UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY '1 M' Vs^iU s-iviCjPi THE mm mi r 00*' ,r^^ .*»...-«' z-^, ■i 1 / ^ A THE BEING A COLLECTION OB^ PRECEDENTS, DRAWN EV SOME OF THE LEADING MEN AT THE EQUITY BAR CONTAINING ^^^^^^^ ^^^-CcC^C^ BiLtS OF EVEKY KIND. WORDS OF COURSE NECESSARY TO ALL KINDS OF PLEADINGS, &C. ANSWERS. DEMURRERS. PLEAS. DISCLAIMERS. INFORMATIONS. PETITIONS. INTERROGATORIES UPON NUMEROUS AND VARIOUS SUBJECTS. ORDERS. AFFIDAVITS. DECREES. SELECTED BY MR. F. VAN HEYTHUYSEN, Barrister-at-Law, and Equity Draftsman. AND ARRANGED SO AS TO FORM A COMPANION TO MITFORD'S PLEADINGS. A COPIOUS DIGESTED INDEX. FIRST AMERICAN EDITION. NEW-YORK : PUBLISHED BY GOULD AND BANKS, LAW BOOKSELLERS, CORNER OF NASSAU AND SPRUCE STREETS, OPPOSITE THE CITY-HAL! AND BY WILLIAM GOULD h Co. STATE-STREET, ALBANY. Graiian ^ Banh, Printers. 1819. ^miifrai^A^ €^®iftMii CHAP. I. The formal Parts of a Bill, and Observations thereon. CHAP. II. Words of course to a Variety of Pleadings. Pretences, Charges, and Inquiries, on nuinerous Subjects. CHAP. III. Observations on original Bills. Bills for specific Performances. by next of Kin. far and against Executors, for Ship Assurance. for Partnership Concerns. upo7i Promissory Notes. upon Mortgage Matters. upon Bankrupt Matters. for Creditors. to cancel Deeds. for Bond Creditors. for Infants. for IJterary Property. mils for Annuities. for Dower. for Legatees. upon Awards. Observations upon Bills of Inter- pleader. Bills of Interpleader. Observations on Certiorari Bills. Bills of Certiorari. €HAP. IV. Original Bills not praying Relief. Bills in perpetuam rei memoriam. Observations on Bills of Discovery. Bills of Discovery. CHAP. V. Bills not original. Observations on Bills not original. Bills of Supplement and Revivor. Observations on Cross-Bills. Cross-Bills. Bills to carry Decrees into Exern- tion. IMU.M II'AL CONTENTS Ohnervatiuns on Jitjoimations. Informations. CHAP. VI. The various Defences to Bilb. Observations on Ansicers. Anstccrs. Observations on Demurrers. Demurrers. Observations on Fleas. ricas. CHAP. \ II. Of Interlocutory Matters. Observations on Petitions. Petitions. Interrogatories. Observations upon Orders. Orders. Observations tipon Affidavits. Affidavits. Observations upon Decrees. Decrees. CHAPTER 1. or JHE FORMAL PARTS OF A BILL L\ EQUITY. »«®«* THE observations which precede the Precedents here J3resented to the Chancery Draftsman, are not intended to enter at large into the theory and practice of the Court, but merely as memoranda; which, it is hoped, will be deemed sufficient for the present Publication. That we may, with facility, become acquainted with the nature of a Bill in Chancery, it will be necessary to exhibit its several Parts before we set it forth in a perfect state. We shall then proceed to the Words of Course necessary to the various Branches of Equity Pleading. A Bill in Equity is usually divided into nine Parts : — - I. The Direction, or Address. — II. The Parties. — III. The Plaintiff's Case. — IV. The Charge of Confederacy. — ■ V. The Pretence and Charge. — VI. That Part which gives jurisdiction to the Court. — VII. The Interrogating Part. — VIII. The Prayer. — IX, The usual Prayer for a Subj)cena or other Process. I. The Address is the Direction of a Bill to the per- son who presides over that Court wherein the Bill is filed. In the High Court of Chancery this form is prescribed by the person holding the Great Seal ; so that it is varied upon every change of the Custody of the Seal, or alteration. o 2 OF Tlii: FORMAL PAIlTb in the style of the person to whose charge it is committed. Tliis is also the case, in every other Court of Equity, upon similar occurrences. The Dijection of a Bill in Chancery to the Lord High Chancellor. To the Right Honorable John Lord Eldon, Baron Eldon, of Eldon! in the County of Durham^ Lord High Chancellor of Great Britain. The Direction, if the Seals be in Commission. To the Right Honorable A. B., C. D., and E. F., Lords Commissioners for the custody of the Great Seal of Great Britain. The Direction of a Bill in the Court of Exchequer. To the Right Honorable N. Fansittart, Chancellor and Under-trea" surer of His Majesty's Court of Exchequer at Westminster, the Honor- able Sir Alexander Thompson, Knight, Lord Chief Baron of the sa77ie Court J and the Honorable the rest of the Barons there. The Direction of a Bill in Chancery of the Great Sessions. To A. B. and C. D., Esquires, His Majesty's Justices of the Great Sessions for the several Counties of Carmarthen, Pembrohc, and Cardigan, the County and the Borough of Carmarthen, and Town and County of Haverfordwest, humbly complaining, sheweth unto your Lordships, S^'c. The Direction of a Bill in the Chancery of Lancaster. To the Right Honm-able A. B. Chancellor of the Dutchy and County of Lancaster, and one of His Majesty's Most Honorable Privy Cotmcil. II. In this section of a liill are contained the names of the Parties Complainnnts and their descriptions, in which their aljode is particularly required to be set forth, that the Court and the Parties Defendants to the Bill may know where to resort to compel obedience to ;my order or pro- cess of the Court, and jiarticularly for payment of any costs which may be awarded against the Plaintiffs, or l© OF A BILL IN EQUITY. 3 punish any improper conduct in the course of the suit. J\'Jit p. 41. In tliis Book and others professedly wriiten upon the Practice of the Court, we refer for the necessary information upon this head, being sensible that no Practi- tioner is without them. Ahhougli the beginnins; of a Bill is not placed under a separate section, it will be necessary to shew the several forms to the Student. The Beginning of a Bill in Chancery. Humbly complaining, sheweth unto your Lordship, your Orator, (or) OratrJx A. B., of , in the Cotmty of That, &c. N The Beginning of a Bill in the Exchequer. - Humbly complaining, sheweth unto your Honors, your Orator (or) Oratrix, &:c. Debtor and Accomptant to His Majesty, as by the re- cords of this honorable Court, or otherwise it doth or may appear, That, &c. The Beginning of an Information by the Attorney General. Informing, sheweth unto your Lordship i^or) Honors, A. B., His M^-? jesty's Attorney-General, on the behalf of His Majesty, That,&c. The Beginning of an Information by the Attorney- General, at the Relation of another Person. Informing, sheweth unto your Lordship, A. B., His Majesty's Attor- ney-General, at and by the relation of G. W., clerk, rector of the parish of , in the county of , and of W. P. and G. E., Church- wardens of the same parish, on the behalf of themselves, and of the rest of the parishioners and inhabitants of the same parish, That, &c. IJiere stMe your caseJ] And His Majesty's said Attornoy-General, by the Relation aforesaid, informeth, and your Orator further sheweth unto your Lordship, That, &c. III. The stating Part contains the Plaintiff's case, which ought to be drawn with clearness and precision, and not in a loose verbose manner. Deeds and other matters in 4 OF THE FORMAL PARTS writins: mii«;t be set forth, so as to exhibit that part on Avhich the PhwntilT's case may turn; the other parts slightly noticed, or perhaps not at all. You should be careful not to place in your Bill any matter but that which is perti- nent to the case ; for if any part of it be impertinent, it will be expun2;ed by the Court. To ^uard against this, a com- petent knowledge of Conveyancing is highly necessary ; for w ithont an intimate acquaintance with the operative parts of a Deed, no man can set them forth in a succinct and ele- g;mt manner, IV. Contains the Charge of Confederacy against the persons complained of; it is doubted if this j)art of^flTS Bill is of any utility. Alii. 42. But a Peer is never chared with combining with others to deprive the Plaintiff of his right. This part of the Bill is very frequently omitted in amicable suits. Wy. Frac. Reg. 63. The Charge of Fraiul and Confederacy. But now so it is, may it please your Lordship (or) Honor, that tlie faid A. B., combining and confederating together witii the said C. D., and to and with divers other persons at present unknown to your Orator (or) Oratrix, whose names, when discovered, your Orator (or) Oratrix prays may be herein inserted, and they made parties Defendants hereto, with proper and apt words, to cliarge them, and contriving how to injure and oppress vour Orator in tlie premises, sometimes pretend, iVc. — \\ hereas your Orator charges the contrary thereof to be the truth. And that, iVc. V. If the Plaintiffs are aware of a defence which may be made, and have any matter to allege which may avoid it, the fr(Mieral Charge of Confederacy is usually followed by an alh^gation, that the Defendants pretend, or set up the matter of thrir defence, and by a charge of the matter which mav be used to avoid Ft. This is commonly called the riiarging part of the Bill, and is sometimes also used for the purpose of obtaining a discovery of the nature of the OF A BILL IN EQUITY. 