt ending only in the Punifhment of the Party offending, and not in re- lieving or redrefling the Proiecutor, is pardoned Memorandum, The Lord Chancellor made the like De- termination in the Caufe of Kijjin verfus Kiffin, where a young Infant Girl of great Fortune was committed to the Care of a Tradeiman in London, a Linnen-Draper, after which a younger Son of the Committee married her, and a Woman who had been one of the moft aftlve Inflruments in bringing about this Marriage, being big with Child, and near her Time, the Hearing of the Complaint was put off until fuch Perfon was brought to Bed, and In the mean Time came out an Ad of ge- neral Pardon, which was held to extend to this Offence. So In Dr. Taldens Cafe (who was fufpe£led to have en- couraged the Infant Duke of Beaufort's going from his Committees the Dukes of Grafton and Portland, under whofe Care he had been placed by the Court of Chan- cery) this Offence or Contempr was likewlfe held to be pardoned by the fame Ad. 8 P Do5lor 698 De Term. Pafch^, 172 1. Cafe 202. DoBor Davis's Cafe. Lord Chan- " ."AN Infant Heirefs was committed to the Cuftody of Committee f-\ ta r r it-. of an Infant ^ ■* Dr. Ddvis, who was a Perlon ot a very good E^ Heirefs ha- ^ j. ^ ^.j^^ Courfe of thc Coiirt being that fuch Com- vmg given ^ ' ^ „ . y ^ ^. Recogni- mittee mall enter mto a {a) Recognizance with two ditbneTthat Suretics, conditioned that he fjould not permit or fuffer heihouidnot fjj^ Infant to marry without the Confent of the Court y fantto ma"- Df^ Davis had been already indulged lb far, as that the ry without Coiirt Ordered his own finsle Recognizance to be the Confent , ., . ■, ° iT-\n ofthe Court; taken without Sureties; and now the Doctor petition- the Form of jj^g ^^^^ j-j^g Recognizancc might be made different from this Recog- t5 00 nizance mo- the common Courfe, (^|/:^.} to be bound that the Infant rlTtheln- Heirefs fliould not with the Confent, Privity, or Conni- fantjhaii not vMce of the Doftor be married to any Perfon without 'th"c7m- ^^^ Confent of the Court ; it was urged to be unrea* tntttce's Pri- fonablc that the Recognizance lliould be otherwife pen- Z?coKjeTof^^^j or that an honeft Committee fhould be liable to the Court, the Forfeiture of his Recognizance, or be undone, if a Cafe^of ^ ralli Infant would without the Privity of his Guardian Judge Eyre ^q^\ ^ Marriage; for at this Rate a Guardian, without any verius LiOvd o ' ' j shaftsbury. Default in him, might forfeit his Recognizance ; and Vol. II, 102, ^g j-j^g Court would not in fuch Cafe order the Recog- nizance to be fued, fo to encourage an hoiiefl: Guardian to aft, it would be but juft to have this explained in Manner as delired; efpecially as the Petitioner in the prefent Cafe was a Gentleman of a v^ry good Charac- ter and Eftate. Mr. Talbot contra : The Courfe is to enter into a Re- cognizance not to fuffer the Infant to marry without the Confent of the Court ; and if the Ward, without the Privity or Default of the Guardian, fteals a Match, the Committee is fafe in the Juftice of the Court from having his Recognizance put in Suit; fo that the Doc- tor is now mirtrufting the Jufkice of the Court, whofe 2 fettled ■MM*NhaMH r " [ De Term. Pafcha, 1721. 699 fettled Forms are not to be altered to pleafe the Humour of any Perfon ; befides if the Forms are to be altered in Favour of E)o£lor Davis, they mult by tlie fame Reafon be liable to be altered at the Requeft of any other Committee. With Refpefl: to the Do6lor's Character, furely every Committee is taken by the Court to be a fair and honeft Man, otherwife it would hardly have intrufted him with the Guard ianfliip: But farther, as this is the conftant Form of Recognizances in fuch Cafes, fo is it founded on good Reafon, fince it might be very difficult to prove that the Committee was privy or confenting to the Marriage, though in Fa6l he really were fo. • Lord Chancellor: I would be very tender of alter- Forms of ing the fettled Forms of the Court to fatisfy a ca- Jjj,'; ^o'dl- pricious Humour ; but this Cafe differing in its Circum- «red to gra- itances from the common one, and as I allowed the ^iius Hu-' Alteration of the Form of the Recognizance in Favour "«»"'■. of Mr. Lacy, to wliom I lately committed an Infant Heirefs, fo let this be altered in the fame Manner, (vi^.) That the Infant fliall not be married without Leave of the Court, by the Confent, Privity or Con- nivance of the Committee. D E 700 D E Term. S. Trinitatis^ 1721. Cafe 203. BagToell verfus Dry, Lord Chan- cellor Mac- the Surpiu" •^ ' Eftatc UDto four Perfons equally to be divided be- fonai' Efc'^' tween them Share and Share alike, and made A. B. his to four e- Executor in Truft. One of the four Refiduary Lega- ?eav«>'"/ ^^^s died in the Life of the Teftator, after which the Executor in Teftator died ; and the Queftion being, to whom the of'^the fou^ fourth Part devifed to the Refiduary Legatee (who died dies in the in the Life of the Teftator) fliould belong? Life of the ^ ° Teftator ; his Share, as fo much of the Teftator's Eftate undifpofed of by the Will, {hall go according to the Statute of Diftribution. The Lord Chancellor, after Time taken to confider of it, did this Day deliver his Opinion, That the Teftator having devifed his Refiduum in Fourths, and one of the Refiduary Legatees dying in his Life-Time, the De- vife of that fourth Part became void, and was as fo Cafe of Lord "^^^<^h of the Teftator's Eftate {a) undifpofed of by Bindon ver- fhc Will ; that it could not go to the furviving Reli- Suffefk[znie duary Legatees, becaufe each of them had but a Fourth 96* deviled to them in common, and tne Death of the fourth Refiduary Legatee could not avail them, as it I would Dc Term. S. Trin. 1721. 701 would have done, had they been all joint Legatees, for then the Share of the Legatee dying in the Life of the Teilator, would have gone to the Survivors, (a) ^''] ^ 3°]^- But here the Refidimm being devifed In Common, It 238. was the fame as if a fourth Part had been devifed to each of the four, which could not be increafed by the Death of any of them. His LordJl)ip farther declared, that this Share could not CO to the Executor, he bcin^ but a bare Executor ^f ^''"^ "C^/^' in Trull:, and conlequently, that It muii belong to the PageWoi.li. I'eftator's next of Kin, according to the^ Statute Jerm'lirt^n' of Dillribution, as fo much of the Perfonal Eitatc re- maining undifpofed of by the Will, and that as to this, the Executor was a Truftee for fuch next of Kin " . Lord JVenmans Cafe. ^^^^ '°4. Lord Chan- cellor Parker. ACommillion was granted to enquire of the Ideocy Where the or Lunacy of the Lord Wenman, and upon the fL^^'.^kT Meeting of the Commiilioners, they who had him in ti^c Wir^, their Cullody were delired to produce him, but being p^^,.^"^ "■^' refufed, the Lord Chancellor ni::de an Order for the pro- committed ducing of Lord Wenman. Whereupon after great Delays, d"icing h^m." and after the Lady Wenman his Wife had been ordered to attend, and it alio appearing by Affidavits, that Ihe had been with her Husband, and been inftrumental in removing him from Place to Place, in Order to evade his being produced ; The Lord Chancellor ordered the Lady Wenman to be committed to the Fleet; fiiying it was great Imprudence, as well as Obftinacy In her, not to do what Ihe could ^ Q_ for * See this Cafe cited in Farrmgton and Knightly, Precedents in Clian- rcry 567. But the Report there is not warranted by the Rcgillci's Book". 70Z De Term, S. Trin. 1721. for the producing her Husband, who upon the Ajffida- vits that had been made, could not but be thought a Lu- natick ; for if he were found fo, his Wife muft have the Commitment of his Perfon, and alfo an Allowance made her fuitable to the Eftate and Greatnefs of his Qiiality; and it not being pretended that the Lord JVenman was an Ideot a Nativitate, his Eftate muft be all accounted for, and the Perfonal Eftate would upon his Death without Children, go one Moiety thereof to her. That the taking of this Account would fave the Eftate from Imbezilment, to the Benefit of his Family, and where there was fuch a Prefumption of Lunacy, the Wife, though otherwile under the Power of the Husband, might well be fuppofed to have him under her Power. idly, Bis Lord/hip obferved, that it would be a Scan- dal to the Court, it this Matter, (nii^i.) the Contempt of not producing the Lord JVenman, were not puniftied after fo long Time given for that Purpofe ; alio an In- tolerable Hardfhip, if the Profecutor of this Commif- iion, after fo many Delays and fo long an Expe£lation, fhould be without Remedy ; not to mention the Re- fle^fion it \vould bring on the Juftice of the Court, which his Lordfhip faid fliould not die in his Hands; and though he did this with great Relu6lance, in Refpeft of the Qiiality of the Perfon whom he commit- ted, yet iince the Juftice and Honour of the Court were fo immediately concerned in this Matter, it was of ab- folute Neceifity. Note ; Afterwards a Jury, by Inquilition found the Lord Wenman a Lunatick, and the Cuftody of his Per- fon was granted to his Wife, fhe being diicharged from her Commitment. 2 . The De Term. S. Tr'tn. 172 1. 70 "5 The Duke of Beaufort verfus Berty. cafe 205. Lord Chan- ' I 'HE late Duke of Beaufort by his Will appointed cicsficid. -*- 'James Berty and Doddington Grevill Erquires, Guar- Guardians dians of his two Sons, the prelent Duke and his younger ^AA^l"Sord^- Son the Lord AW Somerfet ; and upon a Petition by the "ig to the Duke and Duchefs of Grafton, and the Duke and i" cv.'a. Duchefs of Portland (being near Relations of the pre- -^"^ 24- have fent Duke of Beaufort and his Brother the Lord Noel, powcr thnu both Lifants) praying that the Lord Noel, who at this f-^'g "'^',^^ Time went to Weflminfler School, might be removed to and arJ^but Eaton, I objected, that the two Gu:irdians being ap- .[(^"Jf^^iV!!" pointed fo by the \\'i\\ of the late Duke, until theie bchnviour, noble Infants fliould come to the Age of 21, were /« occaa'olf ok loco Parentis, and had the parental Authority delegated Snfpidon, over to them by the Father's Will, who, by the Sta- ciiano-n tute of 12 Car. 2. cap. 24. had as much Power to dil- wiiiinter- pofe of the Guardianlliip of his Children, as by the ^ Statute of 3 2 jy. 8. a Man hath to dilpofe of his Lands ; that the two Guardians deiiring that the Lord Noel ftiould continue at Weflminfler School, until he w^as fit to go from thence to the Univerfity ; and this being alio the Delire of his Father the late Duke, it was fubmit- ted, whether the Court would interpofe in this Cafe. That indeed, formerly, when Mr. Grevill one of the Guardians certified that he thought it proper, upon Lord Noeh firft coming to Weflminfler School, and being much indifpofed in his Health, to remove him from thence, and while the two Guardians diftered (the other Guar- dian Mr. Berty being againft his Remo\'al :) it was rea- fonable that the Great * Seal, which has a Superinten- dencv * One devifcd the Giiardianfliip of his Child to lii;; "Wife and A. but if liis Wife fliould many ;ig;un, then the Wife and yl. to Hx upon an- other Guardian : The "Wife tlid marry again, but would not agree with ji. to choofe another Guardian. Refolved, that it devolved upon the Court of Chancery to appoint a Guardian. Br.rcy vcrliis Lord HoLieruefs^ ^rin. 1725, by Lord Ki>{i^. 704 I^^ Term. S. Trin. 172 1. dency over all Infants, fhould interpofe; elfe there would be a Failure in the due Education of the In- fant; but when both the Guardians had agreed that Weftminfter School was the propereft School for Lord Noel, it was hoped the Court would not fend him to Eaton. It was admitted, that in Cafe the Guardians lliould misbehave, the Court might interpofe, upon a Pre- fumption, that the Teftator himfelf would not have intrufted the Guardians with this Power, had he fore- feen they would have abufed it. Upon which Lord Macclesfield, with fome Warmth (oj See the faid that the Guardians were (a) but Truftees, and «/«vV°ver'fus tli^t the Statute, by enabling the Father to devife the Frederick. GuardJanfliip of his Children, did no more than im- power the Father by Will to chuie a different Perfon from him or her that would have been Guardian in So- cage ; a different Perfon than what the Law would have appointed, and to continue that Guardianlhip to a dif- ferent Time than the Guardianfhip in Socage would have continued, (^7^.) until twenty-one inftead of four- teen. But that ftill a Guardian appointed according to the Statute, had no more Power than a Guardian in Socage ; and as the Court could interpoie where there was a Guardian in Socage, fo might it alfo do in a Cafe of a Guardian by the Statute, both being equally Tru- ftees ; that fuppole one Ihould devife Lands to I'ruftees to fell for fuch a Price as they lliould think fit, for Payment of Debts, there could be no Doubt but that this Court, at the Defire of any lingle Creditor might and would interpofe, and order the Eftate not to be fold as the Truftees fhould think fit, but for the beft Price before the Mafter ; and as the Court would in- terpofe, where the Eftate of a Man was devifed in Truft, fo would it a fortiori concern it felf, on the 2 Cuftody De Term. S. Triu. 1 72 1. 70^;' Cuftody of a Child's being devifed to a Guardian, who was but a Perfon intrufled in that Cafe, lince notliing could be of greater Concern than the Education ot Infants, and more efpecially of this noble Lord, in whom the Publick was interefted, and from whom his Prince and Country might jiiftly have Expe£lation?. As to what was faid of a Guardian's being in loco Paren- tis^ the Solicitor General replied, tliat tliere was a Diver- fity betwixt a natural Parent and a Guardian, for that if the latter was for marrying a Ward under his Q_ua- lity, it was moft ufual for this Court to interpoie; but not fo in Cafe of a Father's endeavouring to marry his Infant Child to one beneath him. But Lord Chancellor faid, this Comt Would and had interpofed, even in the Cafe of a Father, as where the Child had an Eilate, and the Father, who was in- folvent and of an ill Chara6ler, would take the Profits, there the Court has appointed a Receiver, as was done in the Cale of Kiffin verfus Kiffin. Likewlfe in An- fwer to the Obje£lion that the Court lliould not Inter- pofe until the Guardians have misbehaved ; His LordJJyip obferved, that preventing Juflice was to be preferred to puni/Jj/ng Juflice ; and that he ought rather to pre- vent the Mikhlef and Misbehaviour of Guardians, than to punHh it when done. That if any wrong This Court Steps had been taken which might not deferve Punilli- ^''^^ '"f*^"^" ment, yet If they were fuch as induced the leaft Suf- Guardians picion of the Infant's being like to fufl:cr by the Con- |on toTf- du6l of the Guardians, (as there were in this Caiej or peft theirBe- if the Guardians chole to make Ufe of Methods that might turn to the Prejudice pf the Infant, the Court would inter pofe, and order the Contrary; and that this was grounded upon the general Power and ]urifdi6lion which it had over all IVuifs, and a Guardianfliip was moft plainly a Truft. 8 R But 7o6 De Term. S. Tr'tn. 172.1. But it appearing that Lord t^ocl was recovered in his Health, and had made a confiderable Progrefs in the School, and that a new Method of inftriifling him might retard his Learning: I'he Court fufpended that Part of the Order which had been before made for removing him from Weftminfler to Eaton, the Lord Chancellor acquainting his Lordlliip, that while he be- haved himfelf well and regularly at Weflminfler (which it was not doubted but he would do) he Ihould ftay there ; but if other wife, the Court would remove him to Baton. Alfo the Guardianfiiip of the Infant Duke being de- vifed to Mr. Berty and Mr. Grcvill, until his Grace fhould come to Age, and it being recommended to the Guardians to take the Advice of the late Duke of Ormond in the Education of the Infant ; I obje6led, that if the Duke of Ormond had been naturally dead, this Reftraint had been at an End ; and it feemed to be the fame, the Duke of Ormond being attainted, which was a Civil Death. Guardians But the Court faid, this fhewed that the Education mcndedTy of ^^^ MsLHt Duke was not to be merely at the Dif- Wiii to aa cretion of the Guardians ; and there being a Difability ^icVofj. 5" in the Duke of Ormond, it devolved on the Great Seal and 7. 5. is gg (j^g general Guardian of all Infants ; wherefore it this'supe'rin- was dire£led that in all Cafes touching the Education of tendency de- ^^ Infant Duke, the Guardians Ihould apply to, and volves upon ' irrri the Great advife vvith, the Duke and Duchels or Grafton, the ^^'" Duchefs being the Aunt of the Infant Duke, and lil^e- wife with the Duke and Duchefs of Portland, who were his near Relations. And Mr. Berty the Guardian de- iiring the Duke might return to Oxford where he had been for fome Time, the Court referred him to the two noble Dukes above mentioned, for their Thoughts upon the Matter. 2 Sandys De Term. S. Trin. 1. 72 1. 707 Lord Chan- cellor Mac- clesfield. Sandys verfus Sandys, ^^^^ '°^' CIR Richard Sandys on his Marriage with Mary the ^ Daughter of the Ludy Rolle, in Confideration of ^f'^^.J;/^/ ^ the Marriage, and of 50CO /. Portion, by Indentures -"d i>«««;n5 of Leafe and Releafe, dated the i ith and i 2 th of A- a Rctl-- pril 1698, fettled Lands of the Vakie of ^^7 /. ^^'^ !j?"47^^,j Annum in the County of Kent, to the Ufe of himfelf fortheraif- for Life, Remainder, as to Part of the Premifles (a- '"§ ^. , mounting to 500 /. per Annum,) to his intcn'ed Wife Portion. for her Life as a Jointure, Remainder to ilie fiil^, isi'c. Son of the Marriage, in Tail Male, Remainder to Truftees for 500 Years, fdns Wafle, in Truft to raife Portions for Daughters, the fame to be railed by Sale or Mortgage, or by Rents, IlTues and Profits, (rv;^.) 5000 /. if but one Daughter, ^coo /, if more than one, and to be paid at the Daughters Age or Ages of twenty-one, or Marriage, if after fourteen, or under, if with the Confent of the Mother and two other Per* fons if then living ; with Power for Sir Richard Sandys to make a Jointure of i 50 /. per Annum on a fecond Wife, and in the Deed there were Lands of 187 /. per Annum in TorkJJ.nre, fettled on Sir Richard and his Heirs. Sir Richard had IfTue four Daughters and no Son by his firfl: Wife, and on her Death married again. The Eldeft Daughter after her Age of fourteen mar- ried the Plaintiff, who brought tliis Bill for the railing of his Wife's 1500/. (being a fourth Part of the 6000 /.) in the Life-Time of her Father. On hearing of the Caufe, the Scantinefs of the Eftate being in- fixed upon, and that it would be greatly detrimental to fell or mortgage the Reverfion in the Life of the Father, efpecially as the Daughters had other Provilions left them by their Grandmother ; and that this Matter of 7o8 De Term. S. Trin. 17ZI. of Truft was entirely in the Difcretion of the Court: It was referred to a Mafter, to ttate the Value of the Eltates comprifed in the Settlement. {a) January ^^ ^ Q^i^^ coming on afterwards (a) before the 20, I72I, tj ^ ' . , -- Lord Chancellor, it was urged on Behalf of the Plaintiff, that the Truft being to raife Portions by Mortgage or Sale, payable at Marriage, if after the Age of fourteen ; and the Daughter having before her Marriage attained that Age, her Portion ought, by the exprefs Words of the Deed, now to be raifed by Sale or Mortgage of the Term ; that the Intention of the Truft was to have the Por- tions raifed fo, as that the Daughters might be preferred in Marriage at feafonable Times, and not wait until the Father's Death, when they might be upwards of forty or fifty, and paft the proper Age for Marriage; that this appeared the more reafonable in the prefent Cafe, forafmuch as the Father had received 50CO /. Portion with the Mother, and was but to add icoo /. to it, which the Intereft of 5000 /. would in a little Time produce, and feveral Precedents in Point were cited, (vi^) Greaves and Maddifon, T. Jones 201. Corbet and {!,) lYcm. Maidrvell, Salk. 159. Gerrard {b) and Gerrard, St any- fv/aVern. fovtl) (c) and Stanyforth, and particularly Lord Allingtons 460. Cafe, where a Reverfion was fold for Payment of Daughters Portions, which fell into Pofleilion within a ihort Time after the Sale. That the mortgaging the Reverfion coiild be no Prejudice to the Father; for whether there was a Mortgage or not, ftill the Portion muft carry Intereft, and the Eftate be charged there- with from the Time of its becoming due. Alfo there being a Provifo in the Deed, that the Portions or any Part thereof (liould not be raifed un- til they became due, this was faid to be an Argument of the Intention of the Parties, that when they be- came due they ihould be raifed. 2 ^ Lord De Term. S. Trin. 1721. 709 Lord Chancellor : The felling or mortgaging Rever- fions feems a great Hardlhip, being in Effefl to ruin a Family, for the railing of Daughters Portions; and therefore I will not go one Step farther, than Prece- dents lliall force me. This Method cannot fail of tempt- ing Daughters toDifobedience towards their Fathers, and encouraging improvident Marriages. Had the Portion been intended to be railed by Sale of the Re\Trfionarv Term in the Father's Life-1'ime, it fhould (and in my Opinion would) have been fo exprelTed. Ry the fame Reafon that a Reverfionary Term may be fold for the railing Daughters Portions, fo may it be for the rail- ing Portions for younger (children by Virtue of the common Claufe in Marriage Settlements to that Purpofe ; which would be ruining an Heir at I^aw for the Sake of younger Children. The Intention feems to have been againft any Sale or Mortgage, until Ilk h Time as the I'ruftees could take the Profits ; the Word [Profits] i1:anding in Oppofition to the W^ords [Sale or Mortgage;] and the Cafe of the Mother's leaving Daughters, which Ihould claim their Portions againft their Father, does not appear to have been within the View of thofe who made the Settlement. But at length (animo relu6iante) His LordJJnp decreed, that the Truifees lliould fell or mortgage a fourth Part of this Term of five hundred Years (fubje£l to the Fa- ther's Power of making a Jointure upon his fecond Wife) for the railing a Portion of i 500 /. and Intereft from the Marriage ; faying that though this was a Mat- ter of Truft, yet fince all the Contingencies had happened, and nothing remained to fufpend the Execution of fuch Trufl of the Term, and it did not evidently appear but that the Parties intended the Portions IhouId be railed out of the Reverfionary Term; therefore he did not look upon it to be within the Difcretion of the Court, any more than in the Option of the I'ruftees, whether they ^ S would ■yio De Term. S. Trin. 1721. would or would not raife the Money ; but faid it was a Thln<^ not to be encouraged. That as to what had been obiefted of the Daughters having other Provifions left them by their Grandmother, he did not think that ma- terial ; for if they had a Right to their Portions by the Settlement, they ought not to lofe that Right by another Relation's Kindnefs in leaving them a farther Proviiion. Cafe 207. Frederick verfus Frederick. Lord Chan- cellor Mao One tor a HP HIS Bill was brought by Leonora Frederick Widow, valuable -*- for the Performance of her Marriage Agreement. Confidera- tion contrads to be a Freeman of London, but dies before he has taken up his Freedom, his Perfonal Eftate (hall be divided as if he had been a Freeman, but his Children not to be City Orphans. Thomas Frederick Efq; Son of Sir John Frederick Knt. late Lord Mayor of London, in January 1674, applied to marry the Plaintift Leonora, one of the Daughters of Charles Marejco, who was an Orphan of the City of London (being Daughter of a Freeman ;) and the Mar- riage being agreed upon between the Relations on both Sides, Sir John Frederick, by Indentures of Leafe and Releafe, fettled diverfe Houles of 330/. per Annum to the Ufe of Thomas Frederick (his Son) for Life, Re- mainder to the Plaintift Leonora his intended Wife for Life for her Provifion, Remainder to the firft, ilfc. Son of the Marriage in Tail Male, Remainder to Truftees for 1000 Years for Daughters Portions if no lifue Male. And by another Deed of the fame Date, the Sum of 6500/. which was Sir John Frederick's Money, and alio 600 /. computed to be the Relidue of the Plaintiff Leo- noras Portion (beyond 5000 /.which Mr. Frederick the Husband was to receive) was alligned over in Trull to be laid out in a Purchaie, and to be fettled on Mr. Fre- I derick De Term. S. Trin. l^li. 711 — — ■ derick the then Intended Husband for his Life, Re- mainder to the Plaintiff Leonora the intended Wife for her Life, with Remainder to the firft, ilfc. Son of the Marriage. Afterwards, and before the Marriage, the Plaintiff Leonora being an Orphan, and confequently the Li- cence of the Court of Aldermen (who are Guardians of the City Orphans) being necelliiry to the Marriage to avoid being liable to Commitment, Application was made to the Court of Aldermen for their Confent : \\'here- upon an Entry was made at a Special Court held the \ »^th oi February 16-4. N*^ 22. " That at this Court I^icence is granted to Leonora Marefco, one of the Daughters and Orphans of Charles Marefco late Ci- tizen and — '■ ■ ■■' of London deceaied, to marry 77;o- mas Frederick Eiq; Son and Heir apparent of Sir jfohn Frederick, Knt. and Alderman, provided that Mr. Common Serjeant do approve of the Settlement made upon the laid Orphan, and lignify the fame to this Court." And the laid Sir John Frederick did there promile and engage, that if the Settlement Ihould not prove fatisfaftory to the Common Serjeant, and to the Court, tliat he would make up and enlarge the fame to the Satisfa61:ion of the Court ; and the laid Mr. Frederick being thereunto required, did promife and en- gage, and the faid Sir John did alio undertake on his Behalf, to take up his Freedom of the City within one Year next enfuing. N° 22. At the fame Court it was agreed, " That when any Perlon not free of the City Ihould addrefs themfelves to the Court, for a Licence to marry any Orphan of the City, that they Ihould be firlt required and urged by the Court to take up their *' Freedom, before the Court would give Conient to fuch Marriage. N^ 2 i( D* 712 De Term. S. Trin. 1711. N° 2 3 . At the fame Court, upon the humble De- (ire of Mr. Thomas Frederick, Son of Sir John Frederick Knight and Alderman of London, and Grocer, being ca- pable of Freedom by Patrimony, but defiring to be admitted by Redemption into the Company of it Is ordered by this Court " That he fhall be admic- " ted to the Freedom of this City by Redemption in " the faid Company of he paying to Mr. " Chamberlain for the City's Ufe 3 ^. 4 flf." Mr. Frederick performed no Part of the Agreement, either in taking up his Freedom, or in laying out the Truft Money in a Purchafe. March 15. 1680, at the Court of Aldermen (N^ 24) upon lome Debate had touching Mr. Frederick, who had married one of the Daughters of Charles Marefco deceafed, and had not taken up his Freedom of the City according to his Promife made to the faid Court, at the Time when he had Licence to marry, whereby fhe, in Cafe fhe furvived him, would not be entitled to the Thirds of his Perfonal Eftate, in like Manner as the Widows of Freemen were; it was by the faid Court referred to Mr. Recorder and Mr. Common Ser- jeant to perufe and confider of the Settlement made upon the faid Orphan ; as alfo the Marriage Agreement, and to fee if the fame were made according to the Direflion and Intention of the Court, and Mr. Fre- derick's Promife, and to certify to the Court how they found the lame, with their Opinions therein. At which laft Court Sir John Frederick iat as Locum Tenens for Sir Patience Ward the Lord Mayor. Mr. Frederick had two Sons and three Daughters, and l>y his Will dated the 20th of May 1718, gave to his eldelf Son John i coo /. to his fecond Son Thomas locc /. i to De Term. S. Triu. 1721. 715 to his three Daughters i ooo /. each, and i o A to his Wife ; and devifed fuch Part of his real Eftate as was iinfettled to his fecond Son Thomas in Tail, but gave the Bulk of his Eftate to his three Grandfons, being the C^hildren of his fecond Son Thomas Frederick; after which the Teftator died. His Widow now brought her Bill, iniifting that her Husband having made the Agreement ut fupra^ for a valuable Coniideration, (vi^.) that of Marriage, and to induce the Court of Aldermen to confent to his marrying their Orphan, he ought to be taken as a Free- man, and in Confequence thereof, his Perfonal Eftate to be diftributed as fuch, (vi^.) The Widow to havf one Third, his Children another Third, and only the remaining Third to pafs by the Will. The Lord Chancellor, after Debate of this Cafe at the Bar, took Time to conlider of it; and this Day (being the 25th of Juguft 172 1) decreed the Perfonal Eftate of Mr. Frederick to be liable to the Cuftom of London, and that he fliould be taken as a Freeman of London, he having for a valuable Coniideration agreed to be- come fuch. The Demand is grounded upon this Rule, that vvjiere one for a valuable Coniideration agrees to do a Thing, fuch executory Contra£l is to be taken as done ; and that the Man who made the Agreement ftiall not be in a better Cafe, than if he had fairly and honeftly per- formed what he agreed to. This is to be taken as a Contra£l made by the Court -of Aldermen with Mr, Frederick himfelf ; and now the Qiieftion is, Whether he fliall by Will give away his perional Eftate, con- trary to his own Agreement ? When Mr. Frederick engaged to take upon himfelt the Freedom of the City, it was the fame as if he had agreed that the Perional 8 T Eftate 714 De Term. S. Trin. 1721. 'Eftate which he might die poffelTed of, fhould go ac- cording to the Cuftom of the City of London^ one Third to his Widow, and another Third to his Chil- dren. Oh]eSi. This is no Part of the Marriage Agreement, there being on that Occalion folemn Deeds, one, a Set- tlement of Lands, and another of Money to be laid out in Lands, faid to he a Provijion for the Wife, in which no Mention is made that the Widow or Children fhould have the Benefit of the Cuftom of London. Refp. It may be admitted that this was the Agree- ment, and all the Agreement that was made between the Parties^ (vi^-) the Relations on the Man's and on the Woman's Side. But ftill there were other Parties to be confulted, who were Guardians of the Infant, as being a City Orphan ; and the Agreement between the Relations could no ways bind the Court of Alder- men, being no more than a bare Propofal as to them. If the Court of Aldermen had been Parties to the A- greement, it had been fomething, but they were not, it was Res inter alios a6ia, and however it might con- clude the Relations, cannot conclude the Court of Aldermen who are Guardians of City Orphans, and without whofe Leave no Man can marry fuch Orphan, under Pain of Imprifonment : When the Agreement betwixt the Relations was brought to the Court of Al- dermen, and laid before them as a Propofal, (for it could be no morej that Court might have reje£led the whole, altered any Part, or have required an Addi- tion to it; and this Matter being before the Statute of Frauds and Perjuries, had the Agreement been by Parol only and without any Writing, it had notwithilanding been good. i But De Term. S. Trin. 1721. 