5 Defenchmt's case, or to put in issue some matter which it is not for the interest of the Plaintiffs to admit ; for which purpose the cliarge of pretence of the Defendant is held to be sufficient. Thus, if a Bill is filed on an equitable ground by an heir, who apprehends his ancestor has made a will, he may state his title as heir, and allcj^ing the will by way of pretence of the Defendant's claiming under it, make a part of the case without admitting it. Mit. p. 43» Pretence by the Heir, that an Instrument, made according to the Laws of Scotland, passed cm Estate in the Island of Jamaica, though not executed as the Law of that Island requires, and charge to the contrary. y And the said Jane, Countess of C. pretends, that the said instrument of disposition was a valid disposition of the said moiety of the said Plantation to the trusts therein mentioned. And that upon the death of the said Robert II. (the person who made the disposition) the said Jane, Countess of C, and the other trustees therein named, or some oi them, entered into the possession of the said moiety of the said Plantation, and have since continued in such possession upon the trust of the said disposi- tion, and that the said Jane, Countess of C, hath received and retained only one-third part of the profits and produce of the said moiety of the said Plantation to her own use, and that the other two-third parts of the said profits and produce have, from time to time, been laid out in the pur- chase of lands, which have been settled by deeds of entail, according to the directions of the said R. II. in the said instrument of disposition : Whereas your Orator or Oratrix's charge, that the said instrument of disposition being in its nature testamentary, and not being executed and attested as is required by the Law of the said Island of Jamaica, for passing real estates thereby devised, was void, and that upon the death of the said II. II. the said moiety of the said Plantation, together with the buildings, fixtures, and negroes thereon, descended to and became vested in your Oratrix, and the other daughter of the said R. II. as aforesaid ; and that if in truth any part of the profit and produce of the said Plantation hath been applied to the purchase of land in Scotland, and settled as aforesaid, the same hath been a wrongful application of the said profits and produce; and charge that the said Defendants, the Trustees, or some of them, have now or lately had in their hands or power a very large sum of mone}'^, which hath risen from the profits and produce of the said moiety of the said Plantation, &c. J. L, 6 OF THE FORMAL PARTS V'l. Tliis part of the Bili is intended to give jurisdiction of the suit to the Court by a general averment that the acts complained of are contrary to equity, and tend to the in- jury of the complainants, and that they have no remedy, or not a complete remedy, without the assistance of the Court; but this averment must be sup])orted by the case shewn in the Bill, from which it must be apparent that the Court has jurisdiction. MU. p. 42. The CIcntse ivhich gives Cognizance in Equity. All which actings, doings, and pretences, are contrary to equity and good conscience, and tend to the manifest wrong and injury of your Ora- tor in tiie premises. In tender consideration whereof, and forasmuch as vour Orator is remediless in the premises at and by the direct and strict rules of the common law, and cannot have adequate relief, save in a Court of Equity, where matters of this and the like nature are pi'operly cognizable and rthevable. VII. The Bill having shewn the title of the persons com- plaining, and that the Court has the proper jurisdiction for that purpose, in the seventh place prays, that the parties complained of may answer all the matters contained in the former part of the Bill, not only according to their positive knowledge of the facts stated, but also according to their remembrance, to the information they may have received, and the belief they are enabled to form on the subject. A principal end of an answer upon the oath of the Defend- ants, is to suj)ply proof of matters necessary to support the case of the Plaintiffs ; and it is therefore required of the Defendants either to admit or deny all the facts set forth in the Bill, with their attending circumstances, or to deny having any knowledge or information on tlie subject, or any recollection of it, and also to declare themselves unable to form any belief concerning it. But as experience has proved that the substance of the matters stated and charged in a Bill, may frequently be made by answering according OF A BILL IN EQUITY. 7 to the letter only, it has become a practice to add to the general requisition, that the Defendants should answer the contents of the Bill, a repetition by way of interrogatory of the matters most essential to be answered, adding to the inquiry after each fact, an inquiry of the several cir- cumstances which may be attendant upon it, and the varia- tions to which it may be subject, with a view to prevent evasion, and compel a full answer. This is commonly termed the interrogating part of the Bill ; and as it was ori- ginally used only to compel a full answer to the matters contained in the former part of the Bill, it must be founded on those matters. Therefore, if there is nothing in the prior part of the Bill to warrant an interrogatory, the De- fendant is not compellable to answer it : a practice neces- sary for the preservation of form and order in the pleadings, and particularly to keep the answer to the matters, put in issue by the Bill. But a variety of questions may be founded on a single charge, if any are relevant to it. Thus, if a Bill is filed against an Executor for an account of the personal estate of his Testator, upon the single charge that he has proved the will, may be founded every inquiry which may be necessary to ascertain the amount of the estate, its value, the disposition made of it, the situation of any part remaining undisposed of, the debts of the Testator, and any other circumstance leading to the account required. Mlt. 44. Words of course preceding the interrogating Part. To the end therefore, that the said A. B. and the rest of the Con- federates, when discovered, may, upon their several and respective cor- poral oaths, full, true, direct, and perfect answer make to all and singu- lar the matters hereinbefore stated and cliarged, as fully and particularly as if the same were hereinafter repeated, and they thereto distinctly in- terrogated : and that not only as to the best of their respective knowledge and remembrance, but also as to the best of their several and respective information, hearsay, and belief; and more especially that they may an- swer and set forth, whether (then proceeds the interrogatory.) 8 OF TUi; lOllMAL PARTS VIII. The pravcr of relief is the iie\l part ol' tlie IiilK ami is varied aceordiug to the case made, concluding al- ways with a prayer of general relief, at the discretion of the Court. Mit. 45. Prayer for an Account of Timber cut, anJ to restrain Defendants from cutting down more Timber, or from committing any other Waste. And that the said Defendant may answer the premises, and that the said C. G. may come to a full and fair account for the value of the tim- ber, and other trees which were growing upon the said devised premises, antl which have been cut down by him as aforesaid, your Orator waiving all penalties and forfeitures incurred by the said Defendant by the com- mission of such waste, and being willing to accept the single value thereof; and that what may be found due from the said Defendant on such account, may be paid to or secured for the benefit cf your Orator ; and that in the mean time an injunction may be awarded by this honorable Court, to restrain the said Defendant, his servants, workmen, or agents, flom cutting down any further timber or other trees growing upon the' said devised premises, or from committing any other waste or spoil thereon ; and for further relief. IX. To attain all the ends of the Bill, it ninthly and lastly prays, that process may issue, requiring the Defendant to