719 But did the Court of Aldermen agree to this Pro- pofal of the Relations made with Regard to the Settle- ment on this Marriage ? No, they did not ; they infifted upon fomethlnj^ farther ; fo that thefe Settlements were an Asreemenc by thole who had no Authority ; Whereas tliey, who had the Authority and were Guardians of the Orphan, did not agree, but made other additional Terms, that Mr. Frederick lliould take upon him the Freedom of London^ in order to entitle his Wife and Children to the Benefit of the Cuftom ; and thefe additional Terms are complied with by Mr. Frederick and his Father Sir John^ i. e. Mr. Frederick the Son and Sir John the Father on Behalf of the Son, do agree that he fhall become a Freeman of London within a Year then next enfuing: Which Agreement being entered among other the Proceedings and Orders of the Court of Al- dermen, and that Court being a Court of Record, is become Matter of Record ; it is as much fo as a Fine would be if levied there ; for it is the Concord between the Parties ; and to prevent every Thing which might look like taking Advantage of Mr. Frederick in gaining this Agreement from him after his Affections were fettled upon the young Lady, therefore Sir John Fre- derick the Father is made Party thereto, and undertakes the Performance on Behalf of his Son. So that there can be no Doubt of the Agreement's being made by Mr. Frederick and his Father, that it was Part of the Mar- riage Agreement, made in Conlideration of the Mar- riage, and of the Court of Aldermen's giving their Confent to Mr. Frederick^ marrying their Orphan, to whom they were a political Guardian ; it appears to have been made upon a full and valuable Conlideration, and coniequently ought as near as may be to be per- formed. But 7i6 De Term. S, Trin. 1721. But it is objeded on the other Side, \fl. That this Agreement is not made for the Benefit of the Wife and Children, but of the Cipy, that Mr. Frederick who was rich by marrying a City Orphan entitled to a confider- able Fortune, and was the Son and Heir apparent of a very wealthy Citizen who had been Lord Mayor, fliouid bear the Bulrden of the City Offices ; which might be for the Honour and Eafe of the City. Refp. This is a ftrange and monftrous Conftru£lion, that while the Court of Aldermen are doing not only an honeft A£1, but an A£1: of Juftice in making Terms for the Benefit of the Orphan, this fhould be inter- preted as Self-Intereft and Knavery, in taking Care to help themfelves to proper Perlons for fupply- ing their burdenfome Offices. If fuch felf-in- terefted and difhoneft View had been entertained by fome of them, ftill the reft could not have been pre- fumed to come into it ; but fuppofing it to have been the Intent of fome of them, it was prefently after- wards forgot, or rather appears never to have been their Intent; for by a fubfequent Order of a Court of Aldermen, where Sir John Frederick the Father was Locum Tenem of the then Lord Mayor, it was taken Notice of, that Mr. Frederick was not become a Free- man, whereby the Orphan Leonora Frederick would lofe her Thirds (which ffiews that the Intent of putting Mr. Frederick to accept of his Freedom, was that his Wife might have her Thirds,) and it was therefore re- ferred to the Recorder and Common Serjeant of the City, to fee what Provifion had been made for Mrs. Frederick the Orphan. ObjeB. The Court of Aldermen referred it to the Common Serjeant to approve of the Deeds of Settle- ment made by Sir John Frederick upon his Son's Mar- t riage De Term. S. Trin, 172 1. 717 riage, and It is to be prefumed, that the Common Ser- jeant did approve of them, which Deeds are laid to be a Provifion for the Wife, but mention nothing of Mr. Frederick's Agreement to take up his Freedom of the City. Refp. It fliould feem as If only the Validity of the Deeds of Settlement J and not the Value of the Efiate fettled, were referred to the Common Serjeant j for as to the Value, the Coutt of Aldermen could as well judge of that as the Common Serjeant ; neither is it proper or ulual for Counfel to give their Opinion upon the Value of E- ftates, which is no Matter of Law. But admitting that both the Validity and the Value of what was fet- tled were intended to be referred to the Common Ser- jeant, yet the Agreement of Mr. Frederick to take up his Freedom, was an additional Part of the Provifion infilled upon by the Court of Aldermen, and fubmitted to by Mr. Frederick. OhjeSi. If the Benefit accruing to the Wife and Children by the Freedom of the City was Part of the Agreement and the Intent thereof, why was there a Year's Time given to Mr. Frederick to take up his Free- dom, which might have been done in a Day? And there being the Delay of a Year, Mr. Frederick might have died within that Year, by which Means the Advantage intended to accrue to the Wife or IlFue by fuch Free- dom, would have been loft. Refp. It might be reafonable to allow Mr. Frederick forae Time to take up his Freedom, but it looks as if he was not determined of what Company he would be free : And as the eldeft Son (or Daughter, if no Son) was provided for by the Marriage Deeds, fo it was not likely that within the firft Year there would be any younger Sons ; lefs likely was it that within fo Ihort a 8 U Time 7i8 De Term. S. Trin. 1721. Time as the firft Year, Mi.Frederick would have differed with his Wife, or have been prejudiced againft any Infant Child. So that if Mr. Frederick had died within the Year, leaving a Will, it had probably been in Favour of his Wife and Child; or if he had died inteftate, his Perfonal Eftate would have fallen to his Wife and Children by the Statute of Diftribution. OhjeB. So great a Length of Time having intervened fince the Marriage, (between forty and fifty Years) and it appearing that the Court of Aldermen did afterwards pay the Refidue of Mrs. Frederick's Portion to Mr. Frederick, it may therefore be prefumed, that this Agreement for Mr. Frederick's taking up his Free- dom was waived. Refp. Who could waive it? The Wife who was a Feme Covert all the while could not, and it cannot be fuppofed that the Children without the Wife wlio were under the Command of their Father, and with whom the Agreement was not made, could waive it, nor is it pretended that they have done fo j and as to th» Mayor and Aldermen, they themfelves neither have nor could waive it, becaufe from the Time of making this Agreement they were but Truftees, and their Releafe would have been a plain Breach of Truft, which would not have barred the Ce/luy que Trufi, nor could it have been available to thofe who were Parties to fuch Breach No Laches of Truft. And as there could be no Waiver, fo could puted to a there be no Laches in the Parties now claiming the Feme Co- Bgngf^t q£ [^Js Agreement ; for as to Mrs. Frederick vert or In- . . font. the Wife, who was to have her Thirds by the Cuftom in Cafe of Mr. Frederick's becoming a Freeman, flie was all the while under Coverture, and the Children the greateft Part of the I'ime Infants. 2 Ol;je^. De Term. S. Trin. 1 721. 719 Ob\e^, But Mr. FredericlCs not being called upon all this Time to take up his Freedom, has occalioned his dying poflefled of a greater Perfonal Eftate than other- wife he would have done. For if he had been called upon to do it, he would probably have laid out the greateft Part of his Eftate in Land, and fo have dif- appointed the Ciiftom. Refp. The Effe£l of this Argument is, that if Mr. Frederick had had Notice or had thought of this, he would have cheated his Wife and Children ; but not having had Notice, nor thinking of it, he has not cheated them. As Matters have been managed, a fair Experiment has been made, what Perfonal Eftate, and to what Value, Mr. Frederick would think fit to die pofTefTed of; what Perfonal Eftate to inveft in Land, and likewife what to keep fublifting at his Death. It had been a harfti Thing (tho' perhaps (a) lawful) for (a) vide Mr. Frederick to have invefted his Perfonal Eftate in S/«i?°« Land, on purpofe to avoid his own Agreement, and verfus difappoint the Cuftom. All that can be fi^id on this ''""^''"' ' Head, is that a Man who, as the other Side fuppofes, would not, if he had thought of it, have kept his Agreement, has not thought fit to avoid it. If a Man covenants, on good Confideration, to lay out a Sum of Money in a Purchafe of Land, to be fettled on himfelf and the Heirs of his Body by his Wife, and he afterwards differs, and falls out with his Children, and declares that they Ihall have no Benefit of this Covenant, and dies before he has laid out the Money, yet a Court of Equity will out of his Ailets decree this Money to be laid out in Land, and letilcd accordingly; nor would it be any Ex^ufe to fay, that if it had been laid out, it would have been an Eftatc- tail in him, which he afterwards might have barred, though 710 De Term. S. Trin. 1721. , , , ■ , -- - -- I - ■ -. - though he could not bar the Eftate-tall till the Mo- ney was laid out, and the Eftate fettled after the Pur- chafe thereof. Oh]eB. As to this Right of the Wife and Children to their Shares of Mr. Frederick's Perfonal Eftate, ftie, or they that would make Title thereto, muft bring themfelves within the Cuftom, and Equity is not to enforce or aid the Cuftom, or to intermeddle with the Matter* Refp. Surely, if there be a Contra£l for a valu- able Confideration, that fuch a one will take up his Freedom, in order to entitle his Wife and Chil- dren to the Benefit of the Cuftom, Equity will en- force the Performance of this as well as of any other Contraft. It is thus Equity every Day relieves againft il/em' 8 ^raud in endeavouring to avoid the Cuftom by (^) Allign- 612. ' ments of Leafes or Perfonal Eftate, which is all in Aid of the Cuftom. OhjeB. If there had been a Suit againft Mr. Frede- rick, to have compelled him to take up his Freedom, and a Decree for that Purpofe, and he had flood obfti- nate, and would not have performed it, this would not have entitled the Widow and Children to their Thirds by the Cuftom ; becauie Mr. Frederick was not a£lually a Freeman. Accordingly, it has been compared to the Cafe ^ where Tenant in Tail made a Mortgage, and covenanted to levy a Fine to the Mortgagee, the Jslortgagee brought a Bill againft the Tenant in Tail, to compel him to levy fuch Fine, which was decreed ; but the Tenant in Tail being obftinate, was iraprifoned for not performing the Decree, and died, there the Mortgagee had no Benefit of the Decree, but loft his z Money, * This was the Cafe of JVea/f verfus Lower, cited 2 Vera. 306. and Piecedents in Chancery 279. De Term. S, Triii. I'jzi. -yn Money, by the IITae in Tail's avoiding the Mortgac^e ; and if the Widow and Children would not have been entitled, though there had been a Decree in their Fa- vour, much lefs can they be To here, where there is none. Refp. 'Tis VTry true, that in Cafe of a Decree aCTainft Tenant in I'ail to levy a Fine, who dies before he has performed the Decree, the Iflue is not bound, becaufe he claims Paramount the Tenant in Tail, and per for- mam Doni; but in the principal Cafe Mr. Frederick is not by this Agreement binding his Iffue in Tail, but his Executors ; and fureiy it will not be faid that a Man cannot bind his Flxecutors. On the contrary, they are bound of courfe without being named, though the Heirs are not. ObjeB. By the fame Reafon that Mr. Frederick fhall in Equity be taken for a Freeman of London by Virtue of this Agreement, fo alio Ihall his Children be Or- phans, and under the Guardianlliip of the Court of Al- dermen, as they would have been, if Mr. Frederick had been aftually free. Refp. The Guardianlliip of a Child is only {a) a Trufi:, i'^) Sec the and no Profit, and therefore not within the Reafon of DuL'^^c/ "° that Part of the Cuftom which entitles the Widow and ^^''"A' -1"^ Children to their I'hirds : Belides, the Guardianfhip '"^''^ '^"'^' only concerns the Court of Aldermen, who by their Non-claim may have barred themfelv^es of their Right, thu' they could not bar the Infants of what belonged to them. OhjeSl. Mr. Frederick's Death alters the Cafe ; for he cannot be made a Freeman after his Death ; and fo the A£t of God makes it impollible that this Agreement (hould be fpecifically performed. 8 X Refp, 722 De Term. S. Trin. 172 1. Refp. It is the Subftance and the chief End of the Agreement, that Equity will enforce, vi^. that the Widow and Children fliould have their Thirds of the Perfonal Eftate, which is not impoffible to be perform- ed. This, tho' Mr. Frederick be dead, a Court of Equity may, and, I think, ought to fee executed. Mr. Fre- derick's unkind Ufage of his Wife and Children (it ap- pearing by the Proofs that never had a Man a more dutiful Wife and Children, nor ever a Wife or Children a more unkind Husband or Father, and not one Wit- nefs being examined on the other Side) plainly entitles them to the Compaffion of tlie Court, as does the ex- treme Severity of the Will, and the very narrow Pro- vilion made for them thereby. 'I'is farther obfervable, that by the Articles of Separation between Mr. Frede- rick and his Wife and Children, they were not to come within fo many Yards of his HouTe, under certain Pe- nalties; and therefore cannot be hhmed ^ for goin^ from the Tcflator in his Life-time^ and in his Old Age, without his Leave ^ and againfl his Confenp, when, by thofe Arti- cles, they were not to come within fo many Yards of his Houfe without a Forfeiture. Upon the whole Matter, Mr. Frederick having upon good Conlideration made the Agreement to become a Freeman of London within a Year, and having furvived that Year, he ihall in Equity be taken for a Freeman, and his Perfonal Eftate diftributed accordingly, vi-xi. one Third to the Wife, another Third to the Children, and the Will to operate only on the dead Man's Third ; the Wife to have the Benefit of her Chamber and Para- phernalia, but the Legacies given by the Will to the Children to be void, they not being given out of the [a] Qiixr. (4) dead Man's Part, but out of the whole Perfonal Eftate, Babnlgm^ and io to be void, unlefs the Children releafe their verfusGmvj- Rjaht to the reft of the Eftate, and abide by the Will. ivoodm the -' ,__,, . Note. 2 J his * See Mr. Fredmck'% Will. De Term. S, Trin. 1721. 725 This Decree was afterwards affirmed in the Houfe of Lords with 200/. Cofts. Cann verfus Caim. ^'^^ '°^' Lord Mac SclafieU. IR Robert Q««hadaWife, and two Sons, William ^^^^ ^^^^ (afterwards Sir William) his eldeft Son, and Thomas relating to (afterwards Sir Thomas) Cann , Sir Robert Cann being feifed alue^il in Fee of divers Manors, Meffuages and Lands, in or where Mat- near Briflol in Somerfet/Jjire, made his Will dated the been exa- 19th of Au^. !58i, whereby he devifed the Bulk of £ "^-f '"^^j his Eftate to his Lady for Life, Remainder to his determined, younger Son Thomas in Tail, Remainder over, and gave ^^(^""'^of only an Annuity of 200 /. per Ann. to his eldeft Son unravelling William, on Condition that he fhould releafe his Right cre«'^A> I Widow ment oi his Debts. ihaii have her Bona • 1 1 1 • •/! • I 1 Ptirapher- The Widow, who was Adminiliratrix, brought naiia, in re- her Bill againit the Heir, to compel him to make g^'^'Jj'^^^ good her Jointure, and to have the Deficiency does not fuf- of the Perional fupplied out 'of the real Affets, and ^^J^^ having Jewels, i^c. which were her Bona Parapher- real Affets ■nalia of the Value of 200/. and upwards, the Qiieftion was, Whether they in the firlt Place, and in Eafe of the real Aflets, Ihould be liable to fatisfy this Cove- nant, lince Bona Paraphernalia were Perional Ertate, and 8 Z ihs 7p De Term. S. Michaelis, 1 71 1. the Rule was faid to be, That all the Perfonal ought to be applied in Exoneration of the real Eftate. Lord Chancellor : I take it, that Bona Paraphernalia are (a) not devifable by the Husband from the Wife, any Abr. 911. more than Heir-Looms from the Heir, fo that the Right "The Court ^f [|-|g -\\j\{q to the Bona Paraphernalia is to be preferred divided as to r i j ' i i i • •» -n • this Point, to that or a Legatee. If the Husband by his Will gives A Specific ^ Leale or a Horfe, or any fpecific Legacy, and leaves or other Le- a Debt by Mortgage or Bond irt which the Heir is hand in tiie bound, the Heir Ihall not compel the fpecific Legatee Place of a j-q part with his Legacy in Eafe of the real Eftate ; but Judgment though the Creditor may (I?) fubje6l this Ipecific Le- ^efe'^^k '^ §^^y ^^ ^^^^ Debt, yet the fpecific or any other Lega- their Satif- tec lliall in Equity ftand in the Place of the Eond-Cre- o/li?p°e"- ^^'^^^^^ ^^ Mortgagee, and take as much out of the real fonai Eftate. AfTcts, iis fuch Creditor by Bond or Mortgage lliall have (h) Precc- taken from his fpecific or other Legacy. Wherefore, dents in ]f r^ Legatee fhall have this Favour in Equity, much 578. more Hiaii the Wife be privileged with relpeft to her Bona Paraphernalia, which are preferred to Legacies. In- deed, were the Rule of Equity otherwife, a fpecific Legatee iliould compel the Application of the Bona Pa- raphernalia to pay any Debt in Favour and Eafe of his Ipecific Legacy. Whereas Bona Paraphernalia are liable only to Debts, and in Favour of Creditors, not of an Heir ; but any Creditors by Specialty are wholly uncon- cerned in this Qiieftion, they being by reaion of their Bonds, ^c. in all Events fecure, which muft make it indifterent to them whether they are paid out of the real AlTets, or out of the Bona Paraphei-nalia ; for ftill they are lure of being paid; and putting the Creditors out of the Cafe, the Bona Paraphernalia Ihall be retained by the Wife. rai^Kftate So the Lord Chancellor denied it to be a Rule, that in all '."'liit"d'ia ^^^^^s ^^^^ perfonal is applicable in Eafe of the real luie of the z Eftate, Real, to the dcfc.iting of any Legacy, De Term. S. Michaelis, 1721. 731 Eftate, for it fhall not be fo applied, if thereby the Payment of any Legacy will be prevented, much lefs where it will deprive the Widow of her Bona parapher" nalia *. Dal (ion verfus Coatpworth. cafezio. •^ -^ Jt the Rolls. T^HE Plaintiff brought a Bill for Relief againft the DeedorWiii -*- Suppreflion of a Deed, by which the Plaintiff's u fuppreflv-d Uncle had fettled a Term in fuch a Manner as that thc^Party^"^' after his and his Wife's Death (which Wife was the De- claiming fendant) without Iffue, the fame was to come to the OceJorWiii Plaintiff for the Refidue of the Term. ^^"^'^ f° hold and en- joy, and the Heir or SupprefTer of the Deed, &c. to convey. The Plaintiff's Uncle was dead without Iffue, and the Defendant the Wife had burnt the Deed. The Defendant by her Anfwer but faintly denied it, (tv^J That jJje did not remember Ihe ever burnt or de- ftroyed the faid Deed. The Witneffes fwore the Limitations of the Settlement to be in Truft for the Husband for Life, Remainder to the Defendant his Wife for Life, Remainder to the Heirs of their Bodies [by one Witnefs,] Remainder to the Iffue of their Bodies [by another,] and for Want of Illue by the Defendant and her Husband, Remainder to the Plaintiff. ♦ Obje£led for the Defendant, that the Limitations of the 1 ruft of the Term being to the Heirs of the Bo- dies of the Defendant and her Husband, or to the If- fue of the Bodies of the Defendant and her Husband, Remainder over to the Plaintiff, fuch a Remainder over of * So decreed by the Lord Chancellor Macde^Jield Ln the Cafe of PuC' keying and JoJjfifcn the fame Term. 751 De Term, S. Michaelis, 172.1. of the Truft of the Term was void in Lawj and therefore fuppoling the Deed to have been fuppref- fed, yet it could not, were it to be admitted, profit the Plaintiff, or make him any Title. But by the Mafler of the Rolls, it is true, where a Term is limited to a Man and Wife for their Lives, Remainder to the Heirs of their Bodies, and for want of fuch IfTue, Remainder over, this Remainder over being but of a Term is void: But on the other Side, a Term may be limited in the following Manner, (vi^.) to Truftees, in Truft for the Husband and Wife for their Lives, and afterwards for their Children, or for their IfTue ; and for want of fuch Children or IfTue living at the Death of the faid Husband and Wife, then to go over to the Plaintiff, and fuch Limitation is good ; now, fince a Term might be limited in fuch Manner, 1 will intend it to have been fo limited in the prefent Cafe, for every Thing Ihall be prefumed in odium I") Vide Spoliator is (a). I Vern. 207 308. Then His Honour confidered in what Manner the Decree fhould be pronounced, and he cited the (^jMoor Q.^^Q jj^ ^^^^ jQ^^ (^y-^ jfj^ j^i^^^ ^^^ j^^j.^ Hunfdon ver- fus Countefs Dowager of Arundel, where the King and his Farmer under him claimed Title by the Attainder of Francis Dacres who was attainted ot High Trealon, and was fuppoied to be Tenant in Tail by Virtue of a Deed not exrant, but vehemently fuipe', His LordJJnp much doubted, whether this Will P^^^^^^n; -', , , 1 J • 11- '' point an Uf« would have been a good Appomtment, had it not been of Land by executed purfuant to the Statute of Frauds ; becaufe wTn ° a when a Power is given to appoint the Ufes of Land by ^"^'i' attcffed ^ r^ T^ J bv two Wit- 9 ^ Ueed ncills not a good Ap- pointment ; becaufe In fuch Cafe by a JVtll muft be intended fuch a Will as is proper to difpofe of Land. So tliough the Words arc, or othtr JVritini in Nature of a Jf-lll. 742. De Term. S. Michaelis 1 721. [a) Vide i)ee(i oj. \^}11^ the Will muft be intended {a) fuch a y^fSvag- one as is proper for the Difpofition of Lqnd ; confe- jiaff,Yo\.ii. qyently fubfcribed by three Witnefles in the Prefence of the Teftator ; for this is within all the Inconveniencies that the Statute of Frauds intended to prevent, and the other Words in the Nature of a Will mean the fame as a Will, which muft therefore be fubfcribed by Witneifes inthe Prefence of the Teftator. But for the Reafons aforefaid it was declared this was a good Will both as to the real and perfonal Eftate. ^^^^^^ Hol/ingpead's Cafe. Lord Mac- clesfield. I jg Partner with B. in the Trade of a Mercer. E^uh^be'" ^' ^^^^ inteftate, and C. his Adminiftrator ing abated brings a Bill in Equity againft B. for an Account of the -7 Execu Partnerftiip Effects. Whereupon the Caufe is heard, and tor or Ad- au Accouut being decreed, the Mafter makes a Report, blrred'^bT ^Y ^hich it appears, that there is nothing due from the Statute of Defendant to the Plaintiff. C. takes Exceptions to the if'they'dT' Mafter's Report, and then dies, and the now Plaintiff" not revive haviug taken out Adminiftration de Bonis non of A. Years; brought his Bill of Revivor to revive thefe Proceed- but not ii-,CTs. after a De- " cree to ac- count. The Defendant pleads the Statute of Limitations, and that above Six Years had paffed after the Death of the firft Adminiftrator and the Plaintift''s taking out Letters of Adminiftration, before the filing of the Bill of Revivor. For the Plaintiff" it was argued, \fl. That the Sta- tute of Limitations was an improper Plea in this Cafe ; that praying to revive was praying to/ftand in the Place of the firft Plaintiff, which the Plaintiff" when he had revived would do, and confequently would not be bar- I red De Term. S. Michaelis 1721. 745 red by the Statute of Limitations, fince it was not pre- tended but that the firft Suit was brought in Time. Secondly^ I'hat a Decree of the Court of Chancery was in Nature of a Jud^^ment ; and it could not be thought a Judgment was within the Statute of Limitations : For even a Specialty was not ; and a Decree, though only to account, was ftill a Decree, i^dly, That there was no Reafon this Cafe ilioidd be taken as within the Statute of Limitations, becaufe the Defendant, in the Cafe of an Account (where each Side are Aflors) if he thought lit, might revive, and fo the Delay of the Plaintift' not to be obje£led by the Defendant in whofe Power it was to have prevented any ill Confequence ariling there- from. Attorney General Raymond contra : It is true, w^hen the Plaintiff has revived, he Itands in the Place of the Plaintiff in the original Bill ; but this Plea is pleaded in Bar of Reviving, and until then the Plaintiff does not Ifand in his Place; and we may well obje£l, that by the Statute of Limitations he ought to have come fooner; to which the Court feemed to incline. As to the fecond Obje£lion, he obferved, that this Decree being only to account, was but interlocutory, and it did not appear by luch Decree that one Farthing was due from the Defendant to the Plaintiff; fo that it effablifhed no Debt, nor was it Evidence of the Plaintiff's having any jufl Caufe of Suit. With regard to the third Objeilion, he admitted either Side mi?ht revive in this Cafe ; but it would be hard to put the Defendant to revive a chargeable Suit againft himlelf, when he might be fatif- fied in his C^onicience that notlring was really due, and here was Room for the Court to intend fo in this Cafe, when the JMaiter, after examining into the Matter, had reported nothing due ; and though by Exceptions ht\wy put in to the Report, fuch Report was fulpended, yet the 744 ^^ Term, S. Michaelis 1721. the Plaintiff lliould not have flept Six Years after the Adminiftration taken out* Lord Chancellor : The Statute of Limitations fpeaks nothing of Bills in Equity, yet thefe are con- ftrued to be within it. The Cafe of not revi- ving a Decree which is only to Account, is within all the Mifchief defigned to be prevented, vi^. to fue a Man after his Vouchers may have been loft, or his Winefles dead. For if the Party may delay Six Years before he revives his Bill, he may by the fame Rea- fon forbear twenty-fix, thirty-fix or forty-fix Years. There can be no Doubt but that if this were only a Bill and Anfwer, and the Suit abated, the Executor muft bring his Bill of Revivor within Six Years, elfe the Suit would be barred. Now the Reafon holds ftill as ftrongly in cafe of a Decree to account, which is in Nature of a Judgment ^od computet ; where, if the Plaintiff had died, his Executor or Adminiftrator could not formerly carry it on, as now by the late Statute he may; and though it may feem a material Objeflion, that when there is a Decree to account, the Defend- ant as well as Plaintiff may revive ; it would however be very hard for Equity to force a Man to revive a Suit againft himfelf at the fame Time that he fwears he owes nothing. Therefore let the Plaintiff amend his Bill, and the Defendant his Anfwer, to bring the Matter more fully before the Court. After which the Defendant died, and one Beecher adminiftring to him, the Plaintiff brought another Bill of Revivor ; whereupon the Defendant Beecher pleaded the Statute of Limitations, and coming to be argued before Lord Chancellor King in Mich. 1727, his Lord- ihip difallowed the Plea, faying that a Bill of Revivor I after De Term. S. Michaelis, 1721. 74^ after a Decree to account, was in Nature of a Sci. Fa. and not within or barrable by the Statute of Limita- tions ; though the Demand leemed to be a very ftale one, and not to be countenanced. Sa'vilc verfus Savile, ^^^^ ^'s- Lord Mac- clesfield. T N this Caufe there was a Decree {inter al.) for the Purchafcrbe- -■- Sale of Halifax- Houfe in St. James's Square to the foreaMafter beft Purchafer before the Mailer, and Thomas Frederick to forfcl"hin Efq; was reported the beft Bidder at 10500/. having Depofit, not made 1 00c /. Depoht. proceed in the Piir- On the Days of JPetitions after Hillary Term it was prayed, that Air. Frederick might compleat his Purchafe, and pay the Remainder of the Purchafe-Money ; upon which Mr. Frederick by his Counfel declared that he ele6led to lofe his Depolit. But the Lord Nottingham Grandfather and Guardian to the young Ladies the Plaintiffs (who were the Daugh- ters and Coheirs of William late Lord Marquis of Hali- fax by Lady Mary Finch) infilled, that Mr. Frederick being the beft Bidder ought to pay the Relidue of the Purchale-Money, and being prefent himfelf urged, that this Contra6l, lince it Was made with the Court in Truft for the Plaintiffs, Could not (as he thought) be difchar- ged upon any other Terms, than Payment of the Reli- due of the Purchale-Money : I'hat had it been the Cafe of a priv'ate Contra£l between Party and Party, and fo much Money paid as Earneft*, there could be no Rea- fon to imagine, that becaufe the intended Purchaler paid fo much by way of Earneft, therefore he fhould be at Liberty to get ofl from the Bargain by loling his Earnelf ; and iurely the Contrail made with the Court was at ieall as ftrongr as if made with the Party : That 9 D if 74^ De Term. S. Michaelis, 1 71 1. if there had been no Depofit, it would hardly have been a Qiieftion but that the Party ftiould have been compelled to pay the whole Purchafe-Money, and could it be imagined that the Contrail was the weaker becaufe there was a Depofit ? This would be inverting the very Senfe and Meaning of the Parties, and to con- ftrue that a Depofit Ihould weaken inftead of ftrengthen- ing the Contraft : That forfeiting the Depofit was fure- ly the moft unequal Way that could be ; for it made no Alteration,whatever the Depofit was, whether greater or fmailer j and therefore in the Cafe of Morrett verfus Bennett ^, where the Depofit was Ten Thoufand Pounds, the whole Depofit was forfeited, and if in that Cafe it had been but One Thoufand Pounds, yet only fo much as had been depofited could be forfeited ; from whence It feemed, that as the Depofit might bear a very great Difproportion to the Value of the Eftate, it could confequently be no proper Meafure of Satif- faction to the Seller, for the Buyer's receding from his Contrail j that as the Seller was bound to fell, fo ought the Tye to be mutual upon the Buyer alfo. Lord Chancellor took notice that more had been urged by the Lord Nottingham than he had ever heard on this Subjeft, but that he had taken good Advice and well confidered before he made the like Order in the other Cafes : That according to his Apprehenfion, a Court of Equity ought to take notice under what a general Delufion the Nation was at the Time when this Contraft was made by Mr. Frederick^ when there was thought to be more Money in the Nation than there really was, which induced People to put imaginary Values on Eftates ; That as upon a Contra£l betwixt 4 Party * Deterniined in this Court fome little Time before: As was alfo the Cafe of Dr. Tennifon verfus Lord Bulkley ; in both which Cafes the bcft Bidders upon lofing their Depofits were difcharged of their Contracts. De Term. S. Michaelis, 1721. 747 iParty and Party, the Contra£lor would not be decreed to pay an unreaionable Price for an Eftate, fo neither ought the Court to be partial to itfelf, and do more up- on a Contract made with itfelf, or carry that farther, than it would a Contrail betwixt Party and Party. On the other Hand the Court midit be faid to have rather a greater Power over a Contrail: made with itfelf than with any other. That the Depofit was fuppofed to be a proper Pledge for fecuring the Seller in cale the intended Purchafer lliould afterwards go off j and had it not been fufii" cient, the other Side might have moved to have fuch Depofit increafed ; but being thought a fufficient Pledge, it was Punilhment enough if the Party that made It was to lofe it, and Satisfaction enough to the Seller, if he was to have the Benefit of keeping the Depofit : That in this Cafe the Depofit Was near a Tithe of the Purchafe- Money ; fo that if the Seller could get as much within i ooo /. of any other Purchafer, he would be no Lofer; and if he could not get fo much within i ooo /. then it would ap- pear to be dear fold ; and confequently a Bargain not fit to be executed by this Court : That the Court had made feveral Orders in Cafes of this Nature, attended with ftronger Circumftances ; as where the Eftates were greatly incumbred, and the Creditors would lofe their Debts if the Bargains did not proceed j but an Hard- Ihip ought not to be decreed againft one, in order to prevent it's falling upon another: And if thofe Orders ihouid be difcharged, whereby others got off from Con- trails by lofing their Depofits, 'it would make great Confufion, and their Money muft be brought again into Court. The belt Way certainly was, for the Court to be uniform in it's Refolutions. Where- 748 De Term. S. Michae/is, 172.1. Cafe 216. Lord Mac- clesfield. Wherefore it was ordered that Mr. Frederick fliould lofe his Depolit of I coo /. and be difcbarged of his Contra£l. Pleydeli JVidoiv and Execu-lpi • -rr^ trix of John Pleydeli, S ^-^ ^ Randolph Pleydeli and ^ £,,f,„i^;;r,. Champneys Pleydeli, ^ Devifeof '~T^HE Plaintiff's Bill {inter al.) was to have the Di* and if ^° die K. re6lion of the Court touching two feveral Sums without of 4C0 /. and 400 /. devifed by the Will of John Pley- IlTue, then , „ , i tt i J to B. this is dell her late Husband. sood, and muft be intended, if yf. die without Ifiue living at his Death. The Cafe was thus : John Pleydeli having no Ifllie by the Plaintiff Elizabeth his Wife, had two Brothers, the Defendants Randolph and Champneys Pleydeli, and by Will dated May 1719 gave all his Money and Securities for Money to the Defendants his faid Brothers in Truft to pay 200 /. to his Wife abfolutely, and to pay the Intc- reft of all the reft of his Money to his A\'ife for her IJfe. After her Death he gave the Intereft of 400 /. Part of the Reiidue, to his Brother Randolph Pleydeli for his Life, then to his firft Son, payable to him until he ihould attain his Age of 21; at which Time he was to be paid the principal Sum of 400 /. But if fuch eldeft Son Ihould die before his Age of 21, then the Teftator devifed the Intereft of the faid 400 /. to the fecond Son of the faid Randolph Pleydeli until his Age of 2 i , and then to pay him the principal Sum of 400 /. and in cafe of his Death before 2 i , to the third, fourth,C5^c. Sons of the faid Randolph Pleydeli in like Manner. He alfo gave the Intereft of another Slim of 40c /. to his I faid De Term. S. Michae/is, 1721. 