appear to and answer the Bill, and abide the determina^ tion of the Coiut on the subject ; adding, in case any Defendant has privilege of Peerage, or is a Lord of Par- liament, a Prayer for a Letter- missive before the Prayer of Process ; and in case the Attorney-General, as an Officer of the Crown, is made a Defendant, the Bill, instead of praying process against him, prays that he may answer it upon being attended with a copy. For the purpose of pre- serving property in dispute, pending a suit, or to prevent evasion of .Justice, the Court cither makers a special order on the sul)j(ct, or issues a jirovisional writ, as the Writ of Injunction, to restrain the Defendant from proceeding at tlie Common Law against the JMaintiff, committing, waste. OF A BILL IN EQUITY. ^ or doing any injurious act ; or the Writ of Ne exeat regno to restrain Defendant from avoiding the Plaintiff's demands by quitting the Kingdom ; and other writs of a similar nature. When a Bill seeks to obtain the special order of the Court, or a provisional writ, for any of these Purposes, it is usual to insert in it, immediately before the prayer of process, a prayer for the order, or particular writ, which the case requires ; and the bill is then com- monly named from the writ so prayed, as an Injunction Bill, or a Bill for a Writ of Ne exeat regno. Mit. p. 46. The Form of Prayer for those and similar purposes will be found attached to Bills of that denomination in the fol- lowing pages. The most usual Prayer is for a Subpcena to appear and answer the Plaintiff's allegations. The Common Prayer for a Subpcena. • May it please your Lordship to grant unto your Orator (or Oratrix) Ills Majesty's most gracious Writ of Suhpce7ia,to be directed to tiie said A. B., thereby commanding him at a certain day and under a certain pain therein to be inserted, personally to be and appear be- fore your Lordship in this honourable Court, then and there to an- swer the premises, and to stand to and abide such Order and De- cree tlierein, as to your Lordship shall seem agreeable to e(iui.y and good conscience. And your petitioner shall ever pray, &c.' We have now set fortli the several parts of a Bill ; wc will not, however, enumerate the various kinds of Bills until we present the Draftsman wdth what will appear in the next Chapter which he will futd of the most essential use. 10 CHAPTKH IT. WORDS OF LOLIlr^L NECESSARY TO DUTEREM' BRANCHES OF ECtLllT PLEADING —ACCOUNTS TO BE TAKEN— ST ATE.MENTS.— PRETENCES. -CHAIWJES.— INQUIRIES— CONCLUSIONS AND PRAYERS. BEFORE we exliibil tlie necessary ibnns for Chancery Pleading, wliieh we intend to do according to the ar- rangement set forth in MilfonPs Chancenj, it will be pro- per to exhibit those parts which come under the head of " Words of Course ;" these the Draftsman w ill find not only useful but nocessar}'. We sliall then add a selection of Pretences, Charges, Prayers, kc. which will be found equally useful as Precedents. If these are perused by the Student with attention, it will tend to giAC him a facility and ease in drawing drafts from the variety of cases which may be placed before him for that purpose. Words of course preceding an Ansxoer, The Answer of A. B. the Defendant, to the Bill of Complaint of C. D. Complainant. This Defendant, now and at all limes lu'reaftcr saving and reserving to himself all and all manner of benefit and advantage of exception, that can or may be had or taken to the many errors, uncertainties, in- i-ufliciencies, and other imperfections in the said Comi)lainant's said Bifl of Complaint contained, for answer tiiereto, or unto so much thereof as this Defendant is advised is material or necessary for him to make an- swer unto, answerelji and saith, &c. Concluding Part. And this Defendant denies all and all manner of unlawful Combina- tion and C'onfoderacy wherewith he is by the said Bill charged, without there is any other mutter, cause, or thing in the Complainant's said Bill of Complaint contained, material ornecessary for this Defendant to make WORDS OF COURSE, &.C. 11 answer unto, and not herein or hereby well and siilTiciently answered avoided, traversed, or denied, is true, to the knowledge or belief of this Defendant ; All which matters and things this defendant is ready and willing to aver, maintain, and prove, as this honorable Court snti direct : and hereby prays to be hence dismissed, with Ids reasonable «osts and charges in his behalf most wrongfully sustained. Words of course preceding a joint Answer. The joint and several Answer of A. C. and C. D. two of the Defendants to the Bill of Complaint of E. F. and G. H. Complainants. These defendants, now and at all times hereafter saving and reserv- ing to themselves severally and respectively, all and all manner, &c. (as above,) for answer thereunto, or unto so much thereof as these Defen- dants are advised is in anywise material or necessary for them to make answer unto, these Defendants, each answering for himself and herself and not the one for the other, severally answering, say, &c. And these Defendants further answering in manner aforesaid, say, &c. IFords of course preceding an Answer of Infants by their Guardians. The joint and several Answer of A. B. and C. D. Infants, under the age of twenty-one Years, by E. F. their Guar- dian, two of the Defendants in the Bill of Complaint of G. and H. Complainants. The Defendants, now and at all times, &c. (as before.) These Defen- dants, answering respectively by their said Guardian, severally answer- ing, say, &c. And tliese Defendants further severally answering in man- ner aforesaid, say. Sec. Conclusion to the foregoing. And these Defendants, in manner aforesaid, say, they are Infants, the Defendant A. B. of the age of or thereabouts, and the Defendant C. D. of or thereabouts ; and they submit their rights and inlerebt to the care and protection of this honorable Court, without that, &c. Words of course preceding an Answer, where Persons of full age and Infants answering together. The joint and several Answer of A. B. and C. D. and E. F. and G. H. Infants, &c. These Defendants, now and at_ all times, &c. severally answering for themselves, say, &c. And these other Defendants, the lufa^ts, answer, ing by their said Guardians, severally say, &c. 12 WORDS OF COURSE NECESsAKV TO Conclusion. — And these Defendants, the said , being all Tn- fants under the age of twenty-one years, they submit tlieir respective riglits and interests in the premises to the care and protection of this honorable Court. And these other Defendants deny, &:c. Words of course preceding Exceptions to an Answer. In Chancery. Between A. B. Complainant, and C. D. Defendant. Exceptions taken by the said Complainant to the Answer put in by the said Defendant to the said Complainant's Bill of Complaint. First Exception. — For that the said Defendant hath not answered and set forth, according to the best and utmost of his knowledge, remem- brance, information and belief, whether, &c. Second Ex epf ion. — For that the said Defendant hath not in manner aforesaid answered and set forth, whether, Ssc. Conclusion. — In all which particulars the said Complainant hiiml-iy in- sists the said Defendant's Answer is altogether evasive, imperfect, and insufficient; wherefore the said Complainant doth except thereto, and ii'imbly prays that the said Defendant may be compelled to amend the same, and put in a lull and sufficient Answer to the said Bill of Com- plaint. Words of course to an Answer after Exceptions. The further Answer of A. B. the Defendant, to the Bill of Com- phiint of C. D, Complainant. Thi« Defendant, saving and reserving to himsell", as in and by his for- mer answer he hath saved and reserved, for further Answer to the said Complainant's said Bill of Complaint, or to so much thereof as this De- fendant is advised is necessary or material for him to make answer unto, answering, saith, &c. without that, Sec. N. B. T'hese words of course are equally applicable to an amended Bill, with the slight alteration of instead of saying " further an- swer," say " former Answer," and inserting the word " amended" before <' Bill." Words of cour.'^e preceding the Answer and E.vamination put in to Interrogatories^ exhibited by a Master in Chancery. In Chancery. Between A. B. and C. D. Plaintiffs, and U. F. and G. H. Defen- dants, DIFFERENT BRANCHES OF EQUITY PLEADING. 13 The Answer and Examination of the Defendant E. F. one of the Execu- tors named in the last will and testament of X. Y. Esquire, the Ad- ministrator, with the will annexed to A. B. Esquire, deceased to In- terropratories exhibited on behalf of the Plaintifls, before A. T. Esquire, one of the Masters of the Iii«;:h Court of Chancery, to whom this cause stands referred, for the examinf'tion of the said Defendant G. II. the other Defendant named in the uill of the said X. Y. and also of t!ie said Defendant E. F. pursuant to the decree made on the hearing of the said cause, bearing date, Sec. 1st. To the 1st Interrogatory this Examinant saith. Sec. Words of course preceding Exceptions to a Masterh Re- port, as to the Sufficiency of Defendanth Answer. In Chancery. Between A. B. Complainant, and C. D. Defendant. Exceptions taken by the Complainant, to the Report made on the day of by E. F. Esquire, one of the Masters of this honorable Court, concerning the Sufficiency of the said defendant's Answer to the said Complainant's Bill. 1st. The said Exceptant saith that the said Master hath by his said Report certified' or stated, that the said Defendant's Answer is sufficient, in that he hath thereby set forth, according to the best of his knowledge. &c. whether, &c. as required by the Complainant's Bill, whereas the said Master ought, as this Exceptant is advised, to have certified and reported the said Defendant's Answer insufficient, inasmuch as the said Defendant hath not, as the said Complainant humbly submits, answered and set forth such several raattei-s in such manner as by the said bill is required. And therefore the said Complainant excepts against the said Master's Report and prays that the same may be set aside, and the said De- fendant's Answer adjudged insufficient. Words of course preceding Exceptions to a Master^s Re- port, as to the Sufficiency of Defendant s Answer. In Chancery. Between A. B. and others, Complainants, and C. D. Defen- dant. Exceptions taken by the said Complainants to the report made on the day of , by P. M. Esquire one of the IMasters of this honorable Court, concerning the sufficiency of the said Defendant's Answer to the said Complainant's Bill. 14 ACCODNTS PROPER TO BE TAKE^^ 1st. The saitl Exceptants severally say, that the said Master hath by his Report certified or stated, that the said Defendant's Answer is sulB- cient, ill that he hath thereby set forth, according to the best of his know- ledge, «Scc. whether, Sci:. as required by the said Complainants' Bill, whereas the said Master ought, as these Exceptants are advised, to have certified and reported the said Defendant's Answer insufficient, inasmuch as the said Defendant hath not, as the said Complainants himibly insist, answerecj and set forth such several matters in such manner as by the said Complainants' Bill is required. And therefore the said Complainants except to the said Master's Re- port, and pray that the same may be set aside, and the Defendant's Answer adjudged insufficient. Another form of Exceptions to the Master'' s Report. In Chancery. — Between, &c. Exceptions taken by the said Complainant to the Report of (i. 11. Es- quire, one, &c. made in this cause, and bearing date, &:c. Fii-st Exception. — For that the said Master hath in and by his said Report stilted, &c. Second Exception. — For that the said Master hath in and by his said Report certified, &c. In all which particulars the said Complainant doth except to the said Master's said Report, and humbly appeals therefrom to the Judg- ment of this honorable Court. Accounts proper to be required in a Bill against the Trustees of a real and Personal Estate for payment of Debts , ^•c. for a Settlement of Accounts respecting the Trust Estate. 1st. That the said Defendants may set forth an account of all and every sum and sums of money received by them or either of them, or by any person or persons by their or either of their order, or for their or either of their use, since the time of the date and execution of the said indentures of lease and release, for or in respect of the rents, profits, intt.'cst, or income of the freehold and leasehold estates and other property and effects conveyed and assigned to them by the said indentures, and when and from whom, and U)T what in particular, all and every such sums were respectively received. 2d. A rental, description, and particular, of all such parts of the said freehold and leasehold estates as have been sold and disposed of by them, STATEMENTS, PRETEiNCES, THARGES, &C. 15 or either of them, by any person or persons, by iIk? order or directions of them or either of them, and also an acconnt of all and every the sum which were received by, or by the order, or for the use of them the said Defendant or either of them, for or in respect of such sales or any of them, and when, or about what time or times in particular, and by whom, and from whom, and for what parts or part of the farm, estate, and premises, such sums were respectively received. 3d. An Account of all and every sum and sums of money which hath and have been paid by them or any of them, or by any person or persons by their order or on the account of them or either of them, in or towards satisfaction of the debts due and owing from or by the said C. G. at the time of the date and execution of the said indentures of lease and release, or trust deeds, and when and to whom, and for the payment of what par- ticular debt or debts, all and every such sums were severally respectively paid. Accounts to be required in a Bill filed for the Purpose of calling an Attorney or agent to Account for llemit- tances. 1st. An Account of all sums received by, or by the order, or for the use of Defendant, belonging to J. W. or his estate, during the life time of J. W. or since his death, as such Attorney or Agent. 2d. An account of all goods, wares, merchandizes, property, and ef- fects, remitted and sent by the said J. W. in his life-time unto, and re- ceived by, or by the order, or for the use of Defendant, and all and every the natures, kinds, cjuantities, qualities, full, real, and true values of ail and every part thereof. 3d. An account of all and every sum and sums of money received by Defendant, &c. for and in respect of the sale thereof, and of every or any part or parts thereof, and when and by whom, &c. 4th. An account of'all parts. Sec. of goods, &c. which remahi unsold,, and their natures, &c. and wliat is become thereof. 5th. A full and true list of all books of account, and their accounts, letters, papers, vouchers, memoranda, and other writings, relating to the estates, affairs, and concerns of the said J. W. Mhich are now, or ever were, in Defendant's custody, possession, or power, &c. Cth. An account of all monies paid to or for the n^o of .T. W. and when, where, and to whom, anil for what. A-c. J L. 16 SiAlKMEM.-, rnKlE.NCLS, illARCKS, k,C. Slatcmcnt that Books arc in the Castodij of Dffcndant. and Inquiry thereto. And that A. 1j. Iintli now, or had, in his custody or power, some books of receipts, papers, or writings, which belonged to the said and contained some entries or memoranda, in some manner referring or relating to his real or personal estate, or some part thereof, or the said knows what, hath become of such books, papers, or writings ; and the said ought to set forth a list or schedule thereof, and to leave the same, if in his custody or power, iji the hands of his clerk in court, for the usual purposes. Inqidri/. And whether the said hath not now, or hath not had, and when last in his custody or power, some and what book or books of ac- count, papers, or paper-writings or writing, which belonged to the said , and contain some and what entries or entry, or memoran- dum, hi some and what manner referring or relating to his real or per- sonal estate, or some and what part thereof, and If tlie said hath not now such books or book, papers, or paper-writings or writing, in his custody or power, then that he may set forth what hath become thereof, and where the same, and every of them, now are or is, or last were, to his knowledge or belief, and that he may set forth a list or schedule of all such books, papers, and writing?, and may leave the same, or such thereof as he hath in his custody or power in the hands of liis clerk in court for the usual purposes. Application, Chanrins^ Fart, and Prayer to a Bill, that Tenant may be obliged to put and keep Premises in Re- pair, and Injunction from farther Waste by ploughing up, contrary to the Terms of his Lease. And theref<^re Plaintiff hath, at several times, by himself and his agents, in a friendly manner applied to, cVc. and requested him to put all the said houses, out-houses, and all the Iniildings and fences, &c. into good rf-pair, and so keep the same in such orood