749 fald other Brother the Defendant Champneys Pleydell for his Life ; and after his Death the Intereft to go to the firft Son of this Champneys until his Age of 21, when the principal Sum was to be paid him; But if it fhould happen that his firft Son ftiould die before his Age of 2 1 , then the Intereft to be paid to the fecond Son of Champneys until his Age of 2 1 , at which Time the principal Sum of 400 /. was to be paid to fucli fecond Son ; but if he fhould die before 21, to the third Son. After which came a Claufe, " That if either of " the faid Teftator's Brothers (the Defendants Randolph " or Champneys Pleydell) ftiould die without Ifllie, in " fuch Cafe his Share was to go to the Teftator's " right Heirs". And the Teftator made his Wife Exe- cutrix and Reiiduary Legatee. The Caufe was heard before the Mafler of the RollSj who decreed, that as to the faid two Sums of 400 /. and 400 /. if the Defendants Randolph and Champneys Pleydell Ihould die without Ifllie living atheir Deathy then the Share of him or them fo dying ftiould belong to the right Heir of the Teftator John Pleydell, and not to the Plaintift^ Elizabeth the Executrix ; but if it ftiould happen that the Defendants Randolph and Champneys Pleydell ftiould die, leaving Ifllie, which IflTue ihould alfo die before the Age of 1 1 , in fuch Cafe thefe Shares ftiould fink into the Refidmm of the Teftator's Perfo- nal Eftate. From this Decree the Plaintiff appealed to the Lord Cljancellor, inlifting that if either of the Defendants Randolph or Champneys Pleydell ftiould die without Ifllie, his 400 /. fliould go to the Plaintiff the Executrix and refiduary Legatee, and not to the Heir of the Teftator jfohn Pleydell; for that the Limitation of this 400 /. to the right Heir of the Teftator after a Death without Iffue, was too remote a Poflibility in cafe of a Limita- 9 E tion 7^0 De Term. S. Michaelis 172 1. tion of Money, for which I cited 2 Vent. 349. Broad' hurfl and Richard/on^ and Love and Windham ?> Cafe, Sid. {a) Vid. 450. as alfo feveral others in [a) Pollexfens Reports. from fol. 24. Lord Chancellor : There is a great Difterence between a Limitation of a Truft of a Term forYears in fuch a Man- ner as that all Power of Alienation may be thereby reftrain- ed, and confequently a Perpetuity introduced, and a Li- mitation of a Truft of a Sum of Money, which may be fubje£l: to more remote Contingencies ; for in the latter Cafe I Ihould think a Bond to pay a Sum of Money upon the Death of A. B. without Iffue of his Body (b) Vid. the ^yQi^^iJ be good (/>), and for the fame Reafon the Truft tury and of Moncy limited upon fuch Contingency would be al- ^bt"' ^"^^ lowed alfo. However, the Provifo in the prefent Cafe muft be taken and underftood of a Death without Ifllie then living, which is the common Meaning of this Ex- preflion. And though in Cafe of a Deviie of Land to a Man, and if he die without Iffue, then to J, S. this would give an Eftate-Tail, vi^. to the Iffue of the De- vifee, and fo fucceilively to the lateft Pofterity, yet fuch Conftru£lion is contrary to the natural Import of the Expreflion, and made purely to comply with the Inten- tion of the Teftator, which feems to be that the Land devifed fhould go to the Iffue and their Iffue to all Ge- nerations. But notwithftanding this, it would be very ftrange to put a forced Conftru6lion upon Words con- trary and repugnant to their ufual Import, and only to defeat the Defign of the Teftator, by fruftrating that Eftate which he intended to give. But whether this Remainder fiiall go to him that is {") vid. (^^^ ^QYP right Heir of the Teftator, or to fuch as /Jjall be ]:>aZ^rs fo at the Time when either of the Defendants Randolph "fcT^^'f and Champneys Pleydell ftiall die without Iffue then living, let the Confideration thereof be refpited till that Con- tingency happens, when it will be proper to make inch Heir a Party to this Bill. Pollen De Term. S. Michaclis I'j zi. 791 Po/Ien verfus Sir John Hub and &f al\ ""''''''' ^ Lord Mac- clesfield. THE Plaintiff was Executor and Devifee in the Equity win Will of the late ^\r John Huband, and received ^"l'^." ^^7' r I '11 1 r - poution ot a the Perlonal, together with the Rents and Profits or Debt, if ob- the Real Ellate ; but in a Suit In Equity touching the ^'j^F^a^d '" jTuld Will, being decreed to be but a Truftee, he was and upon a ordered to account with the Defendant for what he had femitfon?' received of the Trull Eftate, and upon the Account was reported indebted 4000 /. to the Defendant ; afterwards on a,n Appeal to the Lords this Decree was affirmed. Whereupon Pollen ftanding out all Procefs of Contempt, fled beyond Sea, and wliile he was abroad, an Accom- modation was fet on Foot, by which it was agreed that ' Pollen lliould pay a fmall Sum to the Defendant Sir John Hubandj who thereupon was to releafe and indemnify him from the Creditors of the late Sir John Hiiband. After this, Pollen being threatned with Suits by fome of the Creditors brought his Bill for a fpeclfic Per- formance of the Agreement, and that the Defendant fliould, purfuant thereto, indemnify him againft the Creditors of the late Sir John Huband. Obje£led, That there was not lufficient Reafon in this Cafe to extend the Aid of a Court of Equity in Favour of Pollen, who had a6led an ill Part throughout. ift, in fetting up a Title in his own Right, when he was but a Truftee. idly. In turning his Back upon Juftlee and flying beyond Sea. ^ T^dly, In putting the Defendants to Streights and Difficulties, by detaining their juft Debts from them, and then taking Advanta8;e of thofe Difficulties in making them comply and take fmall Sums in Satisfaftion of much greater ; for all which Reafons it was faid to be very proper to leave the 792. De Term. S. Michaelis, 1721. Cafe 21I Lord Mnc- cle^field. Executor cannot bi the Plaintiff" to make the molt at Law of his Com- polition, but not to give him the leaft Aid in Equity. Lord Chancellor: It muft be admitted to have been in the Power of Sir John Buband to make a Compofition of this Demand, and to releafe (if he had fo pleafed) the whole Debt. It was very lawful either for the Plain- tiff" to ask a Compolition, or for the Defendant Sir John Huband to grant it. Wherefore all that Equity ought to ^uard againft is, only that no Fraud be ufed in obtaining the Releafe or Compolition; but this Cafe is ftronger, as it was the Defendant Sir John Huband who firft pro- pofed and delired the Plaintiff to come into the Compo- lition; on the other Hand RatpUns the Agent of 'Pollen put every Thing in a true Light, and the Defendant Buband declared he did not defire to drive the Plaintiff" from his Family and Country. Befides, Pollen having got out of the Reach of Juftice, it might be for the Benefit of the Defendant to accept of this, though a imall Compolition. So that there being a fair Repre- fentation on the Plaintiff's Side, and a juft Compliance by the Defendant, and in a great Meafure executed by the Plaintiff", Let the Defendant Sir John Buband execute his Part of the Agreement and indemnify the Plain- tiff" againft the Debts of Sir John Huband the Teftator. Humphreys verfus Ingledon. • ■ tr (^^-^^ brings a Bill as Executor for the Recovery of fome- a Bill with° ^-^ of the Teftator's Affets, wherein it does not appear thcrcbriiS ^^"^^ ^^ ^^^^ ^"y ^^^y^ proved the Will ; the Defendant as proved dcmurs, in Regard the Plaintiff has not Inewed by his Spiritual ^^^^» ^^'^^^ he has in any Court proved his I'eftator's Will. he has the \Vi the Spi Court; if he 2 Lord docs, this is good Caufc of Demurrer. But it is enough to alledge he has duely proved the Will, without faying in what Court. Sec Cafe 220. De Term. S. Mi eh ae lis 1 72 1. 795 Lord Chancellor: The Plaintiff Is very ftiff, after ha- ving been told of this Slip by the Demurrer, not to amend his Bill, and if he does not prove the Will be- fore he is allowed to proceed here, probably he never will ; now as the Courts at Law never take Notice of a Will, fo as to allow the Executor to fue upon it for any Perfonal Eftate, until he has firft proved it in the Spiritual Court, fo it is very reafonable to obferve the ianie Rule in Equity; Indeed in every other Re- ipeft, faving only as to the Liberty of fuing, the Exe- cutor is compleatly fo, before Probate ; for Inttance, he may affign or releafe, but ought not to be allowed to fue. The Court asked Mr. Goldsborough the Reglfter how the Courfe was as to this Point ? Who anfwered, That the Plaintiff ought to alledge by the Bill that he had ^ duly proved the Will ; but though he did not men- tion in what Court, it would be enough 3 whereupon the Demurrer was allowed. * The Lord Keeper North, when he firft came into this Court, was of Opinion, that a Plaintiff Adminiftrator ought to fhew by his Bill where he had taken out Adminiftration, to the Intent the Defendant might be informed in what Court to look, for it, which might be void, if taken out under a wrong Jurifdiftion •, yet of late the general Allegation of having duly taken out Adminiftration, has been held good, efpeci- ally where (;is on Demurrer) the Caufe is not then to be determined, but the Plaintiff" muft ftiew his Letters of Adminiftration at the Hear- ing. So fiid and determined by the Lord King in the Cafe of Stojie ver- fus Baker, the 13th of Dscanber 1732. ^rfTf, Whether there is any Difterence, as to this Point, between an Adminiftration and an Executorftiip. 9 F Attorney 7^4 ^^ Term, S, Michaelis 1721. Attorney General, at thel Relation of Folkes an a>Appe Hants -^ Battely, j Sutton andPayman, Refpondents, Cafe 219. {In Domo Procerim.) One feifed of frFei'and T"" H I S WHS an Appeal to the Houfe of Lords from being Ce/?uy -*- an Order (a) made by the Barons of the Exchequer, lllunt, by which they allowed the Refpondents Plea to an In- devifes them formation brought for eftablilhing feveral Charities given Life,' Re- by the Will of John Sutton out of fome Lands in Suffolk, h^'^'^ft *°i "^^'herein the Teftator had only the Truft or equitable In- fecondSon tcrell, and out of the Chequer-Inn mBolborn, wherein he '" 7^/' • had the legal Eftate ; all which Charities were to take no fartiTer) "^ EfFcft upou the Death of the Teftator's Nephew Thomas Sutton without IlTue Male of his Body. and afte A:s Death without Iflue Male, then to a Charity. A. is Tenant in Tail until Iflue born, faving as to the Truft Eftate. {a) Feb. lo. 7 Geo. The Plea to this Information was, " That Thomas Sutton the Teftator's Nephew being Tenant in Tail by the Will, had fuftered a Common Recovery, and thereby barred the Charities." The Refpondents claimed under the Recovery; the Appellants under the Charities. And the Qi-ieftion was, whether this Will gave an Eftate-Tail in the Pre- miffes to Thomas Sutton the Teftator's Nephew ? This Cafe was argued at the Lords Bar, on Wed' nejday the 20 th of December 17 21, and on the Will was thus : John Sutton the Teftator, feifed in Fee of the legal Eftate of the Chequer-Inn in Holborn, and only of the z Truft De Term. S. Michaelis 172 1. 799 Truft or equitable Eftate of certain Lands in Suffolk, which he had formerly purchafed in the Name ot his Brother Thomas Sutton, and which on his laid Brother's Death, had defcended to his Son (the Tcllator's l D < . , ^ firftpafs had, tho helhould have lurvived the Term or 9 9 Years; Eftate^the f^t ftiH hc might have charged the Premifles therewith ; fecond not. {q might he have done, though he had ailigned over the I erm ; but having joined in the new Settlement, he muft not now derogate from his own A61:, or undo what he has done before. Onedevifes Then another Qiieftion arofe upon the Will of A. o^aFuLT' whereby he had bequeathed 1000 /. to J. S. out of thefe which fails. Lands ; and it was infifted, that though this might not J^^Slm''"'* be good as a Charge, it ftiould neverthelefs take Effea: as a Cafes, the Legacy, which was not hurt by making an additional le^pS ou^t Security for it ; and therefore if one fliould grant an of the Per- Annuity out of the Manor of Dale, to wliich he had lonal Lltatc, T i i i • i i ^i no 1 itle, though this could not operate as a Charge upon the Manor, yet would it be good as a Grant of an Annuity to charge the Perlon ; for that the main In- tent of the Teftator being to give this Legacy to J. S. the Legatee lliould have it one way or another, either out of the Land or perfonal Eftate. 2 Lord De Term. S. Hill. 1721. 779 Lord Chancellor : Here Is a particular Provifion for this Legacy of looc/. Now it is poflible for a Legacy to be charged in fnch a Manner upon a certain Fund, as that upon its Failing, the Legacy fhall be loll. It is material, that this Bequert is grounded upon a Power, and may be thought no more than the Execution of that Powder, which, if void, muft of courfe be a void Bequeft alfo. It is likewife obfervable, that the Will gives the Relidue to the 'I eftator's eldell: Son : So that to make this Legacy good, the Child who is the Lega- tee, and otherwiie provided for, muft take it away from another Child, and what makes it ftill harder in the principal Cafe is, that the Legacy would by this Means be taken away from an Heir, in order to be given to a younger Child. A Charge upon Land feems not to be fo ftrong as a Gift of a Legacy. But at length it weighed with the Court, that the Value of this Land was fo coniiderable as to amount to 1 000 /. per Ann. and the Deiign appeared to be, to leave the younger Child the two feveral Sums of i ooo /. one charged by exprefs Words upon the perfonal Eftate, and the other upon the Land ; his Lordflnp laying, That if a Legacy was given to J. S. to be paid out of fuch a particular Debt, and there lliould not appear to be any fuch Debt, or the Fund fail, ftill the Legacy ought to be paid, and the Failing of the {a) Modus appointed for (fon, as claiming under Archdale, muft do the fame Thing, which it was incumbent upon Arcfj- dale to have done. Bender De Term. S. Hill. 172 1. 781 Benger verfus Drew, cafe 227. Lord Mac- clesfield. Come Copy hold Lands held of a Weft Country where in a ^ Manor were granted by Copy to the Husband and ^'^"' °^ ^ Wife and J. S. for their ieveral Lives juccejjrci, and fo/t^hree by the Copy it appeared that the Fine paid to the Lord ^'^"' ^'^• of the Alanor was the Money of the Husband and band and Tyjfp Wife and a third Perfun, the Fine was mentioned to be paid by the Husband and Wife: This, there being no full Evidence to the contrary', made the third Perfon only a Truftee for the Husband and Wife, and tl.c Survivor of them. Lord Chancellor : This third Perfon {J. S.) named in the Grant is in Equity to be intended but as a Tru- ftee for the Husband and Wife, and the Survivor of them, by whom the Purchafe Money was advanced, and it being mentioned in the Copy that the Fine was paid by the Husband and Wife, is ftrong Evidence of the Fail's being fo ; which though the Court will not look upon as concluiive, yet any Evidence given to con- trad ift it, ought, in order to prevail, to be very clear and full. Wood verfus Story and Bell. cafe 228. Lord Mac- T^HE Defendant Story was a Qiiaker, and of fo ''^^^''^• -■- tender a Confcience, that he could not prevail 'T,'^^ ^""""^ with himtelf either ta iwear or ;;ffirm. The Plaintiff Qimker to brought a groundlefs Bill agair.ft him to be relieved AnVwel'" touching the Sum of 44/. is. for two Shares in the without Penfikanian Company, of which two Shares the Plain- Affil'm'l^tion tift' was Purchaler ; but it appeared that the other De- ■^'.'^'^'^e t'"^ fendant Bell fold theie Shares to the Plaintiff, and re- ej f^JS^ul ceived of him the Purchale Money. 9 N The 782. De Term. S, Hill. 1721. The Defendant Story was committed for not anfwer- incr ; and now on his Petition to be admitted to anfwer without Oath or Affirmation : Lord Chancellor: Nothing can more pervert Jiiftice than to make a Court of Juftice and the Procefs there- of a Means of Oppreffion ; and whenever that appears to be the Cafe, I will relieve the Party oppreffed. Let the Defendant be difcharged out of Cuftody, and his Anfwer taken without Oath or Affirmation. JSiote ', It was faid that the like Order had been made by the Lord Harcourt in Dr. Heathcote's Cafe. c^f^ "9. Ex Parte Lee. Lord Mac- lesfield. c An Affignee ^ s. petitioned to take out a Commiffion of Bank- of aVa^nk- ^ ' ruptcy agaiuft Lee, and his Debt (amounting to rupt's Notes iqo/J appeared to conlift of Notes made payable by the Value is a Bankrupt to other Perfons who had indorled them to Creditor for .j^^ Petitioner, and to have been bought in by him at the full bums _ ' _ , O ^ • n t of the Notes, iQ s. lu the Pouud j upou which It was objected that out aTom" f^ich Creditor who came by his Debt in this Man- miffion as a ner, was not entitled to fue out a Commiffion. Creditor for fuch full Sums. Sccus, of an Aflignee of a Bond, or where the Indorfment of the Note is fubfequent to the Bankruptcy. Lord Chancellor : Though the Petitioner for this Com- miffion has thus gained the Notes given by the Bank- rupt, yet he is plainly a Creditor, juit as if the Perfons, to whom the Bankrupt before his Bankruptcy gave thefe Notes, had paid an Under-rate for them ; nay, though they had been given without any Confideration, yet I are De Term. S. Hill. 1 72 1. 78^ are they now become his Debts, and the legal Right thereto veiled in the Indoriee. Secus, in cale of an Aflignment of a Bond, foralnnich as fuch Afljgnee, not being the legal Creditor, could not have taken out H Commiflion. Alio, had the Indorfment in the principal Cafe been made after the Bankruptcy, It might be a Qiieftion whether fuch Indorfee would be intitled to a CommifTion; he not being a Creditor for 1 00 /. or capable of taking out a Commiffion at the Time of the Party's becoming a Bankrupt. Acherley verfus Wheeler ^ Vernon, cafc 230 Lord Mac- Tcv r dcsfield. H E Bill was to recover the Intereit or a Legacy ^ ^^^^rr^ of 6000 /. given to the Plaintiff by the Will of other Lcga- her Uncle Mr. Vernon. tooTto his Niece B. at 18 or Marriage, and gives tlie Refidue of his Perfonal Eftate to be laid out in Land and fettled in flridt Settlement on C. for 99 Years, Remainder to his firft Son, k^c. in Tail afterwards A. by Codicil devifes, that the looo/. given by his Will to his faid Niece Hiould be made up 6000/. payable at 21 or Marriage : The Niece was 18 at the Time of the Te- ftator's making his Codicil and under 21. Decreed fhe fhould have the Intereft of the 6000 /. from the Death of the Teflator, and that C. was only intitled to the Rcfiduum exclufive of the 6000 /. - Mr. Vernon., the eminent Chancery Counfel, by Will dated the i7rh of January 171 1, bequeathed to his Sifter's Daughter the Plaintiff" Lftitia Acherley 1000 /, at her Age of 18, or Marriage, which lliould firft hap- pen, and after fome Legacies gave the Refidue of his Perfonal, and all his Real Eftate, to the Defen- dant Wheeler and others, in Truft (the Perfonal Eftate being firft invefted in Land) to fettle the whole on the Defendant Bowater Vernon for C)^ Years, if he ftiould fo long live, Remainder to Trullees during his Life, to prelerve contingent Remainders, Remainder to his firft and other Sons fucceflively in I'ail Male, Remainder over in like manner to the Brother of the Defendant Bowater Vernon. Afc er- 784 D^ Term. S. Hill, 1721. Afterwards, by a Codicil dated the 2d of February 1720, the Teftator appointed that the Portion of 1 000 /. giv^en by his Will to his Niece the Plaintiff Ltetitia, Ihoiild be made up in the Whole the Sum of* 6000 /. and payable to her at her Age of 2 i or Mar- riage, which fhould firft happen, to be in lieu and Satif- fa(3:ion of all fhe might claim out of his Real or Perfo- nal Eftate, and upon Condition that fhe fliould releafe all Right and Title thereunto unto the Executors and Truftees in the Will named. The Teflator died without IlTue, leaving his Sifter Elizabeth Acherley the Plaintift 's Mother his Heir at Law, the Defendant Wheeler and others Executors in Truft, and the Plaintiff L^etitia about 1 8 Years of Age, who now brought this Bill, praying that fhe might have Inte- reif paid her for the 6oco /. until her Age of 2 i or Mar- riage, at which Time ftie was entitled to the Principal. PbjeSl. Intereft Is in its Nature demandable for Non- ' payment of a Thing when due ; whereas this Legacy of 6000 /. is not due until the Plaintift 's Age of 2 1 or Marriage, confequently no Intereft can be claimed until fuch Time as llie would be entitled to the Princi- pal. Farther, by the Terms of the Codicil fhe is to releafe all Right or Title to the Teftator's Real or Per- fonal Eftate, which it does not appear fhe has done, nor has fhe offered fo to do by her Bill ; befides, by the Devife of the Reiidue, the Intereft of the 6oco l. does pafs, which cannot be Debittm in prtefenti, johendum in futuro, as it comes in lieu of the original Legacy of y 000 /. given to the Plaintiff by the Will at her Age of 1 8 or Marriage, which Sum by the Codicil is ordered to be made up 6000/. and notwithftandlng there are the Words added to it, payable at 11 or Marriage^ yet the Legacy by the Codicil ought to follow the Nature of the original one given by the Will, though increafed and I made De Term. S. Hill. 1721. 78, made a greater Sum; for which Reafon till the Princi- pal becomes due, the Intereft thereof belongs to the Refiduary Legatee. On the other Side it was argued, firft that the Legacy of 60CO /. was by the Will and Codicil fevered from the Heap and Bulk of this great Eftate; for after the feveral Legacies given by the Will, the refl and Refidue of the Teffator's Real and Perfonal Eftate is devlfed to Truflees in Truft to be fettled on the Teilator's Coufin Borvater for 99 Years, Remainder to Trulfees during his Life, ilfc. Remainder to his firlt, i!jc. Son in Tail Male fucceffively, ilfc. fo that nothing was intended to hz laid out in Land, but the reft and Reiidue after ail the Legacies paid, confequently this 6000 /. given by Mr. Vernon to his Niece Acher'ey, was never intended to be invefted in a Purchafe, which was faid to be acknow- ledged by Mr. Bowaier Fernons own Anf\\'er. idly. As to the Condition that the Plaintiff fiiould releafe all her Right to the Real and Perfonal Eftate of the Teftator, it was plain ftie could have no Right du- ring the Life of her Mother, who was the Sifter and Heir of the Teftator ; alfo Ihe might marry while an Infant, by which Means her Legacy might become due, and ftie not capable cf releafing, or might intermany with an Infant, and io neither Ihe nor her Husband be capable of releafing, and yet the Legacy due ; where- fore fuppofing it to be a Condition, it could be no more than a Condition fubfequent, ^iwd Cur. conceijit. •i^dly^ It was infifted' that there was a Claufe in the Codicil, which made this Cafe ftill ftronger for the Plaintiff, w^. that the Teftator after all his other Debts and Legacies, " willed that out of the Surplus of his Per- *' fonal Eftate, the Sum of 1 000 /. fhould be put apart " for the Benefit of the Poor of Banbury and Shrarvley, " to be kept as a perpetual Stock for buying Gowns fox ^ O *' poor 786 De Term. S. Hill. 1721 " poor old Men and Women, and Coals and other Fuel " in the Winter." Now this fhevved that immediately on the Teftator's Death it was intended Monies fuffici- ent lliould be fet apart to pay all the Legacies ; for till then it could not be known what the Surplus was ; and even out of fuch Surplus i coo /. .was to be appropri- ated to this Charity, and only the Refidue to be in- vefted in Land, and fettled iit fupra. That fuppofing the Fund out of which this <5ooo /. was to be paid had confifted of Mortgages carrying In- tereft, fince Mr. Borvater Vernon could not have the In- tereft thereof, (as plainly he could not, being entitled to the Litereil of nothing but what was to be laid out in Land,) it followed of Neceffity that the Legatee the Niece ought to have it. And the Cafe of Bourne verfus Tynte, reported 2 Vent. 1546, was on this Occaiion cited as taken from the Regi- fter's Book, being infifted on to be much ftronger than, the principal Cafe ; it was thus : Roger Bourne having Lands of 500 /. per Ann. and a Perfonal Eftate of 8000/. owing to him upon Mort- gages, i^'c. and having no Child then living, by his Will devifed to Sir Hajwell Tynte and others (whom he made Executors) and their Heirs, all his Lands, and Perfonal Eflate fecured by Mortgages, ^c. in Trull to lay out all his Perfonal Eflate, which fliould remain after his Debts and Legacies paid, in the Purchafe of Lands to be fettled on the Teftator's Sons (if any) in Tail, Remainder to his Brother Gilbert Bourne for Life, with Remainder over to the faid Gilbert'?. Sons, iD'c. he deviled, that in cafe the Child his Wife was then bisf withal fhould be a Daughter, fhe to have 1 000 /. to be paid at 2 i or Marriage, and if Ihe fhould marry with Confent, ilfc. then her Portion to be augmented to 3000 /. which Sum fhould be fecured and kept for that Purpofe out of his Mortgage Money, and other I Securities, De Term. S. Rill. 1721. 787 Securities, to be paid her at her Age of 2 1 or Marriage ; his Wife to have the Education of his Daughter, and out of the Intereft of the 3000 /. to receive Zol.per Annum from the Truftees for that Purpofe ; that in cafe the Daughter fliould die before Marriage or 2 i , then her Portion and all Monies fo devifed to her, to be employed for the Benefit of fuch Perfons as were to en- joy his Lands according to his Will, directing that the reil: of his Perfonal Eftate not given or difpofed of by his Will, lliould be all of it laid out in Land and fettled as aforefiid. After the Tellator's Death a Daughter was born, and the Executors for about eight Years paid the Intereil of the 30CO /. above the 80 /. viz^. 100/. ^er Annum to Gilbert the Brother ; but then being better advifed ftopt Payment ; upon which Gilbert the Bro- ther brought his Bill to recover the Interell above the 80 /. per Annum, infifting that the reit of the Perfonal Hftate being all of it to be laid out in Land, this did by exprels Words, or by a neceffary Implication, include all the Intereft of the 3000/. above the 80 /. per Annum: 'I'hat there was a Contingency in this Cafe importing a Condition Precedent, ^7^. That if the Daughter lliould die before 21 or Marriage, the whole 3000/. was to be laid out in Land. But in that Cafe the Lord Chancellor {Finch) de- clared that it was never the Teftator's Intention the 3 coo /. lliould be laid out in Land, or that Gilbert his Brother ihould have any Benefit thereby in cafe a Daughter was born, which had happened ; that Gilbert the Brother's Suit was bpth unnecellary and unkind, in regard he had a very good Eftate in Lands of Inheri- tance from the Teftator who had no Obligation to leave the fame to him : Wherefore his Lordfliip decreed that Gilbert the Brother Ihould repay what he had received, that the Truftees fKould pay the Intereft of the 3000 /. (above the 80 /. per Annum) for the Benefit and Ad- vantage 788 De Term. S. Hi/I. 1711. vantage of the Daughter till 21 or Marriage; and jilto pay the 3000 /. at the Time limited by the Will. Now this Cafe was fald to be ftronger than the prin- cipal one. ift. In that here was an exprefs Proviilon of 80/. per Annum to the Mother for the Education of the Daughter, which might by Implication be thought to exclude the Daughter from any farther Advantage of her Portion, until Ihe fliould come to the Age of 2 i or marry, at which Time the Portion was to become due. Alfo in the Cafe cited the Legacy was not veiled ; but if the Daughter fhould die beiore 2 i or Marriage, then it was to link. Whereas in the principal Cafe there was a veiled Legacy tranfmiflible to Executors, though the Plaintiff Lstitia iliould die before 2 i or Marriage. Again, the Devife there was to a Brother, but here to a remoter Relation, and out of a much larger Fund. The Lord Chancellor, having taken Time to confider of the Gate, declared that the Plaintift L^titia was entitled to the Intereft of the 6000 /. from the Death of the Telbtor, faying. It had Weight with him, that by the Will the loco/. Legacy left to the Plaintift' was given her at 18, but fhe coming to that Age in the legator's Life-time, the Codicil ordered it to be made up 6000 /. yet not to be paid until 2 i or Mar- rhi^e ; fo that though the ailual Payment \\as ifopt until 2 I or Marriage, it was however vefted prefently, and being fevered from the reft of the Eftate, which Refiduum only the Defendant Boivater Vernon was con- cerned in ; therefore the Intereft of the 6000 /. from the Death of the Teftator could belong to none but the Plaintiff" Lmtia : Which was decreed accordingly * * Tills Cafe is mifplaced in Point of Time, not liaving been de- creed till the Trinity Term following. The End of the Firft Volume. A TABLE O F Contained in The FIRST VOLUME. i^liatcntcnt. ON a Plea in Abatement, for Want of proper Parties, it is in the Power of the Court to difmifs the Bill vviihout Pre)udicc, or to give I>cavc to amend on Payment of Cofts. 'Pa^ie 428 On a Bill brought by a Bank- rupt againft the Defendant his luppofed Debtor for an Account, the Allignees under the Comuiiirion were char- ged in a proper Manner, but the Prayer of Procefs was only againft the Defendant; a good Plea in Abatement that the Allignees were not made Parties. 'Page 593 The Reafon why an Edatc is faid to be in Abeyance. 515 In cafe of a Will, 'where the Remainder is devifcd in Con- tingency, the Revcrlion in Fee is not in Abeyance in the mean while, but defccnds to the Heir. ihid. 9 P ^CCl'. A Table of the Prijtcipal Matters. lacciDcnt, See Cafualticsi, account. where an Executor has an ex- prefs Legacy, the Court of Chancery looks upon him but as a Truftcc, and will make him account for the Surplus, though the Spiritual Court has no fuch Power. 'Page 7 Captain of a Ship dies leaving Money on board, intended to be improved in Trade, the Mate becomes Captain, and improves the Money, he is liable to account for the Pro- fits, and not for the Intereft only. 140 In an Account both Parties are Adtors. 263 And may revive. 743 J. is a Goldfmith, and there is mutual Credit betwixt J. and B. and J. becomes a Bankrupt, only the Ballance fliall be liable to the Bank- ruptcy; neither is it mate- rial whether the mutual Cre- dit be by open Account, or mutual ftated Debts. 