and sufficient repair dur- ing the rfmaiiHhr of the tc^rm, and to forliear to plough any of the lands demised to him as aforesjtid, which he is not at liberty to plough, according to tlie terms of the said lease, and to make satisfaction to Phiiiiliir fur all the damage done to the said estate by his miimanage- meat. or neglect in t!ie niajiagemcnt thereof, according (o tiie lernjs of PRETENCES, CHARGES, &C. 17 the said lease, and course of husbandry practised in the neighbouring country. And plaintiff well hoped, &c. but now, &c. Pretends that the said messuage or tenement, and all the out-houses and buildings there belonging, and all the fences, gates, and stiles on the said lands, have been constantly, during his possession thereof, and now are, in good repair and condition, and that he hath never ploughed any part of the said lands which he was not at liberty to plough, by the terms of the said lease, and the course of husbandry used and approved in the neighbourhood thereof, and that he hath never in any manner neglected the manuring or taking care of any part thereof, but that he hath con- stantly used and employed, cultivated and manured, all such lands, in a proper, regular, and careful manner, according to the terms of the said lease, and a good course of husbandry used and practised in the neigh- bouring country, and that all the particulars of the said messuage, and the house and buildings thereto belonging, and of the said lands, and the fences, gates, stiles, and ditches thereon, are in as good plight and condi- tion, in all respects, as the same were when he entered thereon, and that he hath never cut, or caused to be cut, any timber, or other trees growing on such lands, or any part thereof. Charge contrary, and that the said messuages and lands, with the ap- purtenances thereof, are now, from the neglect and gross mismanage- ment of the said Defendant, in so much worse condition than the same were in at the time of his entering thereon, and that the same are, on that account, worth to be sold c£'100 less than the same were worth to be sold at the time when he the said Defendant entered thereon, and it would cost cflOO and upwards to put the same into as good plight and condition as the same were in when he the said Defendant entered there- on, to the end, &:c. Prayer. That Defendant may be obliged to put the said messuage or tenement, building, gates, &c. into good and sufficient repair, and may make satisfaction to Plaintiff for all waste committed by him on the said estate, and all damage done by him thereon, by his mismanagement or neglect. Plaintiff waiving all right, &c. and that he may be al- lowed to keep the said estate, &c. in good repair and condition dur- ing the remainder of his interest therein, and to manure and culti- vate the same according to the terms of the said lease, and may be restrained, by the injunction of this honorable court, from commit- ting any further waste or spoil on the said estate, or any part there- of, and that all proper directions may be given for the effectuating- the purposes aforesfiid, and further relief. 4 18 PRETENCES, CHARGES, &iC. Purl uf a Bill h)j Executors, who hud Notice of adverse Claims, for the Purpose of having the same ascertained. Tliat the said E. K. dopartrd this life on, See. and the said I. K. &:c. Sec. one of tlio residuary legatees named in the said will of the said Tes- tator, as atbresaid, have all attained their respective ages of twenty-one years, and the said residuary legatees are now become entitled to have their respective shares of the said residuary property paid to them. That the said Testator's residuary property now consists of the sum of £ £5 per cent. Consols, Sec. and the sum of £ in the liands of Plaintiffs : and Plaintiffs are ready and willing to divide and dispose of the said residuary property, according to the directions con- tained in the said Testator's will. That E. S. and I. S. claiming tobr entitled to some interest in property to which the said is entitled, in right of his said wife, of the said Testator's residuary property, under an assignment made to them by the said C. F. and his wife, served a notice in writing to that purport on Plaintiff I, S. as by the said notice, Sec. That on, Sec. another notice was sei-\'ed on Plaintiffs by Messrs. G. and I. of, &:c. claiming the said share of the said C. F. in right of M. his wife, by virtue of an assignment from the said E. S. and I. S. but the said Messrs. G. and I. having since become bankrupts, another no- tice was served on Plaintiff's solicitor, on. Sec. by Messrs. W. and Son, the solicitors under the commission of bankrupt, awarded against the said G. and I. purporting that W. C. ilc. having been duly chosen and appointed assignees of the estate and effects of the said G. and I. claimed the said share of the said C. F. and his said wife, in right of the said G. and I. as by the said two notices, &;c. That on or about, &c. a notice was served upon Plaintiff by W. G. of, &c. stating a certain assignmt^nt made by the said, h; rein before in that behalf mentioned, except what if any thing may have come to the hands or possession of the said I. S. And the saiil, (S:c. severally claim to be entitled to the said share of the said C. F. and M. his wife, and the said I. K. claims to be entitled, notwithstanding the said assignment of their shares of the said residuary propertj', as residuary legatees ; and the said Defendant I. K. sometimes claims to be further interested in this residuary estate and effects, and the said Defendant F. S. refuses to come to any account in the premises. All which. Sec. Pretence in a Bill for specific Performance, Lessee against Lessor, that it icas not in Writing, and Charge that this loas immaterial, Plaintiff having repaired the Pre- mises and expended Money in confidence of the Agree- ment. And the said Defendant at other times pretends that the said agree- ment or agreements, not having been reduced into writing, he is not bound to perform the same ; whereas your Orator is advised and hum- bly submits that the said Defendant is liable to perform the same not- withstanding. And your Orator charges, that upon the faith of the said first mentioned agreement, your Orator, with the privity and know- ledge of the said Defendant, continued in the possession of the said premises after the expiration of your Orator's said original lease, and proceeded in the said repairs which had been pointed out by the said surveyor as aforesaid, and laid out great suras of money in such repairs. And your Orator charges, that upon the faith of the said second agree- ment, touching the lease of the said premises, to commence at IMichael- mas-day, , your Orator hath ever since continued in the possession of the said premises, and hath completed the said repairs, and rebuilt 20 PRETENCES, CHARGES, &,C. the said barns, and hath thereby incurred a very great expense. And your Orator further charges, that the said Defendant, since the expiration of his soid former lease, hath been paid by your Orator, and hath ac- cepted from your Orator the said increased yearly rent of £ per an- num, from time to time as the same became due. A. C. Pretence and Charge in a Bill that Personals are insvf]l~ cient, and are payable out of real Estate ; doubt true Construction of the Will; Pretence that the Will will not extend so as to pass real Estates, <$"€. That the said Defendants severally reftise to comply with the Plain-* tiffs' aforesaid requests ; that said Defendants sometimes pretend that the |)ersonals arc insufficient. Charge contrarj^, and if not, charge that the said Testator's real estates come to the hands of the said Defendants, his Executors and Trustees, ought to be applied in aid of his personal es- tate, till the whole of the aforesaid purposes are satisfied, and so the said Defendants admit, but at other times they pretend that the rents and profits alone of the said Testator's real estates arc applicable to the said before mentioned purposes, and that the said Defendants have no power given them by the said will over the paid Testator's real estate or any estate or interest therein that can enable them to apply the same or any part thereof in aid of the said Testator's personal estate, further than the reception of the said rents. Charge, that by the construction of the said Testator's will, the whole of the legacies and sums, as well present as contingent, are charged upon botii the real and pi r^onal Estate of the said Testator as one fund, and that the said Defendants, his Exe- cutors, take such