325 If after a Decree to account an Executor or Adminiftrator does not revive within fix Years, this is not within the Statute of Limitations. 742 Debt againft the Sheriff for an Efcape of one in Execution on an Outlawry after Judg- ment, may be brought either I in the 1'a7u quam or at the Suit of the Party only. Page 687 anemption* Vide Title ie= gacp. anminiffration anti anmiwf- ffcatO?. Vide plus Title ejC= ccuto?. An Adminiftrator fince the Sta- tute of Edii\ I. and before that of Car. 2. had all the Power of an Executor^vand confequentJy was not com- pellable to make Diftribution amongft the next of Kin, but the latter of thefe Statutes direds a Diftiibution. 8, 49 One dies inteftate leaving an Aunt and a Grandmother, the latter is nearer of Kin than the Aunt, and entitled to Adminiftration. 41 Adminiftration committed, tho' contrary to tjie Statute of H. 8. is not void, but void- able. A7 An Adminiftration granted by the Arch-deacon or Ordina- ry, where there are ^ona no- tahilia in divers Diocefes, is merely void. y^y atJ'oanCCment. Vide Refnhij^g T'rnft, &c. under Titlo CfUfr, alfo Title CunoUl of London. Bill will not lie to perpetuate Tcftimony, CJC. beibre Trial, unlcfs A Table of the Principal Matters. unlefs Affidavit be made of thcWitnelTos being infirm and unable to travel. ^Paz^e wj A Peer of the Realm is to put in his Affidavit upon Honour, but his Anfwcr to Interroga- tories and Examination as a Witnefs muft be upon Oath. 146 AVhcrc in an Inferior Court I am fued for a Matter out of the Jurifdidion, if in Vaca- tion Time, a Prohibition may be had in Chancery, on Affi- davit that the Matter is out of the Jurifdidion j but no Affidavit is necclTary where on the Face of the Declara- tion the Matter appears to be out of the Jurifdidion, 476 age. Vide 3!nfnnt. aijitenicnt* On. Cafualties happening be- tween the Articles for a Pur- chafe and the Sealing of the Conveyance, who flrall bear the Lofs. 6\ One articling to leave his Wife 1000/. within three Months after his Death, cannot be enforced in Equity to amend the Security. 107, 460 Where Money is agreed to be laid out in Land, the Party, who would have the fole Intercft in the Land when bought, may (if of Age) have the Money paid to him. 1 30 But a Peifon entitled only to an Eftate-tail in the Land iliall not have the Money, bccaufe of the Remainder- man's Chance. Tage 471 One fettles Lands on Marriage on himfelf and Wife and fiifl: Son, ^c. and makes over Bankers Affignmcnts on the fimic Trufts, and if the An- nuities are redeemed, the Mo- ney to be inverted in Land, and fettled to the flime Ufcsj thefe Annuities fliall go to* the Heir, and not to the Ex- ecutor. 205 One agrees for a valuable Con- fideration to convey Lands to J. .S". and afterwards confcflcs a Judgment to J. N. if the Confideration Money paid by J. .S". be any Ways adequate to the Value of the Land, it binds the Land in Equity, and fliall defeat the Judg- ment ; [ecus of a Mortgag.^ or if the Confideration were not adequate. 277 One agrees before Marriage to fettle certain Lands on his Wife for Life, and afterwards devifcs thefe Lands for Pay- ment of his Debts, the Co- venant is a fpecih'c Lien on the Lands j fectis had it been only an Agreement to fettle fo much ^tr Annui/2^ with- out mentioning any Lands in certain. 429 A Bill in Equity will not lie for a fpccific Performance of an Agreement to transfer South- Sea Stock ; [ecus where the Thing contraded for may bo particularly commodious to the Party. 570 Vide infra Where an Agreevieiit is to he performed in Specie, and where not. Ono A Table o^ the Principal Matters. One for a valuable Confidera- tion contrads to become a Freeman of London^ but dies before he has taken it up ; his perfonal Eftate fliall be divided as if he had been a Freeman, but his Children not to be City Orphans. Tage 710 See Title LoUtiOlt. Jgreement parol-, Statute of Ffatids a7id Ter juries. An Agreement made by the Husband before Marriage, without Writing, that the Wife's Eftate Hiould be all of it enjoyed by her to her feparate Life, is within the Statute of Frauds. 618 One alters a Draught with his own Hand, this is not a Sign- ing to take it out of the Sta- tute of Frauds, though the Seller afterwards executes the Conveyance and (the Eftate being in Middlefex) caufes it 770 to be remftered. JgreemcNt ttjidcr Hand. The Father covenants to fettle an Eftate on the Marriage of his Son, who privately agrees to repay fo much out of it to the Father 5 the Heir be- ing in fuch Cafe under the Awe of his Parent, and fup- pofed not to a<5t freely, E- quity will relieve againft this private Agreement. 121 A Son on his Marriage is to have 3000 /. Portion with 1 his Wife, and privately, and without Notice to his Pa- rents who treated for the Marriage, gives a Bond to the Wife's Father to pay back 1000/. of the Portion feven Years afterwards i this Bond void in Equity, and will not be made better by being afilgned to Creditors. Tage ^96 If on the Confcnt of a Wife and her Truftees, and in or- der to a Compodtion with the Husband's Creditors, the Court orders Part of the Truft-Money to be paid to the Creditors, they confcnt- ing to difcharge him of the Debts; any private Notes, Cjr. taken by any of the Credi- tors for Part of their Debts, beyond their Share with the reft of the Creditors, will be fet afide. 768 See more under Title Mar- riage-hrocage "Bonds. Aire€vie7it itl^en to be performed in Specie, ajid ivhe?2 not. By a Settlement A. is made Tenant for Life, Remainder to the Heirs of his Body by his Wife, and in the fame Deed A- covenants not to fufifer a Recovery, but that the Lands fliall be enjoyed according to thofc Limi- tations; afterwards A. fuf- fers a Recovery and devi- fcs thcfe Lnnds; on a Bill brought for a fpecific Per- formance of the Covenant, it was decreed that the Lands dcvifed A Table of the Principal Matters. devifcd were not affedcd, though the Covenant was good to bind the Aflcts, and fach Covenant being at Hift accepted, Equity ought not to vary or alter it. ''Page 107 See alfo 461 A Y>\\\ in Equity will not lie For a fpcciHc PcrformanGe of an Agreement to transfer South- Si a Stock. 570 Agreemsnt on Marriage. In Marriage Articles to fettle Lands on the Husband tor Life, Remainder to the Heirs or Hfirs MaLeoE bis Body, a Court of Equity will decree the Conveyance to be mcide 111 fl'rict Settlement according to the Intent of the- Parties, {viz.) to the Husband^ for Life, Remainder to the Hi ft ' and every otl'icr Son' in Tail, Cjc. and not dircft an Eftate- tail to the Husband, accord- ing to the legal' Operanon of the Words. 106,143, 25; i, 62 2 Articles and a Settlemeat men- tioned to be made in Pur- fuancc thereof w"re both made before Marriage, but the Settlement varied from the Ufes in the Articles ; de- creed to go according to the Articles. 1 2: . dmcnumcnt* On it Bill brought by the nest of Kin of the Ttftator a- ijainft an Executor for an , Account of the Surplus, the Executor anfwercd and wai- ved the Benefit of the Sur- plus by Miftake of the Law in that Point, and though he afterwards proved it to have been the Teftator's Intent that h'e fh^uld have the Sur- plus, yet denied to amend his Anfwcr. 'Pa^e 300 On a Plea in Abatement for want of proper Parties, it is in the Power of the Court to difmifs the Bill without Prejudice, or to give Leave to amend on Payment of Cofts. 4 : 8 3.nfiB«r, In what particular Cafes the Anfwer of one Defendant fltiail! be rcadagainft another. 300 Vide alfo' Title ;!Sl)iDcitte» On a Bill brought by the next of Kin of the Tcliator a- gainft an Executor for an Account of the Surplus, tlic Executor anfwercd and wai- ved, the Bffnefit of the Sur- plus by Miftake of the Law in that Point, and though he afteirvwands proved it to bo the Teliator's Intent that he fliould have the Surplus, yet denied to amend his Anfwer. ibiid. After a. Decree Nifi Caufa a- gainft an Infant, on fuch In- fant's coming of Age, and before the Decree made ab- folute, ha may put in a new Anfwer. 504 rl. while beyond Sea fues ®- ar Liuv^ 'B. brings, his Bill a- 9 Q. grtinft A Ta B l E of the Prmcipal Matters. gainft A. the Court will or- der, that Service on Ah At- torney fliall be good Service, but not that fuch Attorney fliall put in an Anfwer with- out Oath. "Page 5 23 ()n. If the Defendant were in an Enemy's Country, where no Commilfton could go to take the Anfwer. ihid. $lnmiiti>. where an Annuity is payable half-yearly, (ivz.) at Lady- day and Michaelmas., and the Annuitant dies on Michael- mas-day., but after Sun-fet, his Executors fhall have the half Year's Arrear of fuch Annuity. 179 Exchequer Annuities mortga- ged may be fold upon No- tice without a Foreclofure. 261 Where the Arrears of an An- nuity or Rent-charge fliall • carry Intereft, and from what Time. 541 One devifcs an Houfe to his Coufin, direding that an An- nuity of 1 200 /. per An7ium fliall be paid to her, and that flie fliall maintain her Son there ; the Son chufes to go from her, ftill the Coulin fliall have her Annuity in the fame Manner as if the Son had died. 604 On the Plaintiff's Petition to rc-hcar, the Caufc is open as to the whole and every Part of it with Rcfped to the Defendant ; while as to the Plaintiff it is open only with Regard to thofe Things which are complained of in the Petition. 'Page 300 No Words in a Grant from the Crown can deprive a Subjetl of his Right to appeal ,• much Icfs if the Grant be filcnt in that Particular. 329 An Appeal lies from a Decree in the Ille of Man to the King in Council. ihid. appointment* Sec more Title Potuer anO 'Dzz'^. An Appointment of an Annuity to be paid out of an Office, if voluntary, is counter- mandable. 101 Slppo?tionmcnt. See aucrniyf, alfo Rent* articleis* See agreement. UlTent anu Confcnt* See le^ gacp* Executor compellable in Equi- ty to give his Alfent to a Legacy. 287 ^ffetjS. Sec more under Title Heir and Executor. A. by Will devifes Land to Truftecs and their Heirs, in Truft that the Profits fliouid be equally divided between his Wife and Daughter (the Heir A Table ^f the Principal Matters. Heir of the Tellator) during the Wife's Life, and after her Death he dcvifes the fame to the Ufc of his Daughter in Tail, with Re- mainder over J the Daughter dies without Ifl'uc and Intc- llate during the Mother's Lifcj refolved by all the Judges of C. B. (to whom it was re- ferred out of Chancery) that the Mother and Daughter were 'j'enants in Common, and that the Mother fliould have a Moiety of the Prorits during her Life \ the other Moiety by the Statute of . Frauds and Perjuries to go to the Adminiftratrix of the Daughter, and be Aflets in her Hands, as before that Statute it would have been liable to Occupancy. 'Page 34 The Husband borrows Money, and he with his Wife levies a Fine of the Wife's Lands as a Mortgage for it, after which the Husband gives Legacies ai'011 niiQ ircmc. Executors, in Equity as well as at Law, may prefer any Creditor in equal Degree, or after on Aiftion at Law brought by one Creditor, may confefs Judgment to another. 2^5 I Where a Feme Sole feifed mortgages, and marries B. and the Mortgage is afligncd to B. who in the AlTignment covenants to pay the Money, and dies, his perfonal Aftcts arc not liable in Equity to pay the Mortgage Money. Tage 348 A Mortgage comes to an Exe- cutor who receives the Mo- ney due thereon, and pays it away to his Teftator's Cre- ditors ; and then it appears that the Mortgage has been already fatisfied i the Execu- tor muft refund tho' he had before paid the. Money away in Debts, which there were notothcrwifeAlTets tofiitisfy. 355 Jjfets mcirfljaWd^ and iji what Order T)ehts are to he paid. Where a Husband receives Mo- ney, which by his Marriage Articles was covenanted to be laid out in Land and fettled, and afterwards mifapplies it, his Aflets are liable to make good this I.ofs, not as a Breach of Truft, or as Money received and miftipplicdj but as a Debt by Specialty. 151 One feifed in Fee owes Debts by Bond, and deviles Lands to his Heir in Tail, and gives feveral Legacies, after which he dies, leaving the Heir his Executor ; the Heir with the perfonal Eftate pays off the Bond- Debts, by which Means there are not Aflets to pay the Legacies j the Legatees bring A Table of the Principal Matters. bring their Bill, praying to ftand in the Place of the Bond- Creditors, and to be paid out of the Land devifed to the eldeftSon. The Court held the Legatees to be with- out Remedy, the Land being (fpecifically) devifed in Tail to the Heir; other wife had the Land defcended to fuch Heir in Fee, ^Page 201,678,730 So tho'thc Court will marlhal the Artcts in Favour of a Simple Contract Creditor, and (generally fpeaking) in Favour of a Legtitee, yet * where fuch Legatee is a pe- cuniary one, he will not bo relieved, by being permitted to come in the Place of the Bond - Creditors upon the Land in the Hands of a De- vifee thereof. 204, 678 ' See alfo Specific LegcKj. A Recognizance not inrolled or not legularly taken fliall be looked upon as a Bond, and paid as a Debt by Specialty. 336. 340 One gives Legacies by his Will, and other Legacies by his Codicil, charging his Lands only with the Legacies in the Will ; on the perfonal Eftate's being infufficicnt to pay all the Legacies, the Lands fhali be charged with the Legacies in the Will, and the Legacies in the Codicil be paid out of the perfonal Eftatc. 422 Where one devifcs his Lands for Payment of Debts, Bonds and Simple Contra^ Debts fliall be paid equally; but if he only charges his Lands with the Payment of his Debts, letting them defcend fubjcift thereto, the Bonds fliall be preferred. 'Pngg 430 But if the Heir fells the Land before Action brought, then both to be paid equally. 43 r See alfo Tit. €)ccaritirs aiiD /Ijfets hj 7}efcc7it and in tie Hands of the Har. One feifed of Lands in Fee binds himfelf and his Heirs in a Bond, and dies, having devifed his Lands to J. S. in Fee; in a Bill brought by the Obligee to fuhjedt the Land devifed, the Devifor's Heir muft be made a Party. ^9 One feifed in Fee mortgages to A. and afterwards binds him- felf and his Heirs to J. and dies ; if the Heir comes to redeem this Mortgage, he muft pay the Bond- Debt as well as the Mortgage. 775 An Heir in Aiftion brought on his Anceftor's Bor.d muft bo fued as for his own Debt in the "Ddm O' TJttiMtt. 776 See alfo 'J'lt. ^cnrvatJC, Ec- Ucmption, JTo^ccIoftirr* Debts due to a Feme Sole, who afterwards marries, and her Husband becomes a Bankrupt, arc, though un- recovcred, afTignable by the CommilTioners, by the 4 cji' 5 Jnn. cap. 17. 249 la A Table oj the Principal Matters. In like Manner Debts due to the Wife dinn foJa^ though unvecovcrcd, arc, on the Huf- band's Bankruptcy, aflignable by the Conimiirioners. Tnge 249 Sec alfo Tit. Xaron nnti J^rmr» A Son on his Marriage is to have 3000/. Portion with his Wife, and privateJy and without Notice to his Father or Mother, who treated lor the Marringc, gives a Bond to the Wife's Father to pay • back I coo/, of the Portion fcvcn Years aftei wards, and the Obligee alfigns the Bond to a Creditor ; the Bond being void in l^quity, fuch AHign- ment flrall not make it good. See alfo Mnrriogc -brocage TjOJids. One having a Bond receives the Money due upon it, and afterwards affigns it for a valuable Conlideration as unratiblicd to another, a Pur- chafer can have no avail of this Bond. 497 A Devifee in Remainder of a Term articles for a valuable Confideration to fell it, this is a good All; gn men t in E- quity, and the Devifee in Kemainder is afterwards but a Truftee for the Purchafer. • 5 74 Sec alfo Tit. IpOflibilit)), and attai'nticr. An Attainder of Major General Thomas Qordoji, Laird of AnchingtouU^ will not ex- tend to attaint the Party, if his Name be AUxander s\x\6. not Thomas^ tho' the Reft of the Defcriptions agree. ^nge 6 1 2 Guardians arc recommended bv Will to act with the Advice of jf. S. and J. S. is after- wards attainted, this Super- intendency devolves upon the Great Seal, yo6 atto?ncp niiO Scficito?, A- being beyond Sea, fucs ^. at Law, jj. brings a Bill in Equity ■ againft J. Court will order that Service on the Defendant's Attorney at ],aw fhajl be good Service, but n.ot that fuch Attorney iliall put in an Anfwer for him without Oath. 523 So if there had been a general Letter of Attorney to appear in and defend Suits, the Court would have ordered fuch Attorney to appear for the Principal, and that Ser- vice on him fliould be good Service. ,7,/^/. Upon^the Attorney's or Solici- tor's appearing to be guilty of a grofs Neglcd, the Court will order him to pay the Cofts. 5PJ aijcciiffc nttti Coiitiibutioit, One fcifed in Fee of fome Lands, and poftefled of Leafes for Years of other Lands, de- vifes the Fee to //. and the Leafes to 'Ji. and dies in- 9 K debttd A Table of the Principal Matters. debted by Bond ; on a Defi- ciency of Affets both the De- vifees fhall contribute in Pro- portion to the Vi^lue of the refpeiilivc devifed Premif- fes towards Payment of the Bond-Debts ; but if the De- vife had been to A. of all the reft of the Tcftator's Eftatc, then A. fliould have paid the Debts. Tage 404 One feifed in Fee of the Manors of A. and S. mortgages A> for 4000/. and by Will char- ges all his real Eftate with the Payment of his Debts, and dcvifes A- to C and S. to D. and diesj the Devifee of A, fliall compel the Devi- fee of 5. to contribute to pay the Mortgage on A. but if the Will proves void, then no Contribution. 505 s UING the Bail pending a Writ of En-or in Parlia- ment is a Contempt and Breach of Privilege. 685 'Bankrupt A Creditor by Statute of j^. S. if 5- ^' becomes Bankrupt, and the Statute be not fucd and executed before the Bankruptcy, iliall come in only pro ratd^ though there were Lands in Fee bound by the Statute. 92 A. lends Money to B. and C- on Bond, "B. becomes Bank- rupt, and his Eftatc is afllgn- \ ed by the Commiflfioncrs, A. fues C. and takes him in Execution on a Cd Sa\ and afterwards confcnts to his E- fcapci yet A. fliall come in as a Creditor of B. the Bankrupt for a Moiety of his remaining Debt. Tage 238 The Wife cl»m fola enters into a Bond and then marries, af- ter which the Husband be- comes a Bankrupt i this Debt by Virtue of the Statute of 4 6* 5 Af2fi!C^ cap. i-j. is dif- charged by fuch Bankruptcy. 249 In like Manner Debts due to the Wife dijm fola^ tho' un reco- vered, arc, on the Husband's Bankruptcy, aflignable by the Commiffioners. ihid> See 'Baron nnu ifeme* The Plea on the Statute of the 4 d" 5 AtiJitS^ relating to Bankrupts, and their Dif- charge, muft conclude to the Country. 258 A lingle Creditor to whom 100/. was due from A. by two Notes, and 53/. Part thereof not yet payable, (be- fore the 5 Gfco. 2.) fued out a Commiflion of Bnnkruptcy, fuch CommilTion fet aiide as irregular. 26a So alfo of a Bond, where the Obligee took out a Commif- lion before the Day of Pay- ment. 6 1 o A. furrenders a Copyhold by way of Sale or Morrgage, but the Surrender is not pre- fented as it ought to have been, after which A. becomes a Bankrupt; the Copyhold is bound by the Surrender and net A Table of the Principal Matters. not liable to the Bankruptcy. Ta"€ 280 A Bankrupt though in Poflcffion, yet if ini powered to difpofc of Goods in Truft for ano- ther, they are not liable to the Bankruptcy cither in Law or Equity. 314 Husband before he has recei- ved the Wife's Fortune be- comes a Bankrupt, the Af- Iignee fliall not receive it without making fomc Pro- vifion for the VVifc. 582 A PolTibility of Right belonging to a Bankrupt is not aflignablc by the CommifTioners. 385 Commiffioners, after they have made an Aifignment of the Bankrupt's Efix:(5ls, and given him his Certificate and Dif- chargc, cannot make a fub- fcquent Alfignmcnt. 386 A Feme Sole mortgages in Fee, marries, and the Husband be- comes a Bankrupt and dies, the Alfignees of the Bankrupt, and not the Wife, are entitled to the Mortgage j jecni if by Articles before Marriage it was agreed that this Oiould continue to the Wife 45 8,46 1 See Title TSni'ou onO ifcmc. Though a Creditor comes into a Com million of Bankruptcy, proves his Debt, and is pre- vailed on to be an Affignee (being informed that other- wife he fliould lofe his Debt) yet if the Bankrupt has no E- flate, the Creditor may take the Bankrupt in Execution if he will waive any Benefit of the Statute. 560 The Reafon of a Creditor's co- ming in under a Commilfion of Bankruptcy, and proving his Debt, may be to oppofe the Bankrupt's being dif- chargcd. "Page 562 No Election, in cafe of a Cre- ditor's coming in under the Commiflion, to be pnid out of the Bankrupt's Eftedis, if no EfFctfls. ihid. Argument of Fraud, if the CommifTion be iued out by the Bankrupt's Father in order to difchargc the Bankrupt. 563 A Bankrupt's W'ifc cannot bs examined againft her Huf- band to prove his Bankrupt- cy, though by the Statute of 21 Jac. I. ilie be made examinable touching the Difcovcry of her Husband's Eftc'ds. 6 1 1 By 5 Qeo. I. cap. 24. a Bank- rupt maybe examined touch- ing his own Bankruptcy, ihld. If one of the Reafons for the Commitment of a Bankrupt be illegal, and the Party to continue in Cuftody till fome- thing which is illegally re- quired of him be done, the whole Commitment is naught. iUd, Creditors of a Bankrupt who come into the CommifTion fliall not imprifon the Bank- rupt for not paying the Debt. 6\ 2 A Creditor petitions againft the Allowance of the Bankrupt's Certificate, upon which the Bankrupt gives him a Bond for Payment of his whole Debt in Confideration of fuch Creditor's with-drawing his Petition i Equity will not re- lieve againft fuel) Bond. 620 A A Table of the Principal Matters. A Trader feifcd of Lands in Fee gives Judgment to S. and then fells the Land to C. and afterwards becomes a Bankrupt ,• tho' the Judg- ment Creditor cannot come in for more than his Propor- tion with the Reft of the Bankrupt's Creditors, whe- ther he may not extend the Lands in C the Pur- chafer's Hands, C having puichafcd before the Bank- ruptcy, and this not preju- dicing the Creditors. So if A. the Trader gives Judgment to Jj' t»nd articles for a valu- able Confideration to fell to C. iind then becomes a Bank- rupt ; it feems the Judgment fliall bind the Lands in the Hands of C. who articled to buy tliem 5 but whatever Money the Purchafer was to pay the Bankrupt, the fame iliall be liable to the Bank- ruptcy. 'Page 737 Bankrupt, before his Bank- ruptcy gave a Note to J. for loo/. pnyablc to A- or Order, B. buys in the Note for 50/. yet B. is a legal Creditor for 100/. and may fue out a Commiffion againft the Bankrupt ; fecvs of an AlTlgnee of a Bond, he not being the legal Creditor, or if the Indorfement were af- ter the Bankruptcy. 782 Bargaiui catching. Sec |J)C(r. 15aron nnH lemr. A perfonal Eftatc was devifed to a Feme Covert for her fe- parate Ufe without naming Truftccs, this, by the Opinion of Lord Covoper^ not good to exclude the Huiband from intermeddling. Ta'^c \^^ Q^i'tere tawen. What Circumftances will un- doubtedly make fuch Will good. 126 Debts of the Wife contradtd dti7U fola are difcharged by the Bankruptcy of the Huf- hand, as on the other Hand Debts due to the Wife dum fola are aflignable on the Bankruptcy by the Com- miffioners. 249 Debts due to the Wife dmn fo/a, forfeited and aflignable to the King by the Husband. 253 The Wife is for ever difcharged by thcDifcharge of the Bank- rupt Husband. 257 Husband borrows Money, and he and the Wife ievici, a Fine of the Wife's Land as a Mortgage for it, after which the Husband by Will givis Legacies and Charities to the Amount of his perfonal E- ftatc and dies; the Mortgage Money fiiall be paid out of his perfonal A Acts, though to the Defeating of the Cha- rity Legacies. 264 But all the Husband's Debts, even thofe by Simple Con- tra*!;!:, fliall be preferred to the Mortgage. ibid. Where a Feme Sole feifcd mortgages, and marries B. and the Mortgage is afligncd, and B. in the Deed of Al- fignment covenants to pay the Mortgage Money, his perfonal Eftatc is not liable in A Table of the Principal Matters. in Equity to pay the fame, un- lefs he received it. 'Page 348 Feme Covert poircfl'cd oiChojes eji AUio7i dies, her Husband adminifters, and makes a voluntary AlTignnicnt, this is an Alteration of the Proper- ty. 378 So if the Husband had furvived, and then had died without altering the Property, or fo much as adminiftring to his Wife. ihid. Husband before he has received the Wife's Fortune becomes a Bankrupt, the Afiignee fliall not receive the fame without making fomc Provifion for the wife. 382 A Feme Sole Mortgagee in Fee, marries, and the Hul- band becomes a Bankrupt and dies, the AfTignccs of the Bankrupt, and not the Wife, arc entitled to the Mortgage ,• {ccns if by Articles before Marringe it was agreed that this fliould continue to the Wife. 458, 461 Feme Sole owes Debts by Bond, and having married dies lea- ving no Itgal Affets, but at the Marriage had a Term for Years, Jewels, C^C. in Con - iideration of which the Huf- band makes no Settlement ; the Hubband not liable in E- quity any more than at.Law. 466 Husband during the Covciture liable for all his Wife's Debts, though he had no- thing with her; and on the other Hand, though he had a Portion in Goods, Jewels, or other pcrfonal Eftate with his Wife, yet if he happens not to be fucd for her Debts during the Coverture, he will not be liable afterwards. Tage 469 Baron gives Feme the Foul Diftemper, J. lends the Wife 30/. to pay the DoClor for her Cure, Baron devifes Lands for the Payment of his Debts ; this 30/. is a Debt of the Huiband's, and /?. is a Cre- ditor in the Dodor's Place. 48- Though a Wife cannot at Law borrow Money even for No- cefl.iries, fo as to bind her Hu^iband; yet if I'uch Money is applied to the Wife's Ulo for Neceflarics, the Lender of the Money (hall in E- quity ftand in the Place of hiin who found the NecclHi- rics. 483 Hoiv far the Husband is a;;- fwcrahk for the T)ehts of the Wife^ vide fupra under Xnrou ann JTcme. Xnil 0? ©ucctp* Suing the Bail below, pending a Writ of Error in Parlia- ment, is a Contempt and Breach of Privilege. 685 Xaanrti» If Lands arc devifed to a Ba- ftard and his Heirs, though he can have no Heirs but fuch as is his Iffue, yet it is a Fee-fimplc. 78 One devifes 3000/. to all the natural Children of his S^-n 9 S by A Table of the Principal Matters. by Jane Stiles, the Baflards born after the making of the Will fhall not take, nor even the Child ifi Ventre fa mere, Baftards being incapable of taking till they have gained a Name by Reputation. ^Page And though in the principal Cafe the Money was to be paid by the Executors as the Teftator by Deed fliould ap- point, and the Teftator after- wards made a Deed of Ap- pointment, yet fuch Deed re- ferring to the Will was held as Part thereof. 530 Who miijl he Tarties, vide Tit. parties, A Bill brought by a Bond-Cre- ditor againft a Devifce on the Statute of fraudulent Dcvifes muft make the Heir a Party. 100 A Bill lies to perpetuate Tefti- mony before Trial, on Affi- davit annexed. 117 J. brings his Bill againft 'D- and C. who put in infuf- ficient Anfwers, and prefer their Crofs Bill againft A. S. becomes a Bankrupt, his Aflignecs bring a Bill in Na- ture of a Bill of Revivor a- gainft J. they {hall not go on till C. has anfwered J's Bill. 266 A Bill does not lie for an Owner of a Quit-Rent, in order to fettle what Proportion his Quit-Rent fliall pay to the Land-Tax. 3 29 1 030115 0? £'l'i{igatioii. By a Devife of all ont's Goods a Bond will pafs. Tcgc 267 Bond or Covenant to pay a Sum of Money on Failure of Illue of /J. generally is good. 566 A Son in plentiful Circum- ftauces gives his Father a Bond to pay him 120/. An- nuity for his Life; this, if done freely and without Co- ertion, good j and what Words or Circumftanccs will not be conftrued a Cocrtion. 607 A Bond is given to a Creditor, who had petitioned againft the Allowance of the Bank- rupt's Certificate, to pay the whole Debt in Coniideration of the Creditor's with-draw- inghis Petition; Equity will not relieve againft it. 620 Miirrioge-hrccage Bo?iclu Vide One feifed of a Copyhold in Fee in Nature of ''Borough Eiiglifli has five Sens, the youngeft of whom dies lea- ving Ifluc a Daughter, and then the Father dies, the youngeft Son's Daughter is inheritable. 63 The Cuftom of a Manor was, that the Copyhold Lands of any Tenant dying feifed fliould dcfcend to his youn- geft Son, and a Surrender is madu A Table of the Principal Matters. made of a Copyhold to tlic Ufe of y. S. and his Heirs, who dies before Admittance, his cldcft Son, and not his youngcft, fhall take thcfo Lands J fccns had it been \a\A to liavc been of the Na- ture of 'Borough Ej/'jUJJj. 'Page 66 One having Boiousjj En^UJI.-! Lands is dillcifcd and dies, this Right to the Boro7.'gh T.7i2ji(l3 dial I defccnd to the Youngeft Son. 67 Cafunltic5» On Cafualties happening be- tween the Articles tor a Purchafe and the Scahng of the Conveyance, who (liail bear the Lofs. 6\ Where a former Will of Land is cancelled by the Tcftator upon a Prefumption that a latter Will is good and duly executed, which proves not to be fo, in fuel) Cale Equity will relitve under the Head of Accident. 346 Cljaritp nnu cljiivftnble ^\i'%. Sec aifo li)O0^ A Devifc by a Nuncupative Will by Tenant in Tail of a Rent out of Lands to a Cha- rity, void. 147 V:dc £)c\3irf, and 2ItllK Devifc by Tenant in Tail to a Charity good, tho' no Fine levied, or Recovery fuffcred previous thereto. 24^ Charity Legacies that arc pe- cuniary, lliall on a Defi- ciency of Aflets come into Average as well as other pe- cuniary r>egacies. Page 425 In a Suit for a Charity for the Arrears of a Rent-charge, it is not nccelfary to tnakc all the Ter-tenants of the Land, out of which the Rent ilfues, Parties. 599 See alfo Tit. pr.rtirjs* A PariOiioner no good Evi- dence to prove a Charity given to the Parifli ; fecus if only a Lodger, and one who does not pay to the Poor. 600 Sec alfo Tit. €lJlDcnCC. Two Schools in one Town, the one a Free, the other a Chn- rify School for Boys and Girls J A. devifes 500/. to the Charity School, though both be Charity Schools, yet only that for Boys and Girls iliall take. 674 One fcifed of fomc Lands in Fee, and being Cefini que 'J tuft of other Lands, de- vifes all to J. for Life, Re- mainder to his firft and fe- cond Son in Tail Male (with- out going farther) and after J.\ Death without liluo Male, then to a Charity ; though //. be Tenant in I'ail until Ifiue born, and may bar the Charity with refpctlt to thofe Lands of whicli he has the legal Eftate, yet ir was held otherwife as to the Trull Ertatc. 754 C[)(irsjfn anD pounijcr CljtI. D.'eii. See }i)o]tionet. Com« A Table ^f the Principal Matters. Committee* Committee of an Infant Heircfs having given a Recognizance that helliould not fuffer the Infant to marry without the Confent of the Court, the Form of this Recognizance moderated, 'viz. that the In- fant fhall not marry with the Committee's Privity, without the Confent of the Court. ^Page 69% Common EecoDerp* Vide Ee- co^crp. Ccnancp in Common* Vide Jointcnantss. Conccramcnt, Cot^in, Collin fion* A Devifec under a Will dc- fcdivcly executed rcprefents it to be duly executed, and for a fmall Sum gains a Rc- leafe from the Heir, fuch Releafe fet afidc. 259 Where the firft Mortgagee is a Witncfs to the fccond Mort- gage, though there be no adual Proof of his knowing the Contents thereof, yet from a Prefumption that he might have known the fame, this flaall poftpone him. 394 Conliitioiu One devifes Lands to his Wife for Life, and after her Death to his Son in Fee, upon Con- dition to pay his Daughter 1000/. within a Year after the Death of J. S. with a Provifo, that if tiie Money be not paid, the Daughtc'r may enter and receive tlie Prohts till Payment J J. S. dies, living tiie Wifej the Daughter is entitled to the 1000/. and in Dcfluilt ot Payment a S;Ue of the Re- verfion will be decreed. Ta^e 47« Condition precedent. One by Will gives an Annuity to his Grandaughter ; but if flie marries with the Execu- tor's Confent, then a Por- tion ; fhe marries fajis Con- fent a Man worth nothing ; the Husband not entitled to the Money, the having mar- ried with the Executor's Confent being a Condition precedent to the Gift of the Portion. 284 Condition or Covena?it hrokcn^ and bozv far relie'vahle. Mortgagor rcferving C\k per Cent, with Provifo to take five if p.iid within three Months after j if a great Ar- rear, the Court will not re- lieve i [ecus if but a fmall Slip of Time. 652 Vide Tit. Intcteff Of £0mz^. Con^ A Table of the Principal Matters. Contiimrnt Ecmninticrei. Vide Ciiiftcrs fo? p?cfci'UinDi con= Ccmtnlititioii, Vide aDctap. Conljocation* 'J'ho Canons of a Convocation do not bind the Laity with- out an A(ft of Parliament. 'Page 32 CoppljoID. Copyhold Lands do not dift'cr in Conftru(5lion of Law from Freehold, and Surrenders of Copyholds muft be governed by the fame Rules as Con- veyances at Common Law. 16 If a Copyhold be devifcd to Grandchildren without any previous Surrender, Equity will fupply the Want there- of. 61 Surrender of a Copyhold to the Ufe of liaron and Feme for their Lives, C7 lUndinn C^ Ajjignatonim of the faid Baron and Feme, and for Default of fuch Ifluc, to the right Heirs of A- this is an Eftatc in Fee, and not an Intail in the Baron and Feme ; otherwife had it been the Cafe of a Will. 71 A' furrenders a Copyhold by way of Sale or JSIortgagc, but the Surrender is not pre- fented in Time, and /]. be- comes a Bankrupt; this will bind the Sale in Equity. "Page 280 If a Copyholder fues in the Lord's Court by Petition, and thereupon a wrong Judg- ment is given, though no Appeal or Writ of Error will lie of fuch Judgment, yet the Court of Chancery will corred the Proceedings. %io Voluntary Conveyance of a Copyhold or other Eftate not helped in Equity againft an Heir. 35^ One devifes all his real Eftate to pay Debts, having Part Freehold and Part Copy- hold, and dies without ha- ving furrendered the Copy- hold to the Ufe of his Will; if the Freehold Eftate be not fufficient to pay Debts, the Copyhold, being real E- ftate, fhall be liable. 443 A Copyhold was granted to the Husband and Wife and 5^. S. for their Lives fuccejjiz-e^ and the Fine appeared by the Rolls to be paid only by the Husband and Wife; J. S. decreed a Truftee for the Husband and Wife and the Survivor of them. 781 Contempt An Advertifement in the pub- lick Prints, that whoever fliall difcover and make legal Proof of a Marriage (in Re- lation to which there was a Suit depending in this Court) fliall have 100/. Reward; held to be a Contempt of the Court, and the Party 9 T pro- A Table of the Principal Matters. procuring it committed. ^Page 675 Suing the Bail below, pending a Writ of Error in Parlia- ment, is a Contempt and a Breach of Privilege. 685 A general Aft of Pardon, tho' with an Exception of all Contempts then depending, which had been profecutcd at the Charge of any pri- vate Perfon, yet held to ex- tend to Contempts in marry- ing Infant Wards of a Court of Equity. 696 Where the Husband was a Lu- natick, the Wife, though an IrijJj Pcerefs, committed for a Contempt in not producing him. 701 The firfl: Procefs for Contempt againft a menial Servant of a Peer, is a Sequcftration mil. 535 Vide l^?0CCfj3* If a Corporation would make ufe of one of their own Members ns a Witnefs, they muft disfranchife him. 595 A College reftrained by their Conftitution from making any Leafes except for 21 Years, and at a Rack-Rent, makes Orders, recommend- ing it to their Succcffors to renew at Icfs than the Rack- Rent; this not favoured, as tending to a Breach of the Statutes. 655 The Signing of any Contraft for Leafing (or whereby the Revenues may be affefted) ] by the Mafters and Fellows of the College, unlefs under the College Seal, will not be binding to the College. Page 6^6 €^^^ \\\ €quitp nnu lato» On a Scire Facias to repeal a Charter, the Defendant fhall pay Cofts for a new Trial. 224 Cofts not always to follow the Event of the Caufe,as where the Money was found due to the Defendant upon Account ; yet it appearing to be much lefs than had been claimed by the Defendant's Anfwcr, in that Cafe the Defendant was allowed no Cofts. 575 Mortgagee fliall not onerate his Pledge with Cofts which he has occafioned by an un- juft Defence. 395 An Heir at Law, or even an Heir Male to the Honour of the Family, if there be probable Caufe to contend for the Family Eftate, not to pay Cofts. 482 See alfo i|)eir. Upon the Attorney's or Solici- tor's appearing to be guilty of a grofs Negleft, the Court will order him to pay the Cofts. 593 CoUcnant* Vide agreement* Covefiant broken , and how far relicvahk^ vide Tit. ConQl'^ tioiu Cottrtjsf, A TABLk of the Principal Matters. Courts. Vide 3iuriiEiriigicin Court of Exchequer. Upon an Outlawry the Plaintiff in the Action ought to get a Grant or Leafe of the De- fendant's Intercft under the Exchequer Seal. jP^^^ 445, 446 Court of Chancery. Court of Chancery in Vaca- tion-Time may grant Prohi- bitions returnable in ^Jj. R. or C. 2. 43, 47<5 If a Copyholder fucs in the Lord's Court by Petition, and thereupon a wrong Judg- ment is given, though no Appeal or Writ of Error will lie of fuch Judgment, yet the Court of Chancery will corrciS the Proceedings. 330 An Executor proves a Will, wherein one of the Legacies is forged i this Fraud is not examinable in Chancery. 388 No Motion can be made on the Petty-Bag Side of the Court of Chancery after the laft Day of the Term, tho' as to other Purpofes on the Equity Side, the laft Day of the Term continues trill the Motions are over. 522 So where the laft Seal con- tinued three Days, the Whole was looked upon as a Con- tinuance of the firft Day of the Seal. ibid. The Court of Chancery only proper to compel an Execu- tion of a Truft, and confe- quently a Diftribution of the undifpofcd Surplus of a pcr- fonal Eftate. Ta^e 549 Guardians appointed by Will according to the Statute of 12 Car. 2. cap. 2^. Iiavc no more Power than Guardians in Socage, and are but Truftecs, on whofc Misbe- haviour, or giving Occalion to fufpe(5t their Behaviour, the Court of Chancery will interpofe. . _ 704 If a Father in loV Circum- ftanccs endeavours to marry his own Child to one who has an Eftate not any ways proportionable, the Court of Chancery will interpofe. 705 Guardians are recommended by Will to adt with the Ad- vice of J. S. and J. S. is afterwards attainted, this Superintendency devolves up- on the Great Seal. ibid. Court Spiritual^ vide Spiritncil Court. Ciirtcfin Tenant by the Curtcjf): One fcifed of Lands in Fee had two Daughters, and devifed his Lands to Truftces in Fee, in Truft to pay his Debts, flnd to convey the Surplus to his Daughters equally; the younger Daughter married, and A Table of the Principal Matters. and died leaving an Infant Son and her Husband fur- viving ,• on the eldefl Daugh- ter's bringing a Bill for a Par- tition, decreed that the Huf-^ band of the youngeft Daugh- ter fhould be Tenant by the Curtefy. Tage 108 Cuffonis jFo^eiffit* Vide Tit. iFo^eign Cuftomis* Oiftoms of London. Vide Hon-- DOlU 2:)ebt0, Crenito? anti Dcbto?. Vide T!rufi for Tcymmt of 'Debts. w HERE the Husband receives Money which by Marriage Articles was co- venanted to be laid out in Land and fettled, and after- wards mifapplies it, hisAffets are liable to make this Lofs good, not as a Breach of Truft, or as Money received and mifapplicdj but by rea- fon of the Articles it is a Debt by Specialty. 131 A Freeman of L.o7idon gives a Note by which he owns him- felf indebted to his Brother and Heir, but his Brother knows nothing of it, and the Freeman keeps this Note al- ways in his own Cuflody, which on liis Death was found among his Papers ,• ad- judged a void Note, and as I a Matter vitended and not perfeUed. T^age 204 Sec alfo under Tit. OoIUlltavp. One feifed in Fee of feme Lands, and pofleflcd by Leafo for Years of other Lands, devifes the Fee to A. and the Leafe- hold to S. and d^\Qs indebted by Bond,- on a Deficiency of Aflcts, both the Devifecs fliall contribute to the Payment of the Bonds ; bur if the Devifc had been to A. of all the Reft of his Eftate, then J. fliould have paid all the Debts. 403 Compofitio7i of 1)ehts. Equity will affift a Compofi- tion of a Debt, if obtained without Fraud and upon a fair Reprefentation 651 If on the Confcnt of the Wife and her Truftees, and in or- der to a Compofition with the Husband's Creditors, the Court orders Part of the Truft-Money to be paid to the Creditors thus confenting to difcharge him of the Debts, any private Notes, CJf. taken by any of the Creditors for Part of their Debts bcfides their Share with the reft of the Creditors, will be fet a- fide. 768 T^he Order and Triority iii which Debts are to be paidy vide under Tit. QfTetlEi, and Ctccuto?. £>ccrrr« A Table oj the Principal Matters. If after a Decree a Ca-veat be cntred to ftay the Signing and Inrolling, it ftays the Signing twenty-eight Days after the Prcfenting the Decree to the Lord Chaficellor to be in- rolled, and Notice given by the Lord Cha7icellors Secre- tary to the Clerk on the o- ther Side. Tcige Sep Where Matters have been ex- amined in Equity ar>d de- termined, the Court is cau- tious of unravelling former Decrees, Agreements or Rc- Icafes. 723 On a Bill to fet afidc a Decree againft an Infant for Fraud, if the fame be not fraudu- lent, though in many Re- fpo(5ts not fo equitable, the Court will not fet it afidc. 734 If after a Decree to accoun*-, an Executor or Adminiftrator does not revive within fix Years, this is not within the Statute of Limitations. 742 Tarties hound or 7iot by a "De- cree, A Decree fhall not bind a Re- mainder-man who is no Par- ty. 91 After a Decree 7ii(i Caufa a- gainft an Infant, on fuch In- fant's coming of Age and before the Decree made ab- folutc, he may put in a new Anfwer. 504 See Tit. anflucr^ Deeds, Convey c\72ces and Ajfu- rances, ConfimHion and O- peration of them. Devife to ^. (a Woman) for Life, and then to be at her Difpofal, provided it *be to any of her Children by her firft Husband, y^. with ■ an after-taken Husband does by Leafe and Releafc and Fine convey the Premilfcs to a Truftee and his Heir>, to the Ufe of herfeif for I .if..- without Impeachment of Wade, Remainder to her Daughter by a firft Husband and the Heirs of her Body, Remainder to her Son by her firft Husband and his Heirs ; this adjudged a good Execution of the Power. Tage J 49 Deeds or Settlements folemnly executed, not to be fet afidc by the Parties parol Expref- fions declaring againft it. 482 Deed of Appointment in Con- fcqucncc of a Will, and re- ferring thereto, conftrued as Part of the Will. 530 Deeds loft or concealed. Where an Heir fuppreffed a Deed or Will, formerly the Court decreed the Party claiming under fuch Deed, C^c. to hold and enjoy againft fuch Supprcflbri but now the 9 U Court A Table of the Priitcipal Matters. Court goes farther, and de- crees the Suppreflbr to con- vey. Tage -jii The Contents of a Deed or Will fupprefled, if uncertain, to be taken more ftrongly a- gainft the SupprelTor. ibid. Deeds cajicdkd. One makes a voluntary Settle- ment on her Nephew J. . >n which there is no Power of Revocation, keeping the Deed in her Cuftodyi af- terwards the Nepliew's Fa- ther gets an attefted Copy of this Settlement 5 then the Aunt burns fuch Settle- ment, and fettles the Pre- miflcs on her Nephew B. de- livering the faid Settlement into sVs Cuftody j the Ne- phew J.'s Bill to eftablifl-i the firft Settlement difmiiTcd with Coftsj upon which the fecond Nephew S- claiming under his Settlement, and bringing a Bill to have the attefted Copy delivered up, obtains a Decree for that Purpofe. 577 T)eeds ohtaijied by 'Dnrefs^ Com- pulfion^ &c. Husband before Marriage co- venants to releafe the Guar- dian of the intended Wife of all Accounts; this not bind- ing, from a Prefumption that it was not made freely. 1 18 Vide Marriage-brocaze 'Bonds. Son in plentiful Circumftances gives his Father a Bond to I pay him 120/. Annuity for his Life, this, if done freely and without Coerrinn, good,- and what Words and Circum- ftances will not be conftrued a Coertion, ^age 607 Vide ante 'BonHjJ* If one be made a Plaintiff im- materially, and without be- ing any Ways intercftcd in the Caufe, the Court will not make an Order to exa- mine fuch Perfon de bene ejfe^ but the Dcfendtint ought to have demurred. 595 In what fpecial Cafes the An- fwer of one Defendant may be read againft the other. 3C0 They only are Defendants to a Bill againft whom Procefs is prayed. 593 See alfo PartiC0* Dcpofition0 0? Crnmination* A Witnefs was examined who at that Time was difin- terefted, but afterwards be-. came intercftcd and Plaintiff in the Caufe, his Depofitions allowed to be read. 288 A Witnefs, fworn and examined to feveral of the Interroga- tories, dies fuddenly before he has figncd his Examina- tion ; thefc Depofitions no E- vidence. 41,4 Dcfcn- A 7>BLE of the Principal Makers. Defendant after Publication ex- amines a Witnefsj and on the ui'ual Affidavit, that nei- ther he, his Clerk or Solici- tor had fben the Dcpofitions, gets an Order to re-examine this Witnefs, but the VVitnefs dies before a Re-examina- tion i the Court gave Leave to the Defendant to make life of the former Dcpofi- tions. Toge^i-i T)cpqfitious dc bene cffc. Court rcfufed to publifli De- pofitions de bem ejfe, in or- der to compare them with the Dcpoiitions in the fame Caufe taken on an Exami- nation in chief, 567 The Reafon of examining a Witnefs cie he?ie ejj'c. 568 Whether a Profecution for Per- jury will lie on a Depofitiun taken dc btiie cjjh. 568 Dcfcciit. Sec alfo Jpurcljafc. JJc'ir not always, and of Nc- ceffityjto be intended a Word of Limitation. 59 So wliere the Dcvife was to the Heirs Male of J. S. be- gotten, 7- S. having a Son, and the Teftator taking" No- tice that J. S. was then li- ving; this was held a fufficicnt Defcription of the Teftator's Meaning, and the Son allow- ed to take, though ftridly fpcaking he wixs not Heir. 229 All Lands in Ejigland at firft defcendcd in Gavelkind; but after the Conqueft when Knight-Service Tenures were introduced, and the whole defcended to the eldefl Son, the Daugliter of the eldefl, j!/re repficjaitntiojiis, was preferred to the youngefl: Son. 'Page 64 Dft)ifC, and (£rcCUt02P Df^ifc, Vide m\\u ' T>edfe for Tqymcjit (f 7Jebfs. Vide T'rx/fh for raffing Tor- ti07]s and 'Pay went of'Dt.bts under Tit. Cl'lllt. For the incouraging of Pur- chafers of Fee-Farm Rcnts^ the Statute of 22 Car. 2. cap. 6. gives the Purchafers the fame Power of Diftrefs which the King had^ {viz.) not only on the Lands char- ged, but on any other of the Lands belonging to the Te- nant, (hitcre autp7ii^ if fuch Grantee of a Fee -Farm Rent may diflrain on other Lands of the Tenant under Scqueftration. 307 2r>i(!ril)Utioiu Who JJjall he preferred iv.'tb regard thtrtto. Where an Executor has an ex- prcfs Legacy, the Court of Chancery looks upon him but A Table of the Principal Matters. but as a Truftee with regard to the Surplus, and will de- cree the fame to go accord- ing to the Statute of Diftri- bution. "Page 7 So though the next of Kin has a Legacy alfo. 544 Inteftatc dies leaving a deceafed Brother's Child and a de- ceafed Brother's Grandchild, the Grandchild not admitted to any diftributory Share. The Claufe in the Statute of 22 6~ 23 Car. 2. cap. 10. which fiiys, that there fliall be no Rcprefentatives among Collaterals beyond Brothers and Sifters Children, being to be intended that none fliall take by Rcprefenta- tion but the Children of Brothers and Sifters to the Inteftatc. 25, 594 One dies inteftatc, leaving an Aunt and a Grandmother, his next of Kin ,- the Aunt not entitled to come in for a diftributory Share with the Grandmother. 41 On a Son's dying inteftatc, and without Wife or Ift'ue, the Father is at this Day enti- tled to the whole perfonal Eftate, though by the firft of Jac. 2. the Mother has but an equal Share with the Bro- thers and Sifters. 48, 49 How the Law ftood formerly witli Regard to Diftribution and Inheritance, 50 Gnndfather on the Father's Side, and Grandmother on the Mother's Side, equally entitled by the Statute of Diftribution. 53 As is alfo the Half Blood with the Whole. Page 53 One covenants to leave his Wife 500/, and dies inte- ftatc, upon which the Wife's diftributory Share comes to above 500/. this is a Satif- fadion of the Covenant. 324 One devifes the Surplus of his perfonal Eftate to liis Rela- tions; only fuch flrall take as arc capable of taking within the Statute of Diftribution. One dies inteftatc, leaving an Uncle and a deceafed Aunt's Son, the latter fliall have no Share under the Statute of Diftribution. 594 One devifes the Surplus of his perfonal Eftate to four c- qually, and leaving J. S. Executor in Truft ; and one of the four dies in the Life of the Teftator J his Share, as fo much of the Teftator's Eftate undifpofcd of by the Will, fliall go according to the Statute of Diftribution. 700 T)oNatio Caitfa Mortis. Vide Husband feifed in Fee mort- gages for Years, marries and dies; his Wife fliall be en- dowed. T2t Legacy to a Wife, in Confi- dcration that flic releaic her Dower, on a Deficiency of AiTets, ^ Ta B L E of the Prmcipal Matters, Affcts, fliall be preferred. ^age 127 A Truft Term for Years fhall not, in Equity, hinder Dow- er. 137 A Jointure made by a Free- man of London on his Wife in Bar of Dower, will not extend to bar her of her cuftomary Part. 530 €jesment» Mortgage in Fee is made re- deemable on Payment of 300/. and Intereft upon any Michaehnas Day, on fix Months Notice; the Remedy in this Cafe, on Default of Payment, is not by Mutua- ttts at Law, or by Bill in Equity, but by Ejcdmcnt to recover the Poflelfion. 294 where Money is agreed to be laid out in Land, the Party who would be entitled to the fole Intereft in the Land when bought, may (if not an Infant) elc(5t to have the Money paid him, and that it fhall not be inverted in Land. 130, 389, 470 A Man has one Daughter, to whom 8000/. is fecured by Marriage Settlement, and afterwards he gives her ■8000/. by his Will for her Portion, and 200/. per Ann. the Daughter fliall have but one 8000/. though fhe may eleft which of the Portions ihe pleafes. 'Pnge 147 Purchftfer before a Maftcr may elcd to lofe his Depofit j in which Cafe he will not be bound to proceed in the Pur- chafe, y^j €ntrj>. The Hime Length of Time fliall bar a Redemption in Equity, as bars an Entry at Law. 270 VV^here Lands were devifed to J. for Life, and if A. fliould die leaving Iffuc Male, then to fuch Iffue Male and his Heirs for ever,- but if A. fliould leave no IfTue Male, then to B. in Fee ; and A. fuffered a common Recovery of thefe Lands, and five Years paflcd j held that the right Heirs of the Tcftator were barred, in Regard they ought to have entered upon fuch Forfeiture, and had no new Title of Entry upon the Death of the Tenant for Life. 520 whether Error lies on a Rule or Award of a Mc.ndainus. Writ of Error on a Judgment on a Mandavnts no Super- fedeas to a peremptory Man- damns. 351 Error lies not on a Rule for a Prohibition. ibid. 9 X After A TA'BLE of the Principal Mutters, After Judgment in an Adion on a Policy of Infurance, if Error is brought to reVerfe fuch Judgment for want of an Original, the Court will not permit the Plaintiff to file an Original. T^age 41 a ^flate in 'Bee-fimple. A Surrender of a Copyhold to the Ufe of Baron and Feme for their Lives, (j Hdredjj7u (J' Jjfigjmtortim of the faid Baron and Feme 5 and for Default of fuch IlTue, to the right Heirs of J. this is an . Eftate in Fee, and not an Eftate-tail in the Baron and Ferae i otherwife had it been in the Cafe of a Will. By three Judges of S.7?. againft Gould J. 70 If Lands are given to a Baftard and his Heirs, tliough fuch Baftard can have no Heir but of his Body, yet it is a Fec- limple. 78 Eftate in Fee-tail. A Devife by a Father to his fecond Son and his Heirs for ever, and for want of fuch Heirs, then to the right Heirs of the Teftator, is an Eftate- tail; but had the Devife over been to a Stranger, the fecond Son would have taken a Fcc-iimplc, and confe- quently the Devife over had been void. 23 4 Devife to J. for Life, Re- mainder to his firft, CJc. Son in Tail Male,' and fo on ta his fixth Son ; and if J. fhould die without Iffue Male of his Body, then to S. this held to give an E- ftate-tail to J. to the End that the feventh and other fubfequent Sons fliould not be excluded, 1*age 59, 754 So had the Devife been to J. for Life, and if J. died without Iftue, then to S. here the fubfequent Words would have turned the ex- prefs Eftate for Life into an Eftate-tail. 605 Upon a Settlement J. is made Tenant for Life, Remainder to the Heirs of his Body by his Wife Jaj/e^ and in the fame Deed covenants not to fuffcr a Recovery, but that the Lands fhall be enjoyed according to the Limitation ; J. does fuffer a Recovery, and devifcs the Lands; this Covenant good to bind the Affcts ; but J. being Tenant in Tail, and as fuch having a Power to fuffer a Reco- very, the Lands devifcd fhall not be affeded. 1 04 One devifes Lands for Payment of Debts, and then to J. for Life, with Power to make Lcafes, C^f. Remainder to the Heirs Male of the Body of J. though this be but the Devife of a Truft and Exe- cutory, and exprcft to be to J. for Life, yet it is an E- ftatc-tail in J], barrable by a Fine and Recovery ; ftxns in Cafe df Marriage Articles to ^ Table of the Principal Matters. to fettle Lands in that Jilaii- ncr. ^Pa^^e 142, 290 Dcvlfe by Tenant in Tail to a Charity, gooJ, tJio' no Fine be levied, or Recovery fuf- fcrcd previous thereto. 24^:) Eflate for Life. J. dcvifcd Lands to Ttuftccs and their Heirs, in Triift, that the Profits fliould be equally divided between his Wife and Davighter during the Wife's Life; and after iicr Death he devifed the fame to the Ufe of the Daughter in Tail, Re- mainder over, the Daughter dies before the Mother; this held to be a Tenancy in Common between the Mo- ther and Daughter during the Mother's Life, and that on the Daughter's Death her ISIoiety did not rcfult to the Heir, but was an Intereft un- difpofcd of in Nature of a Tenancy pur anter vie^ and belonged to the Daughter's Adminiftratrix. 34 Devife to J. for Life, Re- mainder to his firft and every other Sons in Tail Male fucceffively, and for want of Iflue Male of J. Remainder over; this is only an Eft^ate for Life in j4. even though the Codicil took Notice that the Teftator had given the Premilfes to J. and the Heirs ]\Ialc of his Body. 54 fed Vide 605 Devife to J. for Life, and af- ter his Death to the Heirs >Iale of his Bod}', and the Heirs Male of the Body of fuch Heir Male feverally and fuccelfively, as they lliull be in Priority of Birth, Crr. Re- mainder over; J. by the better Opinion, fecms to be only Tenant for Life. Page Devife to Jane Styles for I,ife, and then to be at her Difpo- f:\l, provided line gives the Premifles to any of her Chil- dren by her firft Husband ; this gives her an Eftate for Life, with a Power to dif- pofe of the Fee. 1 49 Devife of Land to a Corpora- tion, in Truft to convey the Premilfes to the Teftator's Godfon J. for Life, and fo to his rtrft Son for Life, and afterwards to the firft Son of that firft Son for Life, then to 'B. for Life, with the like Limitations; this tending to a Perpetuity will not be al- lowed, but the Conveyance fiiall be made as near the Intent of the Party as the Rules of the Law will ad- mit, viz. by making all the Perfons in Being Tenants for Life; but the Limitations to the Sons unborn muft be in Tail. 33^ Efiate for Tears. How and in what Rcfpevfls a Devife of a Term for Years difters from a Grant thereof. 575 One poflciled of a Term for Years, dcvifes all the Pro- fits thereof to J. S' only the A Table of the Principal Matters. the Profits accruing from the Death of the Teftator ftiall pafs. Vage 503 One devifes his Lands to his Executors for and until Pay- ment of his Debts; this is but a Chattel Intereft in the Executors. 5 o9 A. devifes a Term for Years to S. for Life, Remainder to C. C. in the Life of S. devifes the Remainder of this Term j this is good, and amounts to C.s decla- ring that his Executors (hall ftand poffeffed of the Term in Truft for the Devifee. 572 So if a Devifee in Remainder of a Term articles for a va- luable Confideration to fell it ; fuch Devifee in Remain- der is afterwards but a Tru- ftee for the Purchafer, but a voluntary AlTignment feems void. 576 Anciently there were rarely any Leafes for Years but what were for a fhort Time; for which Rcafon they were cfteemed to be of lefs Con- tinuance than an Eftate for Life, and for the fame Rea- fon fuch LefTee could not falfify a feigned Recovery. 574 If I devife all my real and perfonai Eftate, and after- wards purchafe fome Lands in Fee, and fome Leafes for Years, the Leafes fhall pafs, but not the Fce-fimple Lands. 575 Eftate by Implication. Vide 3lmplicat(on, l^er7n Jftendant on the Inhe- ritance, A' feifed in Fee demifcs to S. his Executors, ^c. for 99 Years, in Truft for himfelf and his Wife for their Lives, and the Life of the Survi- vor; and after the Death of the Survivor, in Truft for the Heirs of their two Bo- dies ; and in Dcfuilt of fuch IlTue, for the Heirs of the Body of the Husband, Remainder to the Heirs of the Survivor of the Husband and Wife ; Husband and Wife havellTue a Son^thc Husband dies, after which the Son dies without Iflue in the Life of the Mother, who admini- ftring to her Husband and Son, afligns this Term to the Defendant; decreed the Af- fignee well entitled, and that the Term fliould not go to the Heir of the Husband, as Attendant on the Reverfion. ^age 360 Limitation of 'terms for Tears, Money, &c. J. devifes Houfhold Goods to his Wife for Life, and after- wards to his Son ; the Court held this a good Devife over, and to be the fame as if it had been only of the Ufe of the Goods to the Wife for Life. I Truft of a Term is limited to J. for Life, then to his firft, &c. A Table of the Principal Matters. (jjc. Son in Tail Male, and for want of IlTue Male, to his Daughter or Daughters for the Remainder of the Term ; there having never been a Son, the Limitation to the Daughter was held good. 'Page 98 ^. on his Marriage alfigns a Term of 1 000 Years in Truft {(>r himfelf for Life, Re- mainder to his Wife for Life, Remainder to the Heirs of the Body of the Husband and Wife, ^c. the Wife dies lea- ving Ifluc; the whole Term vcfts in the Husband, and he may affign it. 132 A Legacy given upon a Man's dying without llluc, to be paid within fix Months after, the Man dies leaving Iflue, which lllue within lix Months after dies without IlTue ; the Legacy not due, it not being intended to arife upon any re- moter Contingency than that of the Man's dying without Iflue living at his Death. 198 Termor devifes his Term to J. fur Life, Remainder to fuch of his UTue as /i. lliould appoint, and if J. die with- out Ifl'uc, Remainder to B. this held a good Dcvife to S. being to be undeirtood if A- die without Kfue living at his Death. , 432 One having two Nephews J. and S. devifes his perfcnal Eftate to A. and B. and if cither of them die without Children, then to the Survi- vor; this is good, being to be intended without Children living at his Death, 554 One devifes his perfonal E- ftatc to his Son, and if his Son die within Age, and without IlTue, then to go to the Teftator's Brother ; the Son fhall have the Produce of the perfonal Eftate, and only the Capital, in cafe of the Infont's Death, (^c. fhall go to the Brother. Page 500 One pofleffed of a perfonal E- ftate devifes, that if his Wife die without Ilfuc by him, then 80 /. fliali be paid to his Brother,- this good, even though the Brother dies in the Life of the Wife. 563 Devife of a Truft of Money on Failure of Iflue generally, or a Bond or Covenant to pay Money on fucli Fai- lure, good ; fecm of a Limi- tation of a Term. 566, 750 One poflelfed of a Term for Years devifes it to A. and B. and if either of them die and leave no Heir of their re- fpcdlive Bodies, then to C. this held a good Limitation to C. if A. or B, left no Iflue at their Death. 664 A Dcvife of a Term for Years to one for a Day, or ■m\ Hour^ is a Dcvife of the whole Term, if the Limitation o- ver is void, and it appears at the lame Time that the whole is intended to be dif- pofed of from the Executor. 665, 666 Devife of 400 /. to A. and if he die without Ifl"ue, then to B. this good, and to be in- tended if A. die without If- lue living at his Death. 748 9 Y C^iucjicf. A Table of the Principal Matters. €i)itiencE nnt patol ^ictjiacncE, Parol Proof, provided it be plain and indifputabic, ad- mitted in Cafe of a Will of a perfonal Eftate, efpecially where it is only to rebut an Equity arifing by Implica- tion. 'Page p, ii6 Parol Evidence, when concur- ring with the Conveyance, and only to rebut a pretended refulting Truft, admitted to fhew the Intention of the Party. 1 1 3 Under fome Circumftances the Plaintiff himfelf has been al- lowed a good Witnefs ; as where a Witnefs at the Time of his Examination was dif- interefted, but afterwards be- came interefted and Plaintiff in the Caufe, his Depofitions were, notwithftanding, allow- ed to be read. 288 So where the furviving Witnefs to a Bond was made Executor to the Obligee; in an Adion brought by him on the Bond, Evidence was admitted to prove the Plaintiff's Hand. 289 In what fpecial Cafes the An- fwer of one Defendant may be read againft another. 300 A. a Freeman of London^ pur- chafes an Eftate in the Name of B. but no Truft is decla- red, J. dies, and S. gives a Declaration of Truft ; this is good. 321 A Witnefs dies after having been examined, but before fuch Examination is figned by him ; the Depofitions no E- vidence. 414 But yet where the Defendant after Publication examined a Witnefs, and on the ufual Af- fidavit, that the Defendant, his Clerk or Solicitor had not fecn the Depofitions, got an Order to re-examine this Wit- nefs, but the Witnefs died be- fore a Re-examination, the Court gave Leave to the Defendant to make ufe of the former Depofitions of the fame Witnefs. Tage 415 In a Will of Land, one of the three Witnefles is Devifee of Part of the Land devifcd thereby ; Qti^re, whether not a good Witnefs if he has a- liened the Land without Co- venant or Warranty. 5 5y See more Tit. mUnzi^. <£fcape, J. lends Money to B. and C. on Bond, B. becoming a Bankrupt, and his Eftate be- ing alllgned by the Commif- fioners, y^. fues C. takes him in Execution on a Ca Sa\ and afterwards confents to his Efcape; yet J. fliall come in as a Creditor of the Bankrupt for a Moiety of his remaining Debt. 237 One committed in Equity, for a Contempt for refcuing an- other taken on Lord Chan- cellors Warrant, fuch Pcrfon not liable to an Efcape War- rant. 439 Where one is taken in E>iecu- tion on an Outlawry after Judgment, Debt will lie a- gainft the Sheriff for the E- fcapc of fuch Perfon, and need A Table ofitioJh vide aifo under Tit. SDccD0 ; Under-hand A- greemait under Tit. iJrxiTC-- Uicnt i vide Catching Bar- gains under Tit. Ipcic* Dcvifee under a Will dcfedive- ly cx<^^cuted, reprcfcnts the Will duly executed, and for a fmall Sum gains a Releafe from the Heir ; Releafe fet afidc. 239 W' here there is either fuppreflh veri or Jii^geftio faljj, it is good Reafon to fet alidc any Grant or Releafe. ibid. A Will of Lajid may be good at Law, as being well exe- cuted, and yet fet afide in Equity, as if obtained by Fraud, 28b Where an Executor proves a Will of a pcrfonal Eftate wherein one of the Legacies is forged, the Executor has no Remedy in Equity for this Fraud, but ought to have proved the Will, with a fpccial Refervation as to that Legacy. 