estate and interest therein, and no less, than may be capable of fullv ..flfectuating the said Testator's intent and meaning, and Batisfving the whole of the benefits intended to he given by the said will, and so they will sometimes admit ; but then they pretend that doubts are entertained uiili respect to the true con:-truc(ion of the said Testa- tor's will in tins and divers other respects, and with regard to some of the Plaintiff's claims in respect of some of their legacies and annuities hereinbefore mentioned, and that they the said Defendants cannot •siufely proceed in execution of the trusts of the said Testator's will, by reason of such said doubts and difficulties, without the aid of a Court of FOquity, nevertheless they refuse to state and discover wherein such pre- tended doubts and difficulties consist. That said Defendants (the co- heirs) preteiid tiuit the said Testator's will was not so executed or at- ♦csf';d, f-o HS to pats real estiilf's by devise, and he the said I. D. claims PRETENCES, CHARGES, ScC. 21 some estate or interest in the Testator's real estates in rigiit ol the said A. his wife, and the said A. and B. as co-heirs at law of the said Tes- tator, threaten to disjMite the said will. And the said A. D. &c. (the Executors) claim some legacies as due to themselves, and threaten to retain the same immediately out of the personal estate of the said Tes- tator in their hands. Charge, that after providing for the annuities imme- diately preceding the life estate given her in the said Testator's residue in the said will, all the other legacies are postponed till after her decease, and that the said A. D. &c. (the Executors) ought not to retain any part of the said legacies claimed b}' them, until that period. Pretence and Charge in a Bill, that Defendants have for- feited their respective Rights tinder the Testator'' s Will, which contained a Clause, that in case the Trustees were molested by the Devisees, and their Devise should cease* And at sometimes the said last mentioned Defendants pretend, that under or by virtue of the said will, your Orators are barred from insti- tuting any suit in this honorable Court against them the said named Defendants, touching the said Testator's estates, or the distribution thereof, inasmuch as they the said last named Defendants are molested thereby ; and that your Orators have therefore, under or by virtue of the clause contained in the said will in that behalf, forfeited their respective interests under the same. Whereas your Orators charge, and humbly insist, that no forfeiture whatever is incurred by them in so doing, and the more especially, inasmuch as they charge that it is mani- festly to be presumed that the said Testator did not by the aforesaid clause contained in his said will, mean to protect them the said last named Defendants against being duly called upon by the persons entitled under the said will for an account of the matters aforesaid, but the rather from being wantonly and maliciously molested in the execution of the trusts thereof, and so the said last named Defendants will themselves at other times admit, but nevertheless under some such or the like pretences, or some others equally unreasonable and unjust, they have refused or declined to comply with your Orator's most rea-. sonable requests. • 22 PRETENCES, CHARGES, &C. Charge, if Papers, i^-c. produced, Flaialiff\^ Title would appear. Furlher charges, thai in case the said letters, notes, wiilings, drafts, ro|jies, abstracts or extracts of letteis, notes, or written messages, and other the papers, memoranfluins, and writings, were produced, or the purport or contents thereof were set forth and discovered, which Plain- li(T humbly insists they ought to be, the truth of the several matters and things hereinbefore stated and charged, would manifestly and clearly appear, and particularly that Plaintiff and the other owners of the said «argo were and are entitled to the produce or money arising by th*- sale of the said cargo, which was received by the said I. C. and remitted as aforesaid to the said confederates, but which they nevertheless refuse to produce, although frequent applications have been made to them for that purpose. Pretence. And at sometimes Defendants pretend, that they have produced and have shewn to Plaintift' all the letters, papers, and writings in their or either of their custody or power, relating to the matters and transactions aforesaid. Charge. Contrary, and that Defendants have not produced or shewn to Plain- lifi", all the letters and copies of letters, and other correspondence, nor all the papers and writings in their custody or power, relating to the aforesaid matters and transactions ; and in particular Plaintiff charges, that notwithstanding the said confederates did sometime since produce and lend to Plaintiff, in consequence of an application made to them for that ])urpose, copies of some letters and correspondence, and also of some other papers relating to the matters and transactions aforesaid, they nevertheless secreted, withheld, or kept back, sundry of such letters, and a great or some part of such correspondence, and sundry of the papers or writings in their custody or power, relating to the matters and transactions aforesaid, and which were material to shew your Orator's right to a part or share of the money so remitted to them the said confe- derates, on account of the produce of the sale of the said cargo, and that divers or some of the papers which the sa«d Defendants delivered or sent unto Plaintifl', as copies of such letters and correspondence as afore- said, were not faithfid and exact copies of such letters and correspon- dence, but partial (extracts thereof or therefrom ; and that sundry material parts and passages of such letters thereof as tended to shew the right and litlc of Plaintiff and the other owners of the said cargo, or some or one PRETENCES, CHARGES, &;C. 23 of lliem, to llie money remitted to the said confederates as aforesaid, on account of tlio produce or money arising from the sale of the said cargo, were designedly or intentionally lelt out or omitted in the copies so sent or delivered to your Orator, and that the same was so done with a view to prevent your Orator from being made acquainted with the whole pur- port or contents of the said letters and other correspondence, and of con- cealing from your Orator and the other owners of the said cargo, their right to receive from the said confederates, or their claim upon the said confederates, in respect to the produce or money arising from or pro- duced by the sale of the said cargo, and in their hands as aforesaid, or with some other fraudulent or unfair view, intent, or design. But, ne- vertheless, under such and the like pretences, confederates refuse to pay Plaintiff one third or any other part or share of the money remitted to them and now in their hands, arising or produced by the sale of the said cargo ; and PlaintifT having commenced an action at law against the said confederates, to recover or obtain payment from them of the money which they have received for Plaintiff's use in manner aforesaid, Plain- tiff is unable to proceed with effect therein without a full disclosure and discovery from the said Defendants, and without having one or more commission or commissions for the examination of his witnesses in Jamaica, and at, &c. in which places, or some or one of them. Plain- tiff's witnesses who can prove the truth of the several matters and things hereinbefore stated and charged, reside, and therefore the said Defend- ants set Plaintiffs at defiance. Inquiry. And whether they, the said Defendants, or one, and which of them, have or hath not now, or had not at some and what time and when last, in their or one and which of their custody, power or possession, sundry, or some and what other letters or letter, notes or note, written messages or message. And whether or not also some and wliat copies or copy, drafts or draft:, abstracts or abstract, extracts or extract of letters or let- ter, notes or note, or written messages or message, which were or was, and when written or sent by them, the said confederates, or one, and which of them; and the said I, C. and W. II. or one and which of them, or some and what other persons or person, relating to the matters and transactions aforesaid, or some or one, and which of them, and particu- larly whether or not relating to, &c. And whether they the said De- fendants, or one and which of them have or hath not also now, or last, and when had, in their or one, of which of their