388 Where the firft Mortgagee is a Witnefs to the fecond Mort- gage, tho' no aiftual Proof of his having known the Con- tents thereof, yet fince it will be prefumed that he might have known the fame, this iliall poftpone him. Page 394 One makes a voluntary Settle- ment on her Nephew, keep- ing the Deed in her Cuitody, and in the fiid Settlement there is no Power of Revo- cation ; afterwards the Fa- ther of the Nephew by Stealth gets an attcfted Copy of the Settlement, and then the Aunt having burnt the Deed, fettles the Premilfes on an- other Nephew j the firft Ne- phew's Bill to cftablifli the Copy of the firft Settlement, difmiffed with Cofts, and en the fecond Nephew's Bill the attcfted Copy decreed to be delivered up, as having been inthrcdtly gained. 577 Of t>\'o voluntary Settlemenis, if the firft be made abfolute againft the Intention of tho Party, the fecond fliall pre- vail. 581 On a Bill to fet afide a Decree againft an Infant for Fraud, if fuch Decree be not frau- dulent, tho' in every Refpcifl not fo equitable. Court will do nothing in it, 734 Equity will all'ift a Compofition of a Debt, if obtained with- out Fraud, and on a fair Re- prcfcntation, 751 Frauds and Terjf/rics. See frfc ^ Ta B L E of the Principal Matters. JTrccIjoItJ, Ihifigs fixed thereto. Sec alfo Matters controverted betivixt the Heir a;:d Executor under Tit. ipcir* Hangings, Chimney-GlafTes or Picr-GlalTcs are Matters of Ornament and Furniture, and not to go with the Houfe. Page 94 One devifes Lands to his Exe- cutors for and until Payment of his Debts, and then to J. for Life, C5c. this but a Chat- tel Intereft in the Executors, and the Freehold well vefts in J. 509 AL L Lands in E//gla//d be- fore the Conqueft were in Nature of Gavelkind, and after the Introduction of Te- nures by Knights- Service, yet has the Right of Rcprefenta- tion continued. 64 As if one of the Sons dies in the Life of the Father, leaving a Daughter, and af- terwards the Father dies, the Daughter fliall have hor Fa- ther's Share. 65 AH Lands in Kent are pre- fumed to be Gavelkind. 475 How, and in what Rcfpcds a Dcvife of a Chattel Intereft differs from a Grant thereof. Page 575 An Executor pays a Legacy given to a Child, to the^Fa- ther as Guardian 5 this ill, notvvithftanding the Teftator by Parol on his Death-Bed had direded it. 285 Guardians appointed by Will, according to 12 Car. 2. cap. 24. have no more Power than Guardians in Socage, and are but Truftees, on whofe Misbehaviour, or gi- ving Occalion for Sufpicion, the Court of Chancery will interpolc. 703 If a Father in low Circum- ftanccs endeavours to marry his own Child to one who has an Eftatc not any ways proportionable, the Court of Chancery will interpofe. 705 A Will recommends it to Guar- dians to a£t with the Advice of y. S. vvho is afterwards attainted ,• this Superinten- dcncy devolves upon the Great Seal. 706 10 A ^cir. A Table of the Principal Matters. Heir and Jncejior. See alfo HEIR not always, and of Nccefllty to be intended a Word of Limitation. Page 59 So where the Devife was to the Heirs Male of J. S. be- gotten ; y. S. having a Son, and the Teftator taking No- tice that J. S. was then Jiving ; this is a fulficient Defcription of the Teftator's Meaning, and the Son al- lowed to take, tho' ftri(5tly fpeaking he was not Heir. 229 A voluntary Conveyance made to the Brother of the Halfi Blood, but which was de- fective at Law, made good by a Court of Equity againft ; the Heir. 60 Though where there is not that Confideration of Blood, a voluntary Conveyance of a Copyhold, or other Eftate, will not be helped in Equity againft the Heir. 354 One feifed of Lands in Fee binds himfelf and his Heirs in a Bond, and having devifed his Lands to J. S. in Fee, dies i in a Bill brought by the Obligee to fubjed the Lands devifed, the Devifor's Heir muft be made a Party. 99 In a Devife to a Man and his Heirs, the Word Heirs is 2 ufcd only to Meafure out the Quantity of Eftate which the Devifee is to take, and not as a Word of Purchafe; for which Reafon if the De- vifee dies in the Life of the Dcvifor, his Heirs fliall not take. Tage 397 An Heir at I-aw, or Heir Male to the Honour of the Family, if probable Caufe to con- tend for the Family Eftate, fliall not pay Cofts. 481 One feifed in Fee mortgages to J. and afterwards binds him- felf and his Heirs by Bond to J. and diesi if the Heir comes to redeem, he muft pay the Bond-Debt as well as the Mortgage j but if the Heir afTigns the Equity of Redemption to J. S. he fliall redeem upon Payment of the Mortgage only. 775 Devife to J. for Life, Re- mainder to the right Heirs of y. S. (then living j) the Fee-fimple defcends to the Heir at Law of the Tefta- tor until the Contingency happens. ^^S An Heir, in an Adtion brought againft him by a Bond-Cre- ditor, is fued as for his own Bebt in the 7:)ehet and Df- tinet ; and before the Sta- tute of 4 C^ 5 ^. C7 M. cap. 14. on his having aliened before Adion brought, was refponfiblc in Equity for the Value of the Land aliened. 777 Matters A Table of the Pr'tnc'tpal Matters. Matters controaerted betivc£7i the Heir and Executor. Hangings, ChimnGy-GUjlTcs or Picr-GIafles, ns Matters oF Ornament and Furniture, go to the Executors, and not with the Houfc. Ta^e 94 Where Money put out on Secu- rities was by Marriage Arti- cles alTigned in Truft to be inverted in Land and fettled on the Husband for Life, Re- mninder to the Wife for Life, Kcmainder to the firft and every other Son in Tail Male, Remainder to the Daughters in Tail, Remainder to the right Heirs of the Husband j and the Husband, having al- tered fome of thcfe Securi- ties, and put them out in Truft for himfelf, his Exe- cutors and Adminiftrators, devifcd his real Eftate in the County and City of 7ork and cifcwhere in Great 'Britain, to J. S. but gave his perfo- nal Eftate and all his Secu- rities for Monies to his Wife, whom he made Executrix, and afterwards died without llfue J decreed that as to the Money on fuch Securities as had not been altered by the Husband, this was by the Articles turned into Land, and fliould defcend to the Heir j but that with refped I to the Securities which were j altered by the Husband, and the Money placed out I in Truft for himfelf, (jc. thcfe fhould pafs to the Wif<'' as perlbnal Eftate. 'Pa^e Leflbr dies on Michaehi/as-day and before Sun-fet, the Heir Dr Jointicfs, not the Execu- tor, fliali have the Rent. Tage 177 But if tho Tenant had pi;id the Rent on tlic Day, the Pay- ment had been good, tho' the Leflbr had died before Sun-fet, but his Executors to Account for this Rent to the Jointrcfs. 180 Qvdre tmnen. One fettles Lands, on his Marri- age, on himfelf andWife, and Ifl'ue of the Marriage, and conveys Bankers Allignmcnts which are but perfonal Eftate in Truft, declaring the Profit thereof to go to the fame Perfon as by the Settlement would be entitled to the Land, and if the Annuity fliall be redeemed by Par- liament, the Money to be inverted in Land and to be fettled to the fame Ufes; thcfe Annuities and Bankers Allignmcnts, after the Wife's Death, fhall go to the Heir, and not to the Executor. 205 An Incumbent of a Church pur- chafes the Inheritance of the Advowfon and dies; his Heir, and not his Executor, fliall prcfent. 364 Where Money is covenanted to be laid out in a Purchafe of Land to be fettled on A. in Fee ; on y/.'s dying before the Money is laid out, his Heir, and not his Executor, flialj have it. 483 But A Table oj the Priticipal Matters. But if J. himfelf has received any Part of the Money, this is a good Payment, and (hall not be repaid by the Execu- tor to his Heir. Tage 483 So on A's Death, his Heir fliali recover the Remainder of the Money not received by him. ihid. In like Manner, if A-s Heir is an Infant, and the Remain- der of the Money is decreed to be brought into Court, it fliail be looked upon asLand. 486 J. S. Leffec of Land to him and his Heirs for three Lives, afligns over the whole Eftatc, Tcferving a Rent to himfelf, his Executors, and dies; his Executor, and not his Heir, fhall be entitled to the Rent. 55 5 See more under Eeilt, and Per- fonal Eftnte. Heifi catching ^argams. Devifee under a Will defedive- ly executed reprefents the VVill as duly executed, and for a fmall Sum gains a Re- leafe from the Heir; the Re- leafe fet afidc. 239 A Son, who after his Father's Death is a Remainder-man in Tail, fells his Remainder at an under Rate; the Court fet afide the Conveyance. 310 J|?OtCljpot» Vide JLonUOlU In an Adion againft the Hun- dred for a Robbery, wherQ the Suit mud be commenced within a limited Time, or if the Time be fo far elapfed, as that the Statute of Limi- tations would be a Bar, were the Judgment to be reverfed, the Court, after a Writ of Error brought to reverfe the Judgment for want of an O- riginal, will give the Party Leave to file one; fec7is where the Plaintiff may be- gin a new Adion. Page 41 2 Inftrudions for an Original a- gainfl an Hundred for a Rob- bery were brought to the Curfitor within the Year, but the Writ pafTed the Great Seal after the Year, though teftcd within the Year, {piz.) when the Inftiudions were brought ; this held good, be- ing warranted by the Prac- tice of the Curfitor's Office. 437 I N the Courts allowing Main- tenance out of a Jew's E- flatc to his Daughter turned Proteftant by Virtue of i J7m£^ cap. 30. it is no Ob- jcdion, that the Daughter is above forty Years of Age, or married, or that the Jew is dead. 524 3im' A Table of the Principal Matters. Slmplicaticn. Ejlate by Iinplicatiori. No Eftatc raifed by Implica- tion in a Will fhall dcftroy an cxprcfs Eftate ,• ms where a Devife was to y^. for Life, Remainder to his firft and every other Son in Tail Male, and for want of KTue Male of J. Remainder over; this gave no Eftate-tail to /i. by Implication. 'Page 54, 333 ^'/isre autem. 605 Secvs where the Limitation is not carried over to all the Sons, fince if the Father were not to have an Eftate-tail, fuch Son Si^ is not mentioned in the Limitation would be excluded. 59 Ht "Side. 754 Where a Perfon is entruftcd to convey a Fee, he muft con- fcqucntly and by ncccfliiry Implication be fuppofed to have a Fee, 171 Devife of Land to the Tefta- tor's fecond Son for his Life, he or his Heirs paying a Rent thereout to the eldeft Son for his Life, and after the Death of the fecond Son and his Wife^ Remainder to the firft, (^c. Son of the fecond vSon ; the Wife of the fecond Son had an Eftatc for Life by Implication. 472 jnciiml)?nncciQr> Vide %ti\X: riticisf. Bfnfanh One devifes 1000/. to lae laid out in a Purchafe of Land in Fee for the Benefit of yj, yy. and C. and their Heirs, e- qually to be divided ; y^. dies leaving an Inflint Heir; 'B. and C. may eledt to have their Share of the Money paid them, but the Infm't cannot. 'Page 3 89 Where a Decree nijj Canfa is had againft an Infant, on the Infant's coming of Age, and before the Decree made ab- folutc, he may put in a new Anfwer. 5 04 One borrows Money during his Infancy, applying it to the buying of Neceflluies, and afterwards coming to Age devifes his Lands for the Pay- ment of his Debts; thefc Debts contraded during In- fancy are within the Truft. Infant borrows Money and ap- plies it towards Payment of his Debts for Neceflaries ; he is liable to pay this in E- quity, though not at Law* 559 No Laches to be imputed to an Infant. 718 On a Bill brought to fet afido a Decree againft an Infant for Fraud, if the lame be not fraudulent, th.ough in every Refped not fo equi- table, the Court will not fet it alidc, 734 10 B Infiint A Ta B l e of the Principal Matters. Infant aggrieved by a Decree, not bound to ftay till he is of Age, but may as foon as he thinks fit bring a Bill of Review, re-hear, or bring an original Bill, and alledge fpccially the Errors in the former Decree. T^age 737 3!njunSion. An Injunftion upon an Attach- ment, T^edivnis^ or upon the Defendant's praying Time to anfwer, does not extend to ftay Proceedings in the Spiri- tual Court without fpecial Order. 301 LclTee for Years without Wafte, Remainder in Fee to a Bi- fhop ; Leffec injoincd from digging the Ground for Brick. 527 See £2IO(fe» In cafe of a Truft-Eftate de- vifed to be fold, or devifcd to 7. S. if the Will be dif- puted after two Trials in Its Favour ; Equity will grant a perpetual Injundion. 671 So after feveral Trials in Ejed- mcnt, and Vcrdids in all in Favour of the Will, Equity, on a Bill of Peace, will grant a perpetual Injundion. 672 A perpetual Injundtion will the rather be granted, where this Court direds the Trial, or where the Caufe, againft wViich the Vcrdids arc found, is odious in its Nature. 673 One of the late Dircdors of the South- Sea Company owes Money, which is recovered againft him at Law ^ though all his Eftate is taken from him by the late Ad, yet the Court denied an Injundion. 'Page 69^ Jnvclment where the Court permits the Inrolling of a Recognizance after the Time elapfed, it always takes Care not to hurt an intervening Purcha- fer. 340 If after a Decree, a Ca'veat hz entered to ftay the Signing and Inrolling, it ftays the Signing twenty-eight Days after the prefenting the De- cree to the Chancellor to be inrolled, and Notice given by the Chancellor's Secre- tary to the Clerk on the other Side. ^oy 3!ntcrea of C)3oncp* When a Truft is raifed to pay Debts, Simple Contrad Debts fliall carry Intcreft. 2 19 Intcreft allowed but from the Time of the Maftcr's Re- port confirmed, where the Debt is not before liquidated. ?77 Intcreft allowed for a Ship and Cargo wrongfully taken by the Defendant; and this be- ing done in the hidies^ In- dian Intcreft allowed, de- duding the Churge of the Return. 395 Where / A T A B L E of the Principal Matters. Where the Maftcr's Report of t\'iQ 2iia?itu?/i of Intercft due on a Mortgage is confirnaed, the Intercft from that Time becomes Principal, and will carry Intercft. iP^^t" 453,480, 653 One devifes his pcrfonal Eftate to his Son, and it he die under Age, and without If- fue, then that it fliall go over to the Tcftator's Bio- therj the Son fhaJlhave the Produce or Intereft thereof, and only the Capital (in Cafe of his Death under Age, and without IlVue) fliall go to the Brother. 500 An Annuity left the Widow by the Huiband's Will decreed to carry Intereft from the Day on which it was pay- able, and not only from the fubfcquent Day of Payment after the Arrear incurred. 543 Mortgagor referving fix per Cent, with a Provifo to take five if paid within three Months i on a great Arrear incurred, the Court will not relieve; fccus in Cafe of a fmall Slip of Time. 652 Where a Mortgagor figns an Account, whereby fo much is admitted to be due for Intercft J this will not carry Intereft, unlefs the Mort- gagor by fome Letter or Writing under his Hand a- grees to make it Principal. ^5 3 By a Marriage Settlement and Will 15000/. was fecured for a Daughter's Portion, payable at eighteen or Mar- riage, the Whole charged upon an Eftate in Inland i but the Settlement and Will were made, and alfo all the Parties lived in Englafidi the Money decreed to be paid with E7iglijh Intereft, and without dedueting the Charge of the Return from Ireland, 'Page 696 Where and from zvhat Time Legacies and 'Portions Jball carry Intereft, vide Tit. Le- gacies and Portions, lointnuiijts nnti Cfiiauts in Coniiiioiu A Surrender of a Copyhold to the Ufe of J. "B. and C and their Heirs, equally to be divided between them and their Heirs refpetftively j tliis held by two Judges in B.K. to be a Tenancy in Com- mon, by realbn of the ap- parent Intention of the Sur- renderor, contrary to the Opinion of Holt C. J. who thought it a Jointenancy. The Words equally to he di- vided did not originally make a Tenancy in Com- mon even in a Will. 21 J. by Will devifes Lands in Truft, that the Profits lliall be equally divided between his Wife and Daughter (tlic Heir of the Teftator) during the Wife's Life J by the Opi- nion of all the Judges of CU. the Mother and Daugh- ter arc Tenants in Common for A Table of the Principal Matters, for the Wife's Life. Tage 34 Dcvife of a Debt to two Share and Share alike, equally to be divided between them; and if either of them dies, then to the Survivors and Survivor of them ; they are Tenants in Common, and not Jointenants \ the Words relating to the Survivorship being intended only to carry over the Share of him that might die in the Life of the Tcftator, and prcferve^ the Lapfing thereof, ^utcre ta- me n. 9 6 A Devife of a Surplus of a per- fonal Eftate to four equally, Share and Share alike ; one of the four dies in the Life of the Teftator ; this being a Devife in common, the Share of the Perfon dying is be- come a lapfed Legacy, and diftributable according to the Statute. 700 Irehfid. A Daughter's Portion fecured by an Eftate in Ireland by a Settlement made in Rngland^ and the Parties living in Eng- land^ fhall be paid in Biig- lajid without the Charge of the Return. 696 lutigment. vide Tit. ^ecit- 3:Urf05iaiOIT> Vide Tit. Coillt find Covrt of Chancery, and Tit. ©piritiuil Court. Where one is fiied in an inferior Court for a Matter out of tliC Jurifdidion, if in Vacation- Time, a Prohibition lies from the Court of Chancery, on Affidavit that the Matter is out of the Jurifdidion ; but no Affidavit is nccclTary where on the Face of the Declara- tion the Matter iippcars to be out of the Jimfdidion. 'Page /\']6 By Imparling generally the Jurifdidion is admitted, and no foreign Plea will be re- ceived afterwards. 477 J^i'no:. Sec p?cr0Q:ntilJC* 'Ruftees not to take Ad- vantage of their own T Laches. 236 No Laches to be imputed to a Feme Covert or Infant. 718 ICclfcsi, and Co'venaiits therein. See Ejiate for Life^ and Eftate for Tears, under Tit. Leflee for Years, though fans Wafte, can pull down an Houfc A Table of the Principal Matters. Houfe, or Trees which [arc a Defence of Ornament to the Houfe. ^^g^ 5^8 Hard that Lcflee for Years without Wafte fiiould enjoy the Trees or Materials of the Houfe when he pulls them down ; the Intention of that Claufe only being that the Lcffee for Years (hould be as difpunifliable as before the Statute of GloiJCefter. ibid. A College reftraincd by its Con- ftitution from Leaiing, ex- cept for Tvvcnty-onc Years, and at a Rack- Rent, makes Orders, recommending it to their Succcflors to renew at lefs than their Rack-Rent i this not fovourcd, as tending to a Breach of the Statutes. Ifjacp nntJ Icffatrcd, Vide alfo Tit. g)ati B. and C and if any die before twenty-one or Mafriage, the Portion of the Child fo dying to go to the Survivors or Survivor j one of the Children dies in the Life of the Teftator, this not a lapfed Legacy, but fliall go to the furviving Cliil- drcn. 274 An Annuity is left by Will to the Teftator's Grandaughtcr, but if fhe marries with the Executor's Confent, then a Portion; the Grandaughtcr without Confent of the Exe- cutor marries a Man worth nothing j the Husband is not entitled to the Money, the having married with Con- fenr, oc. being a Condition precedent to the veiling of the Portion. 284 One poifeffed of a perfonal E- ftate devifes, if his Wife dies without Ifluc by him, that then 80/. fhall be paid to his Brother, the Brother dies in the Life of the Wife, who afterwards dies without If- fue; decreed thel>egacy to be paid to the Reprcfentativcs of the Brother. 563 A devifes the Surplus of his perfonal Eftate to four, e- qually Share and Share alike, leaving J. S. Executor in Truft J one of the four dies in the Life of the Teftator, his Share is lapfed, and on the Teftator's Death iliall go according to the Statute of Diftribution. 700 J. amongft other Legacies", leaves 1000/. to his Niece B. at eighteen or Marriage, and gives the Refidue of his perfonal Eftate to be laid out in Land, and fettled in ftrid Settlement on C. for ninety-nine Years, Remain- der to his firft, (jc. Son in Tail ,• afterwards J. by Co- dicil devifes, that the 1000/. given by the Will to his faid Niece fliould be made up 6000 /. payable at twenty- one or Marriage, the Niece was eighteen at the Time of the Teftator's making his Codicil and under twenty- one j decreed flie fliould have the Intereft of the 6000/. from the Death of the Te- ftator, and that C. was only entitled to the Rejidmtm^ exclufive of the 6000 /. 783 Jhatement and reffjnding of Legacies. See alfo under Specific Legacy. Charity Legacies that are pe- cuniary, fhall, on a Deficien- cy of Aftets, abate in Pro- portion with other pecuniary Legacies. 423 Whether A Table of the Principal Matters. VV^hethcr a Legacy of 2co /» given by the Tcftatrix for a Monument for her Mother ought, on a Deficiency of Aflets, to abate in Propor- tion. Tnge 423 As Legatees are to abate in Proportion, fo if an Execu- tor pays one Legatee, and there is not enough to pay all, the Legatee who is paid fliall refund in Proportion ; fo if one Legatee recovers liis Legacy in Equity, and there is not enough to pay the reft, he fjiall refund; jv- cus if the Deficiency of Af- fets arifes by the wafting of the Executor. 495 One having two Sons and a Daughter, by Will gives to each 2000 /. payable at twenty-one, provided if Af- fcts fall iliort to pay the Le- gacies, the Abatement to be born out of the Sons Lega- cy ; the Tcftator leaves Af- fcts to pay the whole, but the Executor afrerwards waftcs; the Daughter's Le- gacy ftiall have the Prefe- rence. 668 In iohiit Cafes a Legacy (ImU or JJjall not he a Satisfa'ciion of a T)ebt or other Tiemand on the T'ejfators EJiate. A Man has one Daughter to whom 8000/. was fecured by Marriage Settlement, and af- terwards he gives her 8oco/, by his Will for her Portion, and 200 /. per AJinum ,• the Daughter fhall have but one 8000/. tiTough flic may cIcl^ which of the Portions ■Hie pleafcs. Va^e 147 Wh.cre ■&. Father is Hound to give a Portion with his Ciiild, and afterwards by hi;, W'iU gives a Legacy to fuch Child of as great or greater Value than the Portion, this is a Satiifadion of the l^ortioni 299 But a Legacy is not to be taken in Satisfaction of a Debt up- on an open Account, where it is uncertain on which Sicie the Ballance lies; nor in Sa- tisfaction of a Debt con- tracted after the making the Will. \hid. One Covenants to leave his Wife 620/. Party dies in- teftate, and the Wife's diftri- butory Share comes to more; this is a Satistadion. 324 One being indebted to his Ser- vant for Wages in 100 /. gives her a Bond for this loo/, as due for Wages, and afterwards by Will gives her 500/. for her long and faithful Services; this is not a Satisfaction for the Bond. 408 Pecuniary Legacies are given by the Will, and afterwards greater Legacies ardfc given to the fame Pcrfons by the Codicil ; thcfc latter no Sa- tisfaction for tlie former, be- caufc the Codicil is Part of the Will, efpccially where they arc not cjnfdcm generis. 423 10 D Sitrf'his A Table of the Principal Matters. Surphis ajid rejiduary Legatee. Vide Tit. etCCUtO?, and /;/ z.vhat Cafe the Executor jJoall be ojily a '■Xriijlee for the Sur- plus. A^ejiiptiou of a Legaty. Tcftatrix devifcd to her Grand- child a Debt of 4000 /. ow- ing to her by 'J. S. provided if any Part of the Debt fliould be paid in before the Tefta- trix's Death, then fo much to be made good to the Grandchild out of the Sur- plus of the Tcftatrix's Eftate j afterwards the Teftatrix re- leafed 2000/. of the faid Debt to J. S. without having received any of the Money ; decreed that this was no A- demption of the Legacy pro tanto^ but that the Legatee or her Reprefentatives were entitled to the whole 4000/. as much as if the fame had been paid in to the Teftatrix. Tcige a6\ J fortiori if the Teftatrix had called in the Debt, it would have been no Ademption. 464 A Father by Will gives his Dai%hter a Portion of 500 /. and afterwards in his Life- time gives her 300/. for her Portion in Marriage, and four Years afterwards dies without revoking the Will, the Husband is a Bankrupt j the Alfignecs not entitled to the 500/. Legacy, nor any Part thereof. 6'6i Limitntion of Ccrniis fo? PcnrS* Vide this Title un- der Eflate for Tears. Statute of Limitations. Where a Bill in Equity abates by Death, if the Executor or Adminiftrator will not re- vive within fix Years, it is within the Statute of Limi- tations j but if there be a Decree to account, and the Suit afterwards abates by Death , and the Executor does not revive within fix Years, this is not within the Statute. 'Page 742 London nilD t(jC Cuftom tljercof. J. a Freeman of London pur- chafes in the Name of 'B. who at the Time of the Pur- chafe executes no Declara- tion of Truft, A. dies, after which 5?. gives a Declara- tion of Truft ,• this good a- gainft the Cuftom. 321 Where a Freeman of London leaves no Wife, the Children are entitled to one Moiety of his pcifonnl Eftate, the other Moiety being the dead Man's Part. 341 Grandchildren of a Freeninn are not within the Cuftom to come in for an Orphan- age Part. ibid. A Freeman's Son has had fe- veral Sums from his Father, the Certainty whereof docs appear. A Table of the Principal Matters. appear, he has likewifc had ieveral other Sums, the Cer- tainty whereof does not ap- pear otherwife than by the Son's Anfwer ; thcfe being all brought into Hotchpot, the Son fhall come in for his Orphanage Part. 'Page 342 A Jointure made by a Free- man on his Wife in Bar of Dower, will not bar her of the Cuftomary Part, unlcfs that be alfo cxprclly men- tioned. 530 Lflnd, or Money covenanted to be laid out in Land, not within the Cuftom of Lon- don. 5 3 -» ^47 A Freeman of London may at any Time during his Life, even in his laft Sicknefs, in- veft his pcrfonal Eftate in Land, whicli will ftand good, though the Freeman fhall have (iud he did this on Pur- fofe to defeat the Cuftom. 532,7'9 Where a Freeman leaves his W^idow a Legacy, and there is fufficicnt out of his Te- fiamentary Part to pay the lame, flie ihall have her Le- gacy and Cuftomary Part alfo. 533 On a Freeman's Widow's Cu- ftomary Part being barred by Compofition, who fhall have the Benetit of it ; whether the Husband or Children,- alfo whether a Child's Or- phanage Part be barrable by a Releafe or Covenant for a valuable Conlideration. 634 On a Child's releafing to his Father his Orphanage Part, if the Rclcafc be gained by j Threats or unduly, the Himc will be fet afidc in Equity. T^age 639 Leafes given to a Child by a Freeman to be brought into Hotchpot and valued. 641 One for a valuable Confidera- tion contracts to become a Freeman of London^ but dies before he has taken up his Freedom ; his perfonal Eftate fliall be divided as if lie had been a Freeman, but his Children not to be City Orphanj. 7 1 o Lnnnticfe. where the Husband was a Lu- natiek, the Wife, though an IrijJj Pcerefs, committed for not producing hmi. 701 ^^nintcnance fa> CljilOicn. Sec alfo pa?ticn0, d On his Son's Marriage fct- • ties Lands on himfeif for Life, Remainder to the Son for Life, Remainder to Tru- ftees for 1000 Years for rai- ling Portions for Daughters payable at twenty-one or Marriage, with Maintenance in the mean Time, to com- mence the firft Quarter after the Father's Death; the Fa- ther dies leaving one Daugh- ter, and the Grandfather li- ving; the Bill prayed a Mort- gage of the Revcrfion for the Infant's Maintenance, but the A Table of the Principal Matters. the Court ftrongly iaclined againft it. Tage 488 In the Court's allowing Main- tenance out of a Jew's E- ftate to his Daughter turned Proteftant, by Virtue of i J7m- cap. 30. it is no Objcdion that the Daughter is above forty Years of Age, or ruar- ried, or that the Jew is dead. 5 ^4 A Mandamtis lies to the Spiri- tual Court to dired them to do Right, as a Prohibition \ does to ftop them from doing Wrong. 47 Whether Error lies on a Rule or Award of a Mandainus. 348 Writ of Error on a Judgment on a Mandamus fincc the Statute p Jnn. no Superfe- deaf to a peremptory AJa^i- damus. 3 5 i ^arriaffC, fee under Tit. 1Sa= ton anH jfeme. Agreements oil Marriagey and Under- hand Agreements in Fraud of Marriage Agreements.^ fee under Tit. agvcement. Marriage-hrocage "Bonds. Husband before Marriage cove- nants to give a Releafe to the Wife's Guardian of all Accounts ; this Agreement fct afide in Equity, being within the fame Mifchicf as a Marriage - brocage Agree' ment. ^Page 1 1 8 A Son on his Maniage being to have 3000/. Poition with his Wife, privately, without Notice to his Parents who treated for the Match, gives a Bond to the Wife's Father to pay back 1 000 /. of the Portion fcvcn Years after- wards ; this Bond void in Equity, and will not be made better by being af- figned to Creditors. 496 Kefir aims on Marriage. One by Will leaves an Annuity to his Grandaughter, but if flic marries with the Execu- tor's Confent, then a Por- tion,- the Daughter without the Confent, ^c. marries a Man worth nothing \ the Husband not entitled to the Portion, the having married with the Confent of the Ex- ecutor being a Condition precedent to the veiling of the Portion. 284 Money agreed to he laid out in Land, fee i^jjrccmcnt ; alfo Matters controverted between the Heir and Executor, un- der \^tiXy and alfo (EleaiOlU ^op A T A B L E ^f the Principal Matters. ^ojtptyc* Vide Jntcreff. As to buying iu I/iambra/jces, aud what Ufe may he made thiveof^ vide Tit. 'g>CCUri- ticS. As to Concealment of Mortgages^ vide CoilCCui- where Money is agreed by Ar- ticles to be laid out in Land, the P:irty who would have the fole Intcreft in the I-and when bought, niay (if of Age) clccl'to have the Mo- ney paid to him, and that it fliould not be laid out in Land. 'Pa^e 130, 389, 470 Huiband borrows Money, and he and his Wife levy a Fine of the Wife's Lanxl as a JSIoitgage for it, after which the Husband by Will gives Legacies to Charities to the Amount of his pcrfonal E- ftutc J the Mortgage fliall be paid out of his perfonal Af- fets, though the charitable Legacies are loft thereby ; but ail the Husband's Debts, though by Simple Ccntrad, fliaH be preferred to the Mortgage. 264 ^lortgagc may be without a Covenant or Bond for Pay- ment of the Money. 271 One agrees for a valuable Con- fideration to convey Lands to y. S. and afterwards makes a Mortgage for a valuable Coniideration, and without Notice ; the ISIortgagec fliall hold his Mortgage againft the intended Purchaferj fe- cus of a Judgment Creditor v\'ho has only a general Se- curity, and no Specific Lien upon the Land. Page 277, 279 Mortgage m Fee is made re- deemable upon Payment of 300/. and Intertfi-, upon any Michaelmas Dny upon Hk Months Notice ; Mortgagor dies, having devifed his per- fonal Bftatc to his Wife; perfonal Eftate liable to pay the Mortgage. 291 A Covenant to pay the Mort- gage Money not fuable in Equity, unlefs the Covenan- tor receives the Money j as where a Feme Sole feifed of Land mortgages and mairies B. who on an Aingament of the Mortgage covenants to pay the Money, and dies ; ^.'s perfonal Eftate not lia- ble in Equity to pay it. 347 Where a hrfl: Mortgagee is a Witncfs to the fecond Mort- gage, tlio' no aAual Proof of his knowing the Contents thereof, yet (ince the Pre- fumption is, tliat he might have known the fame, this iliall poftpone him. 354 Mortgagee of a Ship by Deed trufts the Mortgagor with the original Bill of Sale, who indorfes thereon fubfequent Mortgages or BilTs of Sale of fcveral Parts of the Ship, and Mortgagee acquiefces ; this is Evidence of an AlTent in fuch Mortgagee, and fhall poOpone him. ibid. Mortgagee fliall not oneratc his Pledge with Cofts which he cccalions by an unjuft Defence. loE 395 If A Table of the Principal Matters. If there are not Allets to pay all the Legacies, a Mort- gagee, where the Security is fufficicnt, iliall not be paid out of the pcrfonal Eflatc. Tageqio, 731 Special Agreements toiichi7ig the Kedemptiofi of Mort- gages. One for 800/. Confideration grants a Rent-Charge of 48/. per Aim. in Fee, upon Condition, that if the Gran- tor fhall give Notice, and pay in the 800 /. by Inftal- mcnts, viz. icoA at the End of every lix Months, and Aiall do this during his own Life-time, the Grant to be void \ the Mortgage was made about 60 Years fince, when the legal Intcrcft of Money was 8 /. per Cent. and the Mortgagor dead ,• decreed not redeemable. 268 In Cafe of a Mortgage, no Claufe can confine the E- quity of Redemption to the Life-time of the Mortgagor, or to him and the Heirs Male, . or the Heirs only of his Body. Hcdemption^ Foreclofure. Exchequer Annuities mortgaged may be fold upon Notice without a Decree of Fore- clofure. 