custody, posseisioi:, ^jr power, various or some and what papers or paper, memorandums or me- morandum, writings or writing, relating to or in some manner concern- ing the 5amo mattf^rs and transactions, or some and which of them, or 24 rRETE>'CES, CHARGE^, Lc. what is become thereof, and with whom, and in whose custody, posses- sion or power, and for whose use they the said Defendants, or either and which of them last, and when saw or heard of the same, or any and which of them, and that tliey the said Defendants may set forth a list and schedule of all and every siicii letters, notes, written messages, copies, a!)stract3 or extracts of papers, memorandums, and writinfjs, and that they may leave the same in the hantls of their dork in Court for the se- veral purposes. And whether they the said Defendants, or either and which of them, or any and what persons or person, by their or cither and which of their orders or directions, have or hath ever, and when, and how, and in what manner, and whether or not wilfully or intentionally, burnt, destroyed, altered, obliterated, or defaced the said letters and other premises, or any and which of them. And in case the same have been so burnt, de- stroyed, altered, obliterated, or defaced, whether the same was rtot done with a view to prevent a production of the same, and a discovery of the several matters and information therein contained, or for what other purpose. And whether, in case the said letters, notes. Sec. and other the said papers, memorandums, and writings, were produced, or the purport and contents thereof set forth and discovered, the truth of the several matters and things before stated and charged, or some or one and which of them, would not manifestly and clearly, or in some and what degrep ap- pf^ar, and particularly whether or not that, \r. Inquiry. And whether the said Defendants, or either and which of them, have «#r hath ever and « hen, produced and shewn to your Orator all or any> :ind which of the letters, or copies of letters, or correspondence, or all <>r any, and which of the papers or writings in their custody or power, relating to the matters and transactions aforesaid, and whether they the .said Defendants did not upon such occasion secrete and withhold, or k«'fp back sundry or some, and which of such letters, and a great part of some and what part of such correspondence. And whether or not .sundry or some, and which of the letters and writings in their or one and which of their custody, possession, or j)ower, relating to the mat- ters and traiii^actions aforesaid, or some and which of them; and whe- ther the same, or some and which of them, were or was not material to shew Flaintiff's right to a part or share of the money so remitted to iheuj the said Deteudants, or one and which of them, on account of the produce of the sale of the said cargo, or how otherwise. And whe- ther divers or some, and which of the papers which the said Defendants declared to Plaintiff, or some person or persons on his behalf, as copies PRETENCES, CHARGES, &C. 25 of copy of such letters or letter, or correspondence, were or was not, and in what respect, unfaithful copies or copy thereof, or whether the same were or was not, and in what respect partial extracts or a partial extract thereof or therefrom ; and whether sundry or some, and what material parts or part, passages or passage thereof, and particularly whe- ther or not such parts thereof as tended to shew the right and title of Plaintiff and the said owners of the said cargo, or some and which of them, to the money remitted to them the said Defendants, or one and which of them, on account of the produce or money arising from the pro- duce of the sale of the said cargo, were or was not intentionally or de- signedly, or how otherwise, left out or omitted in the copies or copy so sent or delivered to Plaintifl' as aforesaid. And whether the same was not so done with a view to prevent Plaintifl' being made acquainted with the whole or some and what part of the purport and contents of the said letters or letter, or other correspondence ; and whether or not with a view to conceal from Plaintiff and the owners of the said cargo, or some, &c. their or some, and which of their rights, to receive from their or some, and which of their claims upon the said Defendants, or one and which of them, in respect of the produce or money arising from or produced by the sale of the said cargo, in their or one and which of their hands, or with some and what other fraudulent or unfair view, intent, or design. J. S. Charges in a Bill against an Executor, tts to an Account and Balance due, the Account scheduled in the Bill. Pretence personally insufficient, charge contrary. And at other tiihes the said Defendant pretends that such balance as aforesaid is not justly due and owing to your Orator ; whereas your Orator charges that the said sum of £ , is the just balance due to your Orator upon the'set- tlement of all accounts between your Orator and the estate of the Said 1. II. And yeur Orator hath, in the schedule to this his Bill, set forth the private account between your Orator and the said I. H. and how he »nakes out the said balance ; and your Orator further charges, that the sum of £ , charged in the said scheduled account to be due to your Orator, by the promissory note of the said I. H. bearing date, &c. was advanced by your Orator to the said I. H. at thr( c different times, shortly bef)re seen the Te.'^tator, and therefore was totally ignorant of ]iis weak state of mind, and iiis inability, &c. representing themselves as his heirs at law, a!id taking no notice of plaintiff, by which means the attorney was prevailed u))on to make the will, and attend the execution, otherwise he would not have been concerned tiierein, having made objections on ac- count of Testator's insanity, and weak slate of mind, and hath declared himself to this effect since the Testator's death, and that he received the tt.stimoni<.>s for the will from the Defendants, and that the said attorney dt ri> I'd the apotliecary might be present at the execution, to which the Def-ndants objected. C harge, that the will ought to be set aside, and that the Testator's real estate descended to Plaintiff as his heir at law. Charging Part of a Bill fled hy an Annuity Creditor ^ agaimt the Trustees, under a Deed, empowering them to sell and fall Timber for re-purchasing the Annuity, charging them with Misapplication, inasmuch as they ap- plied the Produce oj the Sale in discharging the Arrears of another Annuity under an Indemnity. Ijut now so it is, &c. They the said Defendants refuse to comply with your Orator's said recjuests, sometimes pretending that (he said C. S- never executed such instrument or power of attorney as aforesaid, or any other instrument or power of attorney whatever, for the purposes afore- said ; whereas your Orator charges the contrary of such pretence to be true as aforesaid, and so the said Defendant will at other times admit. But then they pretend that they the said Defendants, I. H. I. W. B. and W. C. (the Trustees), never did cause any timber or other trees whatever, which were growing on the aforesaid manors and estates, or any of them, to be felled or cut down, and sold and disposed of under and by virtue gf the said power of attorney, nor ever received any sum or sums of moneys arising by such sale, or any part thereof, whereas your Orator charges 28 PRETENCES, CHARGES, &C. the contrary thereof to be true, and so the said DefciKluiits \v\\] at . other times also admit. But then tliey pretend that the said W. C. hatii accounted for and paid the money arising from the sale of the said timber to the Defendants, I. W. and F. E. (the persons who hold the other annuities), who were entitled to receive the same in preference to your Orator, and had some preferable claim or lien thereon, and had ob- tained some order of this honorable Court for the payment thereof upon the said W. C ;, whereas your Orator charges that the said I. W.. and F. E. had no lien or claim whatever thereon, nor any right or title to receive w call upon him the said Defendant W. C. for the payment of the same, or any part thereof, or to compel him to account for or pay the same, or any part thereof; and that if in truth any order of this honorable Court was made respecting the payment of the said sum of money to the said I. W, and F. E. or in any manner relating thereto, yet that this honorable Court was surprized in such orcier, and \yas not in any manner apprized of the truth of the transaction ; and that the said W. C. confede- rating