261 Mortgage of a Rent redeem- able at a greater Diftance of Time than a Mortgage of Land. 270 I Mortgage tlio' ever fo old is redeemable, if Intercft has been paid. ^Page 271 Firft Mortgagee takes a Re- Icafe of the ultimate Equity of Redemption ; this docs not oblige him to pay off the intermediate Mortgages, if he will u'aive the Rcleafe. 39) One feifed in Fee mortgages to A. and afterwards binds him- felf and his Heirs by Bond to J. and dies J if the Heir comes to redeem this Mort- gage, he muft pay off the Bond as well as the Mort- gage, but the Allignee of the Heir may redeem upon pay- ing the Mortgage only. 775 So if one polTeffcd of a Term for Years mortgages it to A. and afterwards becomes in- debted by Simple Contrad to A. and dies, his Executor fliall not redeem the Term without paying as well the Note as the Mortgage; fecus if any Creditor of the Te- ftator brings his Bill to re- deem. 7765 777 J!5e txut Ecirnum* See Tit. TT/HERE a frft Mortga- *^*^ gee iuho attejls a fecond Mortgage will he prefmned to have had Notice^ fee under Tit. i^£j2tn:an;e* The A Table of the Principal Matters. Executors, Crc. of the Daugh- ter, fls before that Statute it woukl have been liable to Occupancy, nnd not to the Heir of the Tcflator, as ProHts undifpofcd ofaud rcfuiting to him. ^Page 34 The Court cannot take Notice of Foreign Laws and Cu- ftomSj unlcfs they are proved, 'Pageo,i\ £)bI(0atlOIlS(* Vide 'BontJiS, ©atlj. Vide alfo affitiaDft, A Peer of the Realm is to put in his Anfwer upon Honour: But his Examina- tion on Interrogatories, or as a Witnefs, muft be upon Oath. 146 Where the Suit was frivolous, a Quaker Defendant was .al- lowed to put in his Anfwer without Oath or Affirmation. 781 ©ccupant J. by Will devifes Lands to Truftecs and their Heirs, in Truft to divide the Profits equally between his Wife and Daughter (the Heir of the Teftator) during the Wife's Life, and after her Death he devifes the fame to the Ufe of his Daughter in Tail, with Remainders over J the Daughter dies without Iflue and intcftate during the Mother's Life i rcfolvcd that the Mother and Daughter were Tenants in Common, and that the Mo- ther fliould have a Moiety of the Profits during her Life, and that the other Moiety by the Statute of Frauds and Perjuries Ihould go to the iDffcr. An Offer made during a Treaty which afterwards breaks off, or upon Terms which are not accepted, not binding. Ah Office. Appointment by Deed of par- ticular Annuities to be paid out of an Office, counter- mandablc. 101 After Judgment in an Aclion on a Policy of Infurance, if Error be brought to reverfe fuch Judgment for want of an Original, the Court will not permit the Party to file an Original, in Regard if this Judgment were rcvcrfcd, the Plaintiff may begin a new xAdion \ fecus were it in a ^iiare Iinpedit^ or in an Adtion againft the Hundred for a Robbery, where the Suit mufl be commenced within a limited Time -, or had the Time been fo far elapfed, as that the Statute of Limitations had been a Bar if the Judgment iliould be rcvcrf.d. 4 1 ^ 'Ihc A Table of the Principal Matters. The Plaintiff recovered Judg- ment in an Adion at Law, but by Means of the Ilncfs of his Attorney, who had been difordered in his Head, an Original was omitted to be filed, and for want there- of a Writ of Error brought j upon Affidavit of thi*, the Court gave Leave, upon pay- ing the Cofts of the Writ of Error, to tile an Original. P^^^ 41 2, 413 Inftrudions for an Original a- gainft an Hundred for a Rob- bery were brought to the Ctivfitor within the Year, but the Writ pallid the Great Seal after the Year, though teftcd within the Year, viz. when the lnftru(5tions were brought ; this held good, be- ing warranted by the Praftice of the Curfitors Office. 457 £?pljun. Vide Lcniion* J. having outlawed S- brings a Bill againft S. iind like- wife againft C a Truftee for 'B. with refpcd: to an An- nuity, to fubjedt this Annuity to the Plaintiff's Dcbti the Attorney General ought to be made a Party, and the Plaintiff muft get a Leafc or Grant in the Court of Ex- chequer from the Crown. ^445 Where an Executor in Truft was outlawed, and a Wit- ncfs proved that he had in- quired after, and could not find him ; held not neceffary to make him a Party. T^agc 684 Debt againfl the Sheriff for an Efeape of one in Execution on an Outlawry after Judg- ment, may be brought cither in the tarn qnaiUj or at the Suit of the Party only. 687 Papift, WHERE aPapift is dif- abled to take Lajid, how ixv Equity will help the next Proteftant Heir to take Advantage of his Dif- ability. 353 By the Statute of 1 1 cj 12 7/ . 3. againft the Growth of Po- pery, a Papift under eighteen is difablcd to take only till Conformity J if above eigh- teen, difabled for ever. 354 pnrnpljrrnnlia. One dies indebted by Bond more than all his perfonal Afi'ets can pay; the Widow fliall have her BoJia Tarapherjhi- lia^ provided there be real Alfets to flitisfy the Bond. 729 Bo7ia Tarapherjwlia not devi- Hible any more than Heir- Looms. 730 A general Adt of Pardon, tho' with an Exception of all Of- fencw-i A Table of the Principal Matters. fences and Contempts profe- cuted at the Charge of any private Perfon or Perfons, yet held to pardon a Contempt in marrying a Ward of a Court of Equity. Tage 696 parol. Vide Agreement Tarol. "Parol E'vide?ice. Vide (S.M\^ ticncc. pnrKmncnt (Aa of). Vide g»tatiitc0. ^ricilege of Parliament. Suin? the Bail below, pending a Writ of Error in Parlia- ment, is a Contempt and Breach of Privilege. 685 ipnrtncrs). J. and B. Partners in a Gold- fmith'b Trade, arc bound in a Bond to J. S. J- and S. break otf the Partncrlhip and dividfe! their Stock ; J. S. the Obligee in the Bond, knows this, and that //. took upon him to pay the Debts, and after a great Diftance of Time brings a Bill againft the Executor of !B; yet he (7. .S.) fl^all recover. '682 j;5actic0. One feifed of Lands in Fee binds himfelf and his Heirs in a Bond, and devifes his Lands to J. S. in Fee, and diesi in a Bill brought by the Obligee in the Bond to fubjcd the Devifee to the Payment of Debts, the Devi- for's Heir muft be made a Party. Page 99 Where a Bill wants proper Par- ties, it is in the Power of the Court to ^ifmifs the Bill fans Prejudice, or to give Leave to amend, paying Cofts. 428 J. having outlawed '£. brings a Bill againft S. and like- wife againft C. a Truftee for S. with rcfped to an An- nuity, to fubjcct this An- nuity fo the Plaintift's Debt ; the Attorney General ought to be made a Party. 44J In a Suit on Behalf of a Cha-r rity for the Arrears of a Rent- Charge, not ncceflary to make all the Ter-tenants of the Land, out of which the Rent ilTues, Parties. 599 They only are Parties to a Bill againft whom Procefs is pray^ cd. 593 Where an Executor in Trult was outlawed, and the Wit- ncfs proved that he had in- quired after, and could not find him, held not ncceflary to make him a Pc^rty, 684 partition. On a Partition in Chancery every Part of the Eftate need not be divided, but fufficient if each Tenant in Common, Cjr- has an equal Share of the Whole, 446 loF m A Table of the Principal Matters. J^ittonase* See p?efentation. Tayment of a Legacy^ to whom to be made. Vide ICffaCP* Peer* A Peer of the Realm is to put in his Anfwer upon Honour, but his Anfwer to Interro- gatories, and Examination as a Witnefs, muft be upon Oath. Tage 146 Firft Procefs of Contempt a- gainft a menial Servant of a Peer is a Sequeftration NiJU as againft the Peer himfelf. Since the Union, a Scotch Peer made an ILnghflj Peer cannot by Virtue thereof fit and vote in Parliament. 582 A Peerage granted to an In- fant cannot be waived by him when he comes of Age. 586 Whether the Crown may cre- ate one a Peer againft his Will. 592 PcVpCtUItp. Vide alfo Limi- tatious of Terms for Tears under Tit. CffatejJ* Pevife of Lands to a Corpo- ration, in Truft to convey the ' Prcmifles to the Teftator's Godfon A. for Life, and fo to his firft Son for Life, and afterwards to the firft Son of that firft Son for Life, and in Default or Failure of fucli Ifl'uc of A. to convey them to B, for Life, CJC. this is a Perpetui- ty j but the Conveyance fhall be made as near the Intent of the Party as the Rules of Law will admit, {viz.) by making all the Pcr- fons in Being Tenants for Life only, but the Limita- tion to the Sons unborn muft be in Tail. 'P'lge 332 Where the perfonal Eftate fJjall be applied to €X07terate the real Vide Tit. Ucnl CUate* One dcvifcs all his Money in the Government Funds to be laid out in the Purchafe of Land to be fettled on the el deft Son of A. and the Heirs Male of his Body, Re- mainder over, and dcvifcs the reft of his perfonal Eftate to be fettled in the fume Manner ; the perfonal Eftate cannot be intailed, but the whole vefts in the cldcft Son, 290 Plafnfitf. The Court Ciinnot make an Order to examine a Plaintiff de bene eJJ'c^ as tiicy will to examine a Defendant ; and if the Plaintiff is an imma- terial one, the Defendant ought to haVc demurred to him. 595 Plate, A Table of the Principal Matters. y^y tvhat Words it JJjall pafs. "Sue <£jcpofition Of a:io?tJi5» pica, A Plea upon the Statute of 4 ^ 5 Aniid-i cop. 17. in Rclv;- tion to Bankrupts muft con- clude to the Country, and not to the Court, ^age 258 By Imparling generally the Ju- rifdidion is admitted, and no foreign Plea will be re- ceived afterwards. 477 poo?. A Bcqueft to one's poor Rela- tions how conftrucd. 327 See erpofition of iK{O2r!0. Liberty of the Rolls in Mid- dlffiX is within the Parifli of St, Dnnjlans in the Wejl, London^ ^ind contributes a Fifth towards the Repairs of the faid Church; but having diftinft Overfeers, and main- taining its Poor fcparately, is not entitled to a Share of the Charities given by Will or Deed to the Poor of St, T>7Jnfta}is, though entitled to a Fifth of all Collections made at the Church -Door or at Sacraments. 669 Before the Statute of 43 Eliz. no fuch Officers as Overleers of the Poor. 570 ponfoiisf 0| p^ouffjcnis fO! €()l(D2Cn* Sec alfo Tit. 03nintcniinrf. See Legacies or Tortious vefled under lir. ICUnciJ* See Trjt\l foY rai- fif/g 'Poitioiis and 'PayfKent of iJehts under lit. CtUff* A Man has one Daughter to whom 8000 /. is fccured by Marriage Settlement, and afterwards he gives her 8000/. by his Will for her Portion and 200 /. per Aii- mm; though the Daughter when of Age may eledt which Portion flie plcafes ; yet (he fhall have but one 8000 /. Tage 147 The elckft Daughter, \vhere there is a Son, or where the Eftate by a Settlement goes all to a Remainder-man, is; as a younger Child in Equi- ty, and as fuch entitled to a Share of the Piovifion ap- pointed for younger Chil- dren. 244, 451 Where a Father is bound to give a Portion with his Child, and afterwards by his Wiil gives a Legacy to fuch Child of uls great or greater Value than the Portion ; this fhall be taken in Satiiladion- of the Portion, 299 In a I'erm raifed to fecurc a Daughter's Portion, the Trufts were declared, that if the Husband fliould leave no Heir Male by thu Marri.ige, and fliould leave a Daughter or Daughters, then the Tru- ILcs were to raifc Portions payable A Table of the Principal Matters. payable to Daughters at twenty-one or Marriage j pro- vided that if the Husband fhould die without leaving a Daughter living at his Death, then the Term to ceafej there is no liTue Male by the Mar- riage, but there is a Daugh- ter who attains twenty-one and marries; the Mother dies, and the Daughter alfo dies in the Father's Life- time lea- ving Ifluc, her Husband ad- miniftevs to her, he fhall have no Portion. 'Pa^e 401 Truft of a Term to raife Por- tions out of Rents and Pro- hts, to be paid as foon as conveniently might be; by Virtue of the Word 'Profits Truftccs may fell or Mort- gage ; fccns if faid annual Profits. 415 Provifion for Children to he be- tlfitttn^ fliall extend to Chil- dren already begotten. 426 Term created for Daughters Portions, commencing after the Death of the Father and Mother, upon Truft to raife thePonlons from and after the CoiuTuenccment of the T'er?u; Father dies leaving a Daugh- ter,-decrecd the Portion isveft- ed, but not raifablc during the Life of the Mother. 448 Father by Will gives a Portion of 500/. and afterwards in his Life-time gives her 300/. for her Portion in Marriage, and four Years afterwards dies without revoking the Will ; the Husband is a Bank- rupt ; the Alfignees not en- titled to the 500/. Legacy, nor any Part thereof, 68 1 I A reverfionary Term decreed (though rehtciante Curia) to be fold for railing a Daugl?- ter's Portion. Page 707 Pofiibllitp. See alfo Limita- tions of T'erms for Tears un- der Tit. Ejiate for Tears. Whether a Poflibility be not af- fignablc by the Commjf- fioners of 13ankruptcy. 385 J. devifes a Term for Years to S. for Life, Remainder to C. who in the Life of S. devifes his Remainder to 'D. this is a good Devife, though of a PoiTibility, and amounts in Equity to a Declaration by Will, that C.'s Executors fliall ftand poflcflcd of the Term in Truft for the Do- vifee. 572 Poriljisnioasf. where there is a Power to charge Lands for Portions for younger Children living at the Father s Ijeath, a Poft- humous Child is within that Power. 245 One devifes the Surplus of his Eftate to his Children and Grandchildren living at his T>eathi a Child or Grand- child iji Veiitre fa mere at the Teftator's Death will take. 342 One devifes, in cafe he leaves no Son at the Time of his Death, to J. S. the T'eftator dies leaving his Wife prive- m€7it enfient with a Son ; this A Table of the Principal Matters. this Pofthumous Son is a Child living at the Teftator's Death, and J. S. not entitled. 'Page 486 Where Tenant in Tail has a Power to make Leafos, this not void, being intended to enable him to bind the Rc- vcriion or Remainder with- out Fine or Recovery, which Power he has not by 32 // 8. D-vife to J. (the Teftator's Wife) for I-ife, and then to be at her Difpofal, provided it be to any of his Children ; gives her an Eftate for Life, with a Power to difpofe of the Fee ; and where fuch Devifee with an after-taken Husband did by Lcafe and Kcleafe and Fine convey the PremiOes to a Truftce and his Heirs, to the Ufe of herfelf for Life without Im- peachnunt of Wafte, Re- mainder to her Daughter by her firft Husband, and the Heirs of her Body, Remain- der to the Son by her tiift Hu^blnd and his Heirs; this adjudged a good Execution of the Power. 149 Power to charge Lands for Portions for younger Chil- dren living !it the TeftiUor's Death; a Cluld i// p^entre fa mere is a Child within the Power. .145 Where Lands are fettled on A. for Life, Remainder to fuch Woman as he iTiall marry for Life, Remainder over, with Power for him to charge the Premiffes with any Sum of Money ; fuch Power, un- lefs there be a Claufe infer- ted to the contrary, will, like a Power of leafing, over- reach all the Eftates. Ta%e A Settlement is direded to be made on //. with a Power to make a Jointure of a Moie- ty, //. before the Settlement makes a Jointure of what exceeds a Moiety ; the Court will take no Notice of this during the Husband's Life, for it may never take Ef- fcd. 604 Where there is a Power to ap- point an Ufe of Land b\' Deed or Will; a Will at- tefted by two Witnc fles not a good Appointment, it being to be intended fuch a Will as is proper to difpofe of Land. 741 So though it be by any Wri- ting m Nature of a Will. ibici. Tenant for ninety-nine Years, if he fo long live, with Power of charging the Premilfes with Sums of Money, joins in fuf- fcring a Recovery, and in declaring new lifts thereof; this Extinguiilies the Power of charging. 777 Diverlity betwixt a Power an- nexed to an Eftate, and one coUatcral thereto, the firft palung with the Eftate, the ether not. 'jy'S l->fiU)CC of EclJOC.Itioil. See KcUoCiUion. 10 G P?ria' A Table oj the Principal Matters. 15?ccosati^c of tijc CtoUJiu in Profecutions of the Crown, though fince the late Statute of the 4 CJ 5 Juuce^ the Ve- nire facias which was a- wardcd de Vicineto, and not 'de Corpore Comitatus, was held good. 'Page 22 j On the Crown's bringing a Scire facias to repeal a Charter, the Defendant fliall pay Cofis on a new Triah 224 A Chofe in Adion may be af- figncd to the King, and he or his Grantee fue for it iri their own Name. 252 The King may refervd a Rent out of Things incorporeal, and may diftrain for this Rent on any other Lands of the Tenant, but not on fuch Lands of the Tenant as are let out by him or extended. 307 An Appeal lies from a Decree in the IJle of Mau to the King in Council, to prevent a Failure of Jufticej altho' in the Grant made of that Ifland by the Crown there may have been no Rcferva- tion of the King's Right to determine on fuch Appeals. 329 Whether the King has Pow- er to make a Man a Peer againft his Will. 592 Upon an Outlawry, the Crown is not aTruftee for the Plain- tiff, but it is merely ex gra- tia that a Grant is made of the Goods of the Pcrfon out- lawed to the Plaintiff in Sa- tiifadion of his Debt. 6^0 ]pltttnmm to n C&iircf) o? The Building and Endowing of a Church originally entitled one to the Patronage. Page 774 The Impropriator of a Parifla has no Right to nominate -a Preacher to every Chapel within the Parifli, much lefs is he compellable fo to do. ibid. One may build a private Chapel forhirafelf and Neighbours,or for himfelf and twenty Neigh- bours, and this will not give the Parfon a Right to nomi- nate a Preacher there, ibid. p^iuilcffc. See Parliament PlObatC. Sec under Tit. UMH. 13?ocef0. If the Party's Clerk in Court be dead, no Proccfs can be taken out againft the Party until he has appointed a new Clerk in Court, for which Purpofe a Snbpce/m ad fa- cie7id' Attorn muft be taken out, the leaving of which at the Houfe of the Party is good Service. 420 A' being beyond Sea fuos 2. at Law, who brings a Bill in Equity againft A. the Court will order that Service on the Defendant's Attorney at Law fjiall be good Service, but not that iuch Attorney fliall put in hisAnfwer with- out Oath. ^i. If the De- fendant was in an Enemy's Country ^ Ta B L E of the Principal Matters. Country where no Commif- lion could go to take the Anfvvcr. 'Pat^e 523 They only are Defendants to a Bill again ft whom Procefs is prayed. 593 Seqtiejlrntion. TVhcthcr a Grantee of a Fee- Farm Rent may diftrain for the fome upon Lands under Scqucftration. 307 Firft Procefs of Contempt a- gainft a menial Servant of a Peer of the Realm is a Sc- cjucftration iV///, as againft the Peer himfeif. 535 Procuration^. Procurations are due of com- mon Right for the Bifliop or his Vicar, the Archdeacon's inftruifting the Clergy, and properly dcmandable of the Curate, in Cafe of an Im- propriation, in the Eccle- liaftical Court. « 657 p?oI)ifaition» In Vacation-Time, on the Spi- ritual or other Court's ex- ceeding their JurifdiCtion, the -.» Court of Chancery will 'i grant a Prohibition. 43»47^ 5i>?0p0?t!0ll. Vick alfo ^^C= ' Vyhore there was Tenant fot tifc, Remainder to an In- fant in Tail, Remainder to Tenant for Life in Fee, the Court would not value the Life Eftate at more than one third. 'Page 650 \p\\U\h\^f:,as diJlif/guiJJied from T>efce7it, vide j^Clr* li)iirct)afc mm puccljnfcr* On Cafiialtics happening be- tween the Articles for a Pur- chafe and the Scaling of the Conveyance, who flaall bear the Lofs. 61 In Marriage Articles the Ifliic to be confidered as Purcha- fers. 145, 291 A Purchafer before a Mafter fiibmitting to lofe his De- pofit, is not bound to pro- ceed in the Purchafe. 745 Ciunlicr. WHERE the Suit was frivolous, a Qiiaker De- fendant allowed to put in his Anfwer without Oath or Af- firmation. 781 Ucal eutt. Where the perfofml EJiate JJjaU or JJjall not he applied to exonerate the real. P AROL Proof admitted to fli?w the Teftator's In- tention that his Executrix • fliould A Table of the Principal Matters. ihould retain the perfonal Eftate, and not apply it to- wards the Difcharge of the Mortgage. Tage9,ij6 Tvlortgagc in Fee is made re- deemable on Payment of 300/. and Intercft, upon any Michaelmas Day on fix Months Notice,- Mortgagor dies, having devifed his per- fonal Eftate to his Wife,- the perfonal Eftate is liable to pay the Mortgage. 291 One having mortgaged his Fee- fimple Eftate, dcvifcs his Leafehold to //. and his Fee- fimplc to S. and dies, lea- ving no other perfonal E- Itate J the Devife of the Fee- fimple muft take it cf/m C7iere, and ftiall not charge the Leafehold Eftate fpecifi- cally devifed with the Mort- 693 g=^g^- Perfonal Eftate not to be ap- plied in Exoneration of tlie real, in Cafes where a Spe- cific or other Legatee would be prejudiced j much lefs fliall the 'Bona'Paraphcnm- lia of the Wife be fo ap- plied. 730 ilCCOJXtU^ance* Vide alfo un- der Tit. S)ccur(tiej3i* A Recognizance not inrolled fhali be looked upon only as a Bond, and paid as a Debt by Specialty. 334 So a Recognizance not regu- larly taken may be fiied as an Obligation. 336 Where the Court permits the inrolling of a Re^ogoizance after the Time elapfed, it al- ways takes Care not to hurt an intervening Purchafer. Tage 340 Committee of an Infant Heirefs having given a Recognizance, conditioned that he fhonid not fufter the Infant to marry without the Confent of the Court; the Form of this Re- cognizance was afterwards moderated, ciz- that the In- fant fhould not mary zvith the Coiinnittee's ^rit'ity with- out the Confent of the Court. 698 EcCOlJfrt'* Sec alfo (£lUrj'. Where a Purchafe is diredcd to be made, and the Land to be fettled on A. in Tail, the Remainder over, it is moft reafonable for Equity to decree the Truft to be exe- cuted, and the Eftate fettled with Remainder over ; tiiat fo fucli Remainder- man may have the Benefit of tiie Chance of 'J'enant in Ttwl's dying before his having funeied a Recovery. 91 Nothing lefs than a common Recovery fuifered by Ceftni (pie T'rnji in Tail is fufificient to bar the Remainder-man, or even the Ilfuc. My the O- pinion of Lord Cozvper. ibid. Upon a Settlement /]. is made Tenant for Life, Remainder to the Heirs of his Body by his Wife, and in the fame Deed y^. covenants not to fuffer a Recovery, but that the Lands fhall be enjoyed according to thcfe Limita- tions j A Table of the Principal Matters. . tions; A- docs fuffer a Re- covery, nnd dcvifcs thcfe Lands ; the Recovery good to bind the AlTets ; but A. being Tenant in I'ail, and as fuch having Power to fuffer a Recovery, the Lands devifed fliall not be affected. jP^^f 104 Where Money is dircded to be laid out in a Purchafc of Land, and to be fettled on J. for Life, Remainder to B. in Tail, Remainder to C in Fee j if A. and B. bring a Bill for the Money, they iliall not have it, becaufe of the Contingency to C. which cannot be barred without a common Recovery ; [ecus where fuch Remainder can be barred by a Fine only. 470 One feifed in Fee of the Ma- nors of A. and B. devifes them to C. for Life, and if C. fliall have Iffuc Male, then to fuch IflucMale and his Heirs for ever ; but if C fliall leave no Ilfue Male, the Manor of A. to J- S- in Fee, and that of B. to J. N. in Fee ; C. fuffers a Recovery of thefe Manors, it will bar the contingent Eftates limit- ed to 7- S. and J. N. 5 cp In a Marriage Settlement the Husband was made Tenant for Ninety-nine Years, if he fo long lived, Remainder to Truftecs during the Life of the Husband, (5"^. Remainder to the firft, tj^f. Son by the Marriage in Tail Male, Re- mainder to the firft, (^c. Son by any other Wife, Remain- der over; a Son is born and of A^e, the Wife dead, and there are no other Sons by a fubfequent Marriage, the Trult for preferving contin- gent Remainders dcfcends to an Infant; if for the Benefit of the Family, Equity will decree the Infant Truftee to join in a Recovery. Tage 5 36 Eclrufc, A Will cannot operate as a Releafe. 85 No Reafon to fet afide a Re- leafe becaufe the Party re- leafing had a Right; feCNS if ignorant of his Right, or if the fame was concealed from him. 239, 728 A) to the Child of n Freema7is rdeajvig his Orphrjiage Tart^ fee under Tit. IcilOOlU Ecilt See alfo Matters con- trDverted between the Heir a?id B.xccutor, under fpcit. Lelfor dies on Mi chad was Day, and before Sun fet ; the Heir or Jointrefs, not the Execu- tor, fliall have the Rent. 177 [^//. If the Leffor had died after Sun fet, and before Midnight, ibid.'] If the Tenant had paid the Rent on the Day, the Pay- ment had been good, tho' the Lcflbr had died before Sun fet ; but the Executors to ac- count for this to the Jointrefs. ibid. Qjiare tavien. Where Leilor refer ves a Rent, and dies on the Rent- Day 10 H about A Table of the Principal Matters. about twelve at Noon, if the Leafe muft determine by his Death, the Rent, rather than be loft, fhall go to his JExe- cutors ; [ems if the Leafe is to have a Continuance. Tage 1 80 Tenant for Life leafes for Years, rendiing Rent half- yearly, and dies in the mid- dle of the Half- Year; Equity will not apportion the Rent as to Time. 39- Vide mitem 1 1 Qeo. 2. by which Rent is apportioned in Point of Time. J. S. Lcffee of Land to him and his Hciis for three Lives, afiigns the Whole Eftatc, re- ferving a Rent to him and his Executors, and dies,- his Executors, and not his Heirs, are entitled to the Rent. 555 Fee-Farm Rent. Patentees of Fee-Farm Rents have the fame Power of Di- ftrefs as the King had, and fo may diftrain on other Lands of the Tenant, though not fubjed to the Rent, but not on fuch other Lands as are let out by the Tenant, or extended, ^i. If they may diftrain on other Lands of the Tenant under Seque- ftration. 306, 307 ^ult-Rent. An Owner of a Quit-Rent ought to pay Taxes in Pro- portion only to what the 4 Land pays ; but if the Mat- ter has been examined by the Commiflioners of the Land-Tax, this Court will not re-examine it, Tage 328 Efljenn'itD;* On the Plaintiff's Petition to rehear, the Caufe is open with refped to him as to thofe Parts only complained of in the Petition j whereas the Defendant is at Liberty to objed again ft every Part of it. 300 Revocation of a WUh ^^e under Tit. mnu An Appointment by Deed of particular Annuities to be paid out of an Office, is in its Nature revocable. loi Of two voluntary Settlements, if the firft is made without a Power of Revocation againft the Intent of the Party, the fccond fhall prevail. 581 In zvhat Cafes a Legacy Jhall he a SatisfaUion^ fee under Tit. ICffacp, and PoitlOH^* One covenants to leave bis Wife 620/. and dying inteftate, her Share comes to more-,- this held a Satisfadion. 324 A Ta b l e ^f the Principal Matters. The Spiritual Court hi^S Juril- didion of Grammar Scliools; but in Cafe of a I,ibel for teaching School generally, without Licence, if it does not appear what School, the Temporal Courts will grant a Prohibition. ^Page 29 Two Schools in the fame Town, one a Free School and the other a Charity School for Boys and Girls j J. devifes 500/. to the Cha- rity School, though both be Charity Schools, yet only that for Boys and Girls fhall take. 674 A Ne exeat Regjnm lies to prevent one's going to Scot- land i but in fuch Cafe the Condition of the Recogni- zance muft be particularly worded. 263 Since the hcX of Union, a Scotch Peer made nn Ej2gliJJ.-i Peer cannot by Virtue thereof fit an I. vote in Parliament. 582 In Scotland the Trials and Pro- fecutions for Treafons are by the- iate Statute of Un^on the fame as in England. 61 j aecuritfcs ann Jncumb?ancc0, 3ulirjment, €)tntutc ano Eccciffnifnncc* A Statute Creditor of J. S. if J. S. becomes Bankrupt, and the Statute not fucd and exe- cuted before the Bankruptcy, fliall come in only pro ratdt though there were Lands in Fee bound by the Statute. 'Page 92 A Truftce confeffcs a Judg- ment; this will not in Equity bind the Eftate. 278 //. conveys an Eftate by a Conveyance that is defedive, (as for want of l.ivery) arid afterwards confcfles a Judg- ment j this fliall not in E- quity affeft the Eftate. 279 Mortgagee of a Ship is Wit- nefs to a fccond Mortgage thereof; though no aftual Proof of his knowing the Contents, yet (ince the Pre- fumption is, that he might have known them, this fliall poftpone him. 394 Mortgagee of a Ship by Deed intrufts the Mortgagor with the original Bill of Sale, who indorfes thereon fubfequent Mortgages or Bills of Sale of fcvcral Parts of the Ship, and the Mortgagee acquiefces; this is Evidence of an Aifent in fuch Mortgagee, and lliall poftpone him. ibid. One agreeing to leave his Wife 1000/. within three Months after his Death, cannot be inforced in Equity to amend the Security. 460 J. a Trader, feifed in Fee of Lands, gives Judgment to j&. and having fold the Land to C becomes a Bankrupt; though the Judgment Cre- ditor cannot come in for more than his Proportion with the other Creditors of the A Table of the Principal Matters, the Bankrupt, whether he may not extend the Land in C the Purchafer's Hands. Tage 737 So if A. the Trader had given Judgment to 2. and having articled for a valuable Con- fideration to fell to C had become a Bankrupt, the Judgment fliould have bound the Land in the Hands of C but whatever Money the Purchafer had been to pay to the Bankrupt fliould have been liable to the Bankrupt- cy, ihid. ScquCfil'ntlOn* See under Tit. P|CCCf0, Debt againft the Sheriff for an Efcape of one in Execu- tion on an Outlawry after Judgment, may be brought cither in the taju qnavi^ or at the Suit of the Party only. 687 ©clicito?* See atto?ncp. A Bill in Equity will not lie for a Specitic Performance of an Agreement to transfer SQiiXh-Sea^\o(^. 570 Specific performance, i^hen to he decreed a?id ivheu not, fee under Tit. agceement, Specific T>t^ik 01 leiyac". See lejyacicc, 4 Specific lieitj 0| not Upon a Settlement J. is made Tenant for Life, Remainder to the Heirs of his Body by his Wife, ond in the fame Deed /}. covenanrs not to fufifer a Recovery, but that the Lands lliall be enjoyed according to thefe Lmiita- tions J J. does fuffer a Rtco- very, and devifes the Lands; the Covenant good to bmd the Aflets, but J. being Te- nant in Tail, and as fuch having Power to fuffer a Recovery, the Lands dcvifed fliall not be atfetted. Pa§e 104 One agrees for a valuable Con- fidcration to convey Lands to J. S. and afterwards con- feifes a Judgment to J. N. if the Confideration Money paid by J. S. be any ways adequate to the Value of the Lands, it binds the Lands in Equity, and fliall defeat the Judgment i fec»s of a Mortgage, or if the Confi- deration were inadequate. 277 J. furrenders a Copyhold by way of Sale or Mortgage, but the Surrender is not prc- fented, and J. becomes a Bankrupt i this will bind the Eftate in Equity. 280 One Covenants before Marriage to fettle certain Lands on his Wife for Life, and afterwards devifes thefe Lands for Pay- ment of Debts, the Cove- nant is a fpecifac Lien on the Landij A Table of the Prijicipal Matters. Lands; fecus of a Covenant j to fettle Lands of the Value of 60/. per Afuium^ without mentioning any Lands in certain. Tage 0(19 g'pintunl Court The Spiritual Court has Jurif- didion of Grammar Schools i but in Cafe of a Libel for teacliing School generally, \vithout Licence, if it does not appear what School, the Temporal Courts will grant a Prohibition. 29 A M^^n damns lies to the Spi- ritual Court to dire(51: them to do Riglit, as a Prohibi- tion does to flop them from doing Wrong. 47 An Injunction upon an Attach- ment or 1)edi7nu5i (jc. does not extend to ftay Proceed- ings in the Spiritual Court Where a Thing is claimed by Cuftom in the Spiritual Court, it muft be intended according to their Law, by wliich forty Years make a Cuflom or Prefcription. 'Page 661 statutes!* Whether a Preamble of an AO. of Parliament be proper to explain the general Words in the Body. 51 7 U'ithout fpccial Order. 301 An Executor proves a Will of a pcrfonal Eftate, wherein one of the Legacies is forged ; the Spiritual Court having a proper Jurifdiction of this Matter, the Executor is without Remedy in Equity. 388 The Spiritual Court has no Power to make a Tranfla- tion of a Will. 5 27 The Spiritual Court cannot compel a Diftribution of the xindiipofcd Surplus of a pcr- fonal Eftate, and why. 549 The Spiritual Court has Power to determine concerning the Right of Proxies or Procu- rations. 657 Statute of Limit at ioji. Sec Xv niitntion. Statute of Bands and 'Per- juries. Vide under ^tttZZ^ mcnt, €)Ubpoenn» Sec Tit. p^occfjjv ^urctp* Sec XaiL 0uftjitjo?* Sec 3:ointcnant.{j. A N Owner of a Quit-Rent ought to pay 'i^axes in Proportion to what the Land pays; but if the Matter has been examined by the Com- mififioners of the Land-Tax, this Court will not re-ex- amine it. 3 28 Ccnnntfi in Common* Sec 3ointcnnnt<3* 10 I ^ffm A Table of the Principal Matters, Ccrm fo? f Ear0 aitH attennant on tie Slnljcritance* See hi- mitation of Term for Tears under Eflate for Tears. Cctm ann Clacation* In Vacation-time one may re- fort to the Chancery for a Prohibition returnable into 5. JR. or CB. Tager,,^ie Though the next Day after the laft Day of the Term be not in Stridnefs Part of the Term, and therefore no Mo- tion can then be made on the Petty-Bag's Side in Chan- cery, yet as to other Pur- pofes it is Part of the Term ; for which Reafon a Motion made at that Time to dif- mifs a Bill for want of Pro- fecution, on a Certificate that there had been no Pro- fecution within three Terms, of which the laft Term was one, was denied. 522 So where the laft Seal con- tinued three Days, and com- puting the third Day accord- ing to the Day of the Month, the Time would be expired for making a Report abfo- lute J yet this not fo, it being only a Continuance of the firft Day. ibid. €i*atie. Captain of a Ship dies leaving Money on Board, the Mate becomes Captain and im- proves the Money in Trade j he fliall, on Allowance made him for his Care in the Ma- nagement of fuch Money, account for the Profits, and not for the Intereft only. 'Page 140 A Bond or Promife to reftrain one's felf from trading in a particular Plac?, if upon a reafonable Confideration, is good i fecvs if it be not given on a reafonable Confidera- tion, or to reftrain a Man from trading at all. 181 %Xti^, See mmt. Cn'ul ant nciu ttn'nL Bill lies to perpetu^ite Tcfti- mony before Trial, on Affi- davit annexed that the Plain- tiff's Witnelfcs are infirm and unable to travel. 117 Where the Jury bring in their Verdidt contrary to the Di- rcdion of the Court, a new Trial may be granted even after a Trial at Bar. 212 In Profecutions of the Crown, though fince the late Statute of 4_6' 5 ^fi7!ce^ cap. \6. the Ve7iir£ facias which was a- warded de Vic'meto^ and not do Corpore Comitatus^ held good. 223 On a Scire facias to repeal a Charter, the Defendant fhall not have a new Trial with- out paying Cofts, 224 In cafe of a Truft-Eftate devifed to be fold, or devifed to J. S. if the Will be difputed. Equi- ty, after two Trials in its Fa- vour A Table of the Principal Matters. vour, will grant a perpetual Injunftion. Page 671 So attcr fcvcral Trials in Ejcdl- mcnt, and Verdids in all in Favour of the Will, Equity, on a Bill of Peace, will grant a perpetual Injundion. 672 Ctufl anti tLiuneejj. where aPurchafe is dircded to be made, and the Land fet- tled on A. in Tail, witli Re- mainder over; the Court ought not to decree the Mo- ney to be paid to J. but a Settlement to be made and the Truft executed, that fo the Remainder-man may have the Benefit of the Chance of Tenant in Tail's dying before his having fuf- fcred a Common Recovery. Bare Articles, or only a Deed executed by Cefiui que 'Truft in Tail, feems hardly fuffi- cicnt to bar the Intail. ibid. Truft-Eftatcs are to be go- verned by the fame Rules as legal Eftates. 109 One devifes Lands for Pay- ment of DebtSj and then to J. for Life, with Power to make Leafes, (^c. Remain- der to the Heirs Male of the Body of A. though this be but the Devife of a Trufl and executory, and cxpr^fTed to be to A. for Life, yet it is an Eftate-tail in /]. bana- ble by a Fine ; [ecus in cafe of Marriage Articles to fet- tle Lands in that Manner. 142, 290 One who is a bare Truftee, is a good Witnefs to prove the Execution of a Deed to him- felf. Tage 290 J. a Freeman of Lo7idyn pur- chafes Lands in the Name of li. but no Truft declared, .-/. dies, and B. gives a Decla- ration of Truft ; tiiis good againft the Cuftom. 521 Evidence of a Truft, where an Eftatc is purchafed in an- other's Name. ibid. yl, is a Truftee for B. as to an Eftatc, and lays out Money in Relation thereto, after which B. alligns the Truft to C. who brings a Bill for a Conveyance of the Eftate ; C. fliall have no Conveyance until J. is paid all the Mo- ney by him expended or due in relation to the Premiftes. 780 /;/ what Cafes an Executor flmll be only a Truftee. See Tit. Cl'CCUtOI* Reff/Itwg Truft, a?id Truft by Implication and ConJIru^ion. Father buys an Eftatc in the Name of a younger Son and of a Truftee, it' fiiall be taken as an Advancement,- fo though a Revcilion be iettled on the younger Son expcaant on the Mother's Death, or though the Fa- ther received the Piofirsi pro- vided, it was done only as Guardian, and during the Son's Minority. 1 1 r Sccus if the Father received the Profits after tlie Child's coming A Table of the Principal Matters. coming of Age, and when of Difcrction to claim his Right. Ta^e 608 The "statute of Frauds and Perjuries, which fays that all Conveyances, where Trufts or Confidences fliall arife or refult by Implication of Law, fiiall be as if that Ad: had never been, mud relate to equitable Interefts, and not to an Ufe, which is a legal Eftate. 112, 113 A Truft refulting by Impli- cation or Conftrudion may be rebutted by parol Evi- dence. 113,115 One devifes Lands to his Exe- cutors (who are no Rela- tions) to fell for the boft Price, and to pay his Debts, Legacies and Funerals, fo far as the fame will extend, giving Legacies to his Heir at Law, and 100/. to the Children of one of his Exe- cutors, but nothing to the Executors themfelvcs ; de- creed that the Executors were but Truftces for the Heir at Law after Debts and Ix'gacies paid. 390 A Grandmother buys an An- nuity in the 14/. ^er Cent. Lottery for 1 00 /. in the Grandchild's Name ; the Child's Father gives the Grandmother a Bond to re- pay the 100/. if the Child dies before the Grandmo- ther, who receives the In- come and keeps the Tally, the Grandchild making no Claim ; this no Truft for the Grandchild. 607 2 "trufi for raifmg Portions and "Payment of Tiehts. See al- fo under Tit. MX\\\. A Truft-Term is raifed to pay all Debts equally, and the Party dies indebted by Bond and Simple Contrad,- the Bond-Creditors may be paid Part of their Debts out of the perfonal Eftate, and fhalt neverthelefs come in upon the Truft-Term for the Re- mainder equally with the Simple Contraft Creditors. 'Page 228 Where a Truft is raifed to pay Debts, this is like a Mort- gage, and the Simple Con- tra(5t Debts fliall carry In- tereft. 229 Where there is a Power to charge Lands for Portions for younger Children living at their Father's Death, a Poft- humous Child is within the Power. 24J Where the Truft of a Term was to raife Portions out of Rents and Profits, to be paid as foon as conveniently might bej by Virtue of the Word Profits the Truftees were held to be impowered to fell or mort- gage ; [ecus if fa id anmial Profits. 415 One devifes Lands to his Wife for Life, and after her Death to his Son in Fee, upon Con- dition to pay his Daughter 1000/. within a Year after the Death of J. S. provided, if the Money be not paid, the Daughter may enter and receive the Profits till Pay- ment A Table of the Principal Matters. mcntj J. S. dies living the Wife ; the Daughter fliall have the looo/. during the Life of the ^Mother, and in Default of Payment, Equity will decree a Sale of the Rc- vcrlion. Ta^e 478 Where a Truft was created for a Provifion for Daughters to he born, this was held to extend to Daughters theji born. 426 One devifes his Lands for Pay- ment of his Debts; Bond and Simple Contract Debts fliall be paid equally; but if he only charges his Lands with the Payment of his Dcbrs, fo that the Lands defccnd fubjoft to the Debts, the Bonds fliall be preferred to the Simple Contract Debts. 430 But if the Heir fells the Land before any Action brought, then both to be paid equal- ly. 431 One devifes all his real Eflnte to pay Debts, having Part Freehold and Part Copyhold, and dies without having fur- renderc-d the Copyhold to the Ufc of his Will; regu- larly the Copyhold fliall not pifs without being men- tioned, and if mentioned. Equity will on Behalf of Creditors fupply the Want of a Surrender ; but if the Freehold Eltate be not fuffi- cient to pay the Debts, the Copyhold, being real Eftate, fliall be liable. 443 A Term was created for railing Daughters Portions com- mencing after the Death of the Father and Mother, up- on Truft to raife the Portions from and after the Com- mencement of the Term ; Father dies leaving a Daugh- ter ; decreed the Portion was veftcd, but not railiiblc du- ring the Life of the Mother. Tage 448 Biiron gives Feme the Foul Diftempcr, /I. lends the Wife 30/. to pay the Doiftor for her Cure ; Baron devifes Lands for the Payment of his Debts ; this 50 /. is a Debt of the Husband's, and J. a Creditor in the Doc- tor's Place. 482 One devifes I^ands to his Executors until his Debts paid, the Remainder oVer, the Executors mifapply tho Profits; they fliall hold only until they might have paid tiic Debts bv the Produce, after which the Lands are to be difcharged, and the Ex- ecutors only to be liable. 518 One borrows Money during his Infancy, and applies it to the buying of NecefTarics ; after- wards coming of Age, he devifes his Lands for the Payment of his Debts ; this Debt contracted during In- fancy is within thcTruft. 558 The Truft of a Term was to raife Portions for Daughters by Sale or Mortgage, Rents, Ilfues or Profits, and to be paid at the Daughters Ages of twenty-one, or Marriage, if after fourteen, or under, if with Confent of the Mo- ther; the Mother dies Ica- ic K VUlg A Table o-\ the Principal Matters, ving four Daughters ■■, the cldeft after the Age of four- teen married, and with her Huiband brought a Bill for the raifing of her Portion in the Life-time of the Father; Court decreed a Sale of the Kevcrfionary Term for the Tcige 707 raiiuig thereof. Triificcs for prefervifig co72ti?i- gent Remainders. Trufcecs for prcfcrving contin- gent Remainders join in a Conveyance before the Birth of a Son 5 this is a Breach of Truft againft which Equity will relieve. 128 Truftees for prcferving contin- gent Remainders in a volun- tary Settlement, decreed to join in a Sale for Payment of Debts. 358 A Settlement was made by a third Perfon to the Ufe of the Husband for Ninety-nine Years, Remainder to Tru- ftces during his IJfe, (jc. Remainder to the Wife for Life, Remainder to the firft, ^c. Son of the Marriage, Remainder to the Heirs of the Body of the Husband, Remainder to the right Heirs of the Husband; there was no liTuc of the Marriage, and the Truftees joined in cutting off the Remainders ; yet the Court rcfufed to punifli them at tlie Suit of a remote Re- mainder-man. 359 //, fettles Lands to the Ufe of liimfelf for 99 Years, if he fliould fo long live, Re- I mainder to Truftees during his Life, (jc. Remainder to the Heirs of his Body, Re- mainder to J. in Fee ; y/. has two Sons, and he, the Truftees and the cldeft Son, join in a Mortgage by Feoft- mcnt ,• the cldeft Son dies without llluc; the fccond Son, during the Life of the Fa- ther, has no Pretence to let aiidc the Mortgage, though this leems a Breach of Truft in the Truftees. Tcige 387 In a Marriage Settlement the Husband is made Tenant for Ninety-nine Years, if he fo long live. Remainder to Truftees during the Life of the Husband, Remainder to the firft, cjf. Son of the Mar- riage in Tail Male, Re- mainder to the firft, (jc. Son by any other Wife, Re- mainder over; a Son is born and of Age, the Wife dead, and there arc no other Sons by a fccond Marriage, the Truft for prefervi ng contin- gent Remainders delccnds to an Infitnt ; if for the Benefit of the Family, Equity will decree the Infant Truftee to join in a Recovery. 536 T'ntftee^ zvhen ajid hozp to he charged and dijcharged, and what jUowance to have. Two Truftees in a Mortgage join in an Affignment of the Term, and in a Receipt for the ^Vholc, each receiving a Moiety only of the Mort- gage Money; to be anfvver- able A Table of the Principal Matters. able only for what they rc- fpc(ftivcly receive. ^Page 8i, 241 Othcrwifc where Executors join in Sales, there being no Ne- ccflity for their fo doing. 83 Captain of a Ship dies leaving Money on Board, the Mate becomes Csptain and im- proves the Money; he fliall, on Allowance made to him for his Care of the Manage- ment of fuch Money, ac- count for the Profits, and not for the Intereft only. 140 Where an Executor puts out Money, though without the Indemnity of a Decree, upon a real Security, which there was no Reafon then to fu- fpcd; but afterwards fuch Security proves bad, he is not accountable for the Lofs, any more than he would have been entitled to the Profit, had it contin^pd good. ic,ccc /. Truft Money being a- grecd to be laid out in Land «nd fettled in the common Form of Marriage Settle- ments, is employed in buy- ing South-Sea Stock, and im- proved to 30,000/; as the Truft would have fuffered by the Fall, fo fhall it have the Benefit of the Rife of the Stock. ' 648 CtnluatloiT* WHERE a Covenant was to fettle Lands, (without mentioning any Lands in certain) this no fpecific Lien, but the Wife decreed to come in as a Creditor in general, and to be entitled to what the Mafter fliould value her Eftatc for Life at, but flic to have the' Arrears before incurred, as well as the Valuation of her Eft.ue for Life. 'Pa^e 4:9 Tenant for Life, Remainder to the fira Son in Tail, Re- mainder to the Father in Fee; Father's Intereft valued but at one Third, and the Eftate-tail of the Son (the' an Infant) at two Thirds. CTcm'CC JTnCiajS. Sec under Tit. OccUia. See CrtaL (Holuntnrp, Sec alfo f rnut!. A voluntary Conveyance to the Brother of the Half Blood, but which was void and de- fcdive at Law, made good by a Court of Equity againft the Heir. 6c Vide aute?/i^ Where it is fud a voluntary Conveyance of a Copyhold, or other Eftatc, is not to be helped in Equity againft the Heir. 354 A A Table of the Principal Matters. A Freeman of JLo77do7i figns a Note, by which he owns himfelf indebted in 5000/. to his Brother and Heir, but the Brother knows nothing of it; the Freeman keeps this Note always in his own Cu- ftody, and on his Death it is found among his Papers; ad- judged a void Note, and as a Matter intended and not perfcded. Tage 204 Traflecs to preferve contingent • Remainders in a voluntary Settlement decreed to join in a Sale for Payment of Debts. 358 A, makes a voluntary Settle- ment on her Nephew, keep- ing the Deed in her Power, in which Settlement there is no Power of Revocation ; afterwards one fecretly and by Fraud, on Behalf of the Nephew, gets an attefted Copy of this Settlement, and then the Party who made the Settlement burns it, and fettles the Premilfcs on an- other Nephew, delivering to him the fecond Settlement; the firft Nephew's Bill to eftablifh the Copy of the firft Settlement difmifTcd with Cofts, and the attefted Copy ordered to be delivered up to the fecond Nephew ; for tho' of two voluntary Settlements the firft fliall take Place, yet this is not fo where any Fraud has been ufed in gain- ing the firft Settlement, or a Copy of it. 577 Or if the firft was made abfolute againft the Intention of the Party. 581 1 LORD of a Manor may bring a Bill for an Ac- count of Oar dug, or Tim- ber cut, by the Defendant's Teftator ; otherwife of plow- ing up Meadow or antient Pafture, or fuch Torts which die with the Perfon. f age ^06 I.eflee for Years, jatis Wafte, Remainder in Fee to a Bi- flhop; I>eftce enjoined from digging the Ground for Brick. 527 One in Confideration of Mar- riage fettles an Houfe ro the Ufe of himfelf, fans Wafte, Remainder to his firft, (jc. Son ; the Tenant for Life fhall not pull down the Houfe. 528 Hard that Leflee for Years, fa7is Wafte, fliould enjoy the Trees ,or Materials of the Houfe when he pulls it down, the Intention of that Claufe only being that the Leftce for Years fliould be as free from Wafte as he was be- fore the Statute oiGlouceffer. ibid. miW nn5 Ccffamcnt. Sec alfo €;;pofition of 2IIo?Hs, HoTv far parol Troof may he adf/iitted to explain a Will of perfo7/al Efate. See Tit. There is a Difference between Wills and Conveyances at Law A Table of the Principal Matters. I.avv as to their Conftru(ftion, and why. Tage 20 A Will cannot operate as a Rc- Icafc. 85 Though a Will cannot fpeak or take any Effect until the Teftator's Death, yet it is inchoate, though not con- funimate, from the Execu- tion of it, and to many Pur- pofes in Law relates to the Time of the making. 97 Dcvife of a perfonal Eftatc to a Feme Covert for her fe- paratc Ufe, without naming Truftccs ; (lij£re^ whether good to bar the Huiband. 125 A Will of Land n>ay be good at Law, as being well exe- cuted, and yet ill in Equity, as if obtained by Fraud. 2b 8 One being on Shipboard, and entitled to Part of a con- fidcrable Leafchold Eftatc by the Death of his Father, which he did not know he had a Right to, made his Will at Sea, and deviHd to his Mother, if living, his Rings, making J. his Exe- cutor, to whom he bequeath- ed his red Box, and allT^hings not before bequeathed; this held not to pafs the Lcafe- hold Intcreft, or what the Tcftator did not know he was entitled to, but to be rcftraincd to Things 'ejtifdem generis. !02 One dcvifes the Surplus of his perfonal Eftate to his Rela- tions j only fuch fl-iall take who arc capable of taking within the Statute of Diftii- bution. 327 J One dcvifes the Surplus of his Eftatc to his poor Relations, how conftrucd, (j j^utere* 'Page 327 One devifed the Surplus of his perfonal Eftate to his Chil- dren and Grandchildren ,• a Grandchild tji Vejitre fa mere at the Teftator's Death fliall not take J feats had it been to the Children and Grandchildren living at his Death. 34.2 And fuch Children and Grand- children fliall take per capi- ta^ not by way of Reprefen- tation. 343 Dcvife to J. and his Heirs, Remainder to 2. and his Iflue, Remainder to the Heirs of j4. /U dies without Ifl'ue in the Life of the Tcftator, B. dies in the Life of the Tcftator, leaving IfTue, who is alfo the Heir of J. the Iffue fliall not tifkc an Eftate- tail as Ifl'ue of B. nor the Remainder in Fee as Heir of A. 191 Devife to J. for Life, Re- mainder to S. for Life, Re- mainder to the right Heirs of A. A. dies in the Teftator's Life-time i his right Heirs fliall never take. 599 Where a real Eftatc is by a Will charged with the Legacies abot'e mentioned^ this will not extend to the Legacies in the Codicil ; feciis if the I,ands were charged with the Payment of the Lega- cies generally. 473 Where a Will was wrote blind- ly and hardly legible, ar.d the Legacies in Figures, the 10 L Court A Tab LE (?/ the Principal Matters. Court referred it to a Mafter to examine what thofe Le- gacies were, with Diredions that he fliould be aflifted by fuch as underftood the Art of Writing. P^^e 425 In Cafe of a Will where the Remainder is devifed in Con- tingency, the Reverfion in Fee is not in Abeyance in the mean while, but defcends to the Heir. 516 Where by a Will Money is to be paid by Executors as the Teftator by Deed fhall ap- point, and the Teftator after- wards makes a Deed of Ap- pointment j this Deed re- ferring to the Will fliall be held as Part thereof. 530 Diverfity betwixt a Devife of a real Eftate and the Devife of a perfonal Eftate ; as if I devife all my real and per- fonal Eftate, and afterwards purchafe more of each Kind; only the perfonal Eftate that is purchafcd afterwards fhall pals, and why. 575 ferent Language, is not con- clufivc. Tage '^16 An Executor cannot bring a Bill without fhevving thereby that he has proved the Will in the Spiritual Court j if he does, this is good Caufe of Demurrer ; but it is enough to alledge that he has duly proved the Will, without faying in what Court. 752 If an Executor brings a Scire facias to revive a Decree, he muft ftiew he has proved the Will; and where there are 'Boiia Notahilia in divers Diocefes, if he fliew Proof of the Will in the Spiritual Court of one of the Ordi- naries, this is not good ; but in fuch Cafe the Proof muft be in the Archbifiiop's Court. 766 Probate. An Executor proves a Will of a perfonal Eftate wherein one of the Legacies is forged ; the Executor has no Remedy in Equity, but ought to have proved the Will, with a fpecial Refervation to that Legacy. 388 A Will is made in Frejich and the Probate in EngliJJj, and varies from the Original,- the Probate being in a dif- Nimaipathe WiU. Devife by a Nuncupative Will by Tenant in Tail of Rent out of Land to a Charity void, though the Will was made before the Statute of Frauds. 247 Will fupprejfed by the Heir. Sec 2DceD» T^evife to a Ckaritj. See . under Tit. Cljatitp* Devife A Table of the Principal Matters. Devifc and Dcvifce. 'Devifes of Remaijiders over of Leafes^ Money ^ &c. See Li- 7Jiitatiofis of 'Tervii for Ttnrj, Money^ &c. under Tit. £- flate for Tears. J. devifcd Lands to Truftccs and their Heirs, in Tiuft that the Profits fhould be equally divided between his Wife and Daughter (the Heir of the Teftator) during the Wife's Life, and after her Death he devifed the fame to the Ufe of the Daughter in Tail, Remainder over; the Daugh- ter died before the Mother without Iflue and intcflatcj this held to be a Tenancy in Common between the Mo- ther and Daughter, and that on the Daughter's Death her Moiety did not rcfult to the Heir, but was an Intereft in Nature of a Tenancy pur autre vie, which by the Sta- tute of Frauds and Perjuries belonged to the Daughter's Adminiftratrix. Page 34 No Eftatc raifed by Implica- tion in a Will can deftroy an cxprefs Eftate ; as where a Devife was to J. for Life, Remainder to his firft Son, and fo to every other Son in Tail Male, and for-tvam of IJfiw Male of A. Re- mainder over J this gave no Eftatc-tail in A» by Implica- tion. 54 One devifes Lands for the Pay- ment of his Debts, and then to A. for Life, with Power to make Lcafes, (^c. Re- mainder to the Heirs Male of the Body of A. though this be but the Devife of a Truft and Executory, and cxprcffed to be to J. for Life, yet it is an Eftate-tail in J. barrable by a Fine and Recovery -, fecus had it been the Cafe of Marriage Ar- ticles. 'Page 142 See alfo 290 Devife to the Teftator's Wife for Life, and then to be at her Difpofol, provided it be to any of his Children ; this gives the Wife an Eftate for Life. 149 One devifes all his Freehold Houfcs in J. and has none but Leafehold Houfes there, the Leafehold fliall pafs; feats in a Grant. 285 Devife of Lands to a Corpora- tion in Truft to convey the PrcmilTes to the Teftator's Godlcin J. for Life, and fo to his firft Son for Life, and afterwards to the firft Son of that firft Son for Life, then to S. for Life, with the like Limitations,- this tend- ing to a Perpetuity will not be allowed, but the Con- veyance fhall be made as near the Intent of the Party as the Rules of Law will admit, viz. by making all the Perfons in Being only Tenants for Life, but the Limitation to the Sons un- born muft be in Tail. 332 Where one devifes his Lands for the Payment of his Debts, Bond and Simple Contract Debts fhall be paid equally ; but A Tab LE of the Principal Matters. but if he only charges his Lands with the Payment of his Debts, fo that they de- fcend fubjed to the Debts, the Bonds fhall be preferred to the Simple Contra(5t Debts. "Page 430 But if the Heir fells the Land before Adion brought, then both to be paid equally. 43 1 One devifes Lands to his Wife for Life, and after her Death to his Son in Fee, upon Con- dition to pay his Daughter 1 000 /. within a Year after the Death of J. S. with a Provifo that, if the Money be not paid, the Daughter may enter and receive the Profits till Payment j jf- ^' dies living the Wife i the Daughter fliall Have the 1000/. during the Life of the Mother, and in Default of Payment, Equity will de- cree a Sale of the Reverfion. 478 One devifes his Eftate, in cafe he leaves no Son at the Time of his Death, to J. S. the Teftator dies leaving his Wife prh'ement e?ifie7it with a Son J this pofthumous Son is a Son living at the Tefta- tor's Death, and J. S. not entitled. 486 One devifes Lands to his youn- ger Sons at twenty-four, and in the mean Time the Rents and Profits of the Premifl'cs to his eldeft Son, and dies ; the eldeft Son devifes all thofe Rents and Profits of the PremilTes to his younger Brothers, but not to be paid to them untJJ twenty-four i only the Rents and Profits accruing from the Death of the elder Brother fliall pafs. '^Page 500 So if one poffeffed of a Term for Years devifes all the Profits thereof to y. S. only the Profits accruing from the Death of the Teftator lliall pafs. 503 Devife to J. for Life, Remain- der to the right Heirs of J. S. who is then living ; the Fee- fimple defcends to the Heir at Law of the Teftator, till the Contingency happens. 511 By a Devife of an Houfe r//;// perti/iemiis, only the Gar- den and Orchard will pafs with it; but by a Devife of an Houfe ojith the Lund ap- p€rtai7ii72g thereto^ the Land ufually occupied therewith will pafs. 603 One devifed that his Coufin y/. fhould continue to live at his Houfe, and be at the Charge of keeping it, and the Servants and Coach- Horfes ■ which the Teftator employed in plowing the Ground, and fpend the Corn ariling thereon in the Houfe ; here the Land enjoyed with the Houfe fliall pafs to the Coufin. ibid. One devifes an Houfe, and di- refts by Will, that an An- nuity of 1 200 /. per Ai7tinm be paid to his Coufin, and that fhe fliall maintain her Son there ; the Son chufes to go from her,- ftill the Coufin fhall have the 1200/. per J7771U7/1 in the fame Manner as if the Son had died. 604 In A Table of the Principal Matters. In a Dcvifc of Land to A- for Lifcj and if J. die without Iffuc, then to S. tho' here is an cxprefs Eftate for Life to J. yet the fubfequent Words will turn it into an Eftate- tail ; but where Lands are devifcd to J. for Life, Re- mainder to Truftees, (ijc. Re- mainder to his firft, (jc. Son in Tail Male, (jc. and if A. dies without Iflue, then, ^c. this will not give an EQate- tail to A. but the Words [without Iflue] muft be in- tended to be without fnch IfTue. 'Page 605 One devifes his Eftate to Trii- ftces and their Heirs, in Truft to convey the Pre- milfes to his Son for Life, Remainder to his fiift, ^c Son in Tail Male fucceifive- ly, Remainder to his four Daughters, to each one Fourth in Fee, and in cafe any of the four Daughters die without IlVue, the Tru- ftees to convey fuch fourth Part in Fee to the refpcdive Heirs of tlie Pcrfon fo dying; one of the Daughters dies without Ufue, her Fourth in Equity belongs to her Bro- ther !is her Heir. 6c6 T\vo Schools in the fame Town, one a Free School, and the other a Charity School for Boys and Girls ; A. de- vifes 500/. to the Charity School ; tho' both be Cha- rity Schools, yet only that for Boys and Girls Ilia!! take. 674 Ret'ocation. Subfcqucnt Marriage and ha- ving Children conftrucd a Revocation of a Will. Toge 304 A Will, or Writing revoking a former Will, muft be fub- fcribed by three Witncfles, but this need not be in the Prefence of the Teftator. 34? A void Will or Codicil, tho' there be a Claufe of revo- king all former Wills, will not however operate as a Revocation. 344 Cancelling a former Will by Miftake, or on a Prefumption that a latter Will is good, which proves void, will not let in the Heir. 345 One makes Duplicates of his Will, and cancels one of the Duplicates; this is a Revo- cation of the whole Will; 346 Tt'itjiefs to a. JVill. A Child of a rcfiduary Legatee no Witnefs to prove a Wilt relating to a perfonal Eftate, by the Civil Law, by which Law only fuch Will is de- terminable. I o One of the Witncffes to a Will is Devifee of Part of the Land, ^//^/-f if not agooct Witnefs if he aliens the Land without Covenant or Warranty. 557 A Witnefs proving a Will of Land, fvvcars that he fub- 10 M fcrihci A Tabled?/ the Principal Matters. fcribcd it in the fame Room, and at the Teftator's Re- queft ; this held good, tho' not faid in the Teftator's Prefencc. Ta^e 740 A Witncfs to prove a Will of Lands ought properly to prove that the Will was exe- cuted in his Prefence, and alfo in the Prefence of the two other Witneffes, and that they fubfcribed in the Pre- fence of the Teftator. 741 Where there is a Power to ap- point an Ufe of Land by Deed or Will, a Will at- tefted by two VVitneflcs not a good Appointment; be- caufe in fuch Cafe by a Will muft be intended fuch a Will as is proper to difpofe of Land ; fo though the Words are, or other Writing in na- ture of a Will, l^^^l^"^ Witnefs. See alfo CtJlUCnce, Crnminatiou nnn Dcpofi= In a Suit to eftablifh a former Will, j4. is examined by the Plaintiff as a Witnefs to prove the ill Pradices made ufe of in obtaining a latter Will ; after which, and be- fore the Hearing of the Caufe, J. has a Rent-Charge dcvifed to him by the Per- fon claiming und"er the for- mer Will ; the Depofition of J. who was difintercfted at the Time of the Examina- tion, but afterwards became intcreftcd and Plaintiff in the Caufe, allowed to be read. Tage 288 The furviving Witnefs to a Bond is made Executor of the Obligee ,• in an Adtion brought by him on the Bond, Evidence Ihall be admitted to prove the Plaintiff's Hand. 289 A Grantee, where he appears to be a bare Truftee, good Evidence to prove the Exe- cution of a Deed to himrclf. 290 If a Corporation would make Ufe of one of their owrj Members as a Witnefs, they muft disfranchife him. 59^ A Parifhioncr is no good Wit- nefs to prove a Charity given to the Parifli ; [ecus if only a Lodger, and one who does not pay to the Poor j but to be intended a Houfe-keeper, and to pay, unlefs the con- trary be made to appear. 600 A Bankrupt's Wife cannot be examined againft her Huf- band to prove his Bankrupt- cy, tho' fhe may by 5 Geo, cap. 24. be examined touch- ing the Difcovery of her Huf- ' band's Etteiils. 6 1 1 2/// to examiiie Witnejfts in perpctuam rei memoriam. A Bill lies to perpetuate Teftl- mony, (yc. before Trial, on Affidavit annexed that the Plaintiff's Witncfles are in- firm and unable to travel. 117 A Tabl E oj the Principal Matters. ffiiiomcn* Women incaj)acitated from be- ing Witnelies to Wills by the Civil Law. Tage 1 1 QI10|U5. See ^rpOfitfOlt Of ei02Uj3* W^ords no Evidence againft a Deed folemnly executed. 482 In a Profecution of the Crown, though Imce the late Statute of 4 6" 5 Ann. the Venire facias.^ which was awarded de Vicineto^ and not de cor- pore Com it at lis y was held good on Account of the Number of Precedents. 223 Ufual for the Curlitors to tejie Original Writs againft Hun- dreds and Corporations, (jc. the fame Day they are be- fpoke. 43 S Ne exeat Regjium. A Writ of Ne exeat Rcgmm lies to prevent one's going to Scotland; and how the Condition of the Recogni- zance in fuch Cafe muft be worded. Tage 263 Writs of Error. See CttO?. Scire facias. A Bill of Revivor after a De- cree to Account, is in Na- ture of a Scire facias on a Judgment, and not within the Statute of Limitations. 742 An Executor bringing a Scire facias to revive a Decree, muft fliew he has proved the Will i and there being ^ona Notahilia in divers Diocefes, if he fliews Proof of the Will in the Spiritual Court of one of the Ordinaries, this not good, but in fuch Cafe the Proof muft be in the Court of the Archbifliop. 765 Siiperfedeas. Writ of Error of a Judgment on a Mandamus^ fince p J;/f/. cap. 20. no Sr/perfedeas to a peremptory ili^//^rt/////j-. 351 Where the Writ of Excoj/imv- vicato capiendo has iflued, ajid no: adually returned into 'B. 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