with the said I. W. and F. E. purposely suppressed or concealed from this honorable Court the authority under which the said timber had been »ut, and the purpose for which it was meant to be ap|>lied. And your Orator further charges, that upon payment being made to the said I. W, and F. E. by the said Defendant W. C. (in case any such was made), he the said Delendant required and look from them some indem- nity or security against the right or claim of your Orator to such money. And your Orator further charges, that if the said sum was paid by the said \V. C. to the said I. W. and F. E. the same was so paid to them under the pretence that considerable arrears were due to them as co-part- ners, in respect of any annuity granted to theui ljy the said C. S. Whereas your Orator charges, that the said I. VV. and F- E. had, at the time ol Buch payment, by their receipts, from the estates and property of the said C, S. have fully paid all arrears of their said annuity ; and your Orator charges and humbly insists that the said DeA ndants I. H. W. H. and W. C. having accepted the trusts under the said power of attorney, oucht to have paid the said monies arising by such sales as aforesaid (after such deduction as aforesaid) or a competent part thereof, to your Orator, in or towards the re-purchase of the said annuity of jC and that the said Defendant W. C. having paid the said monies arising by such sales as aforesaid, contrary to the directions contained in the said power of attorney, was guilty of a breach of trust in so doing, and made himself personally liable to answer and pay this annuity to your Orator. And your Orator further charges, that the said J. W. and F. E. were, at or about the time of the making of the said power of attorney, fully ap> prized of the same, and of the purpose thereof, and did, by ^ letter wri|- PRETENCES, CHARGES, &C. 29 ten by their solicitor, fully assent thereto. But nevertheless, the said Defendants refuse to comply with your Orator's aforesaid requests. I'o the end, &c. Prayer. And that an account may be taken of all and every the monies which have been received by the said W. C. I. H. and W. B. or by any person by their order, or for their use, for or in respect of such sales as aforesaid. And that the said Defendants may be decreed to pay what shall appear to be due from them respectively, upon the taking the aforesaid account. And that the same, after such de- duction as aforesaid, or a competent part thereof, may be paid to your Orator in or towards the re-purchase of the said annuity of £ upon tlie terms provided by the said indenture of the day of And for further relief, &c. J. ?. Pretences and Charges in a Bill for Settlement of Part- nership Accounts, where only an Agent for, and no Ar- ticles of Copartnership were executed, impeaching the Account which had been delivered by Defendant. Pretends that he never agreed to enter into partnership with Plaintiff, nor ever subscribed such memorandum or agreement as aforesaid, or any other memorandum or agreement for that purpose, but at other times admitting the contrary thereof to be true, he pretends that he hath constantly, from time to time, duly and regularly accounted with Plain- tiff for all the several sums of money received by him, the said Defendant, on account of the said partnership business, and the produce, gains, and profit thereof, and that Plaintiff hath, from time to time, received his share and proportion of such monies, and the clear gains or profits thereof, after deducting the necessary outgoings and expences attending or relating thereto, to the said copartnership business, and that all the accounts relating thereto have been regularly adjusted and settled down to the present time. Charge contrary. And that no accounts whatever have been ever adjusted or settled be- tween Plaintiff and Defendant, at any time since the commencement of the said copartnership, in any manner relating thereto, or to the business thereof, nor hath Plaintiff received any sums or sum of money whatso- 35 PRETENCES, CHARGES, &,C. ever from Defendant, on account of Defondiint's leccipts respecting or relating to tlie said copartnership, or the gains or profits thereof. Pretence that Plaintiff hath received Monies. All which the said Defendant will at other times confess, but then he pretends that Plaintiff, from time to time, since the commencement of the said partnership, received from clients and other persons, on account of the said copartnership, and the business and profits thereof, sundry sums of money to a large amount, in the whole, jjnd greatly exceeding the amount of the several sums received by hira, the said Defendant, on tiie same or the like account, and also exceeding Plaintiff's moiety or share of the clear profits or gains of the said copartnership business. Charge contranj. And that the several sums received by Plaintiff, on the account afore- said, were trifling and inconsiderable, in comparison with the several sums received by Defendant on the same or the like accounts, and that the said several suras so received by the said confederate greatly exceed his moiety or share of the profits, clear gains, and produce of the said copartnership, and that, upon a fair balance of ail accounts relating to the matters aforesaid, the said Defendant is justly indebted to Plaintiff in a large sum of money in respect thereof, and so the said DelVndant knows, and has reason to believe, and docs believe, and so the .'■ame would a})pear in case Defendant would set forth, as Plaintiff humbly in- sists he ought to do, a full and particular account of all his receipts and payments on aroount, or iji respect of, or relating to the said copartner- ship business, and the concerns thereof, and would produce all the books of account, and other books and papers in which any entries are made relating thereto, in his custody, possession, or power, but which he nevertheless refuses to do, or to give Plaintiff any account thereof, or any satisfaction relating thereto. Pretence of an Account delivered. And at some times Defendant pretends that he hath delivered or sent unto Plaintiff a full, true, and just account of all the said coj)artner- sliip, and the business or concerns thereof, and he alleges that there are no errors, omissions, or mistakes therein. Charge. That notwithstanding Defendant hath delivered unto Plaintiff an ac- count. \\\\\c\\ he pretends to be an account of all his receipts and pa}'- PRETENCES, CHARGES, &.C. 31 iiients, in respect of the said copartnership, from the commencement of the said copartnership, and of the bin incss or concerns thereof, yet Plain- till" cliarges that llie said pretended account is, in many respects, false, unjust, and untrue, and that there are divers errors, mistakes, omissions, false and improper charges, items, and particulars therein, to the preju- dice of your Orator; and that Defendant hath moreover inserted and taken credit therein for several suras of money, which were not actually paid by him, and also for several other sums which ought not to have been brought into the said account, and with the payment whereof your Orator, or the said copartnership, is by no means chargeable ; and ia particular, Plaintiff charges that the first schedule annexed or under- written, and which Plaintiff prays, &c. contains a list of several of the omissions made, or items or articles omitted, to be inserted in the said account, to the prejudice of your Orator; and that the second schedule, hereunto annexed, also contains a list of several overcharges, or impro- per charges, or items, made in the said pretended account so delivered to Plaintiff. Pretence ready to accounL All which Defendant will at other times admit ; but thoii he pretends tliat he hath been at all times ready and willing to come to an account ^^ith Plaintiff and to adjust and settle all the accounts relating to the matters aforesaid, without suit or litigation. Charge, And Plaintiff further charges that he hath, by himself and other per- sons, made sundry different applications to Defendant to come to an amicable settlement of the several accounts aforesaid, but the said De- fendant hath refused to comply with such applications and requests, and under such or the like, &c. Pretence and Char^-e in a Bill to set aside an Assis^nment of Effects for the Benefit of some Relations, the same be- ing loithoiU valuable Consideration, and ivhen Assignor was considerably in Debt. Sometimes pretends that he hath not, since the death of the said L.I. his late father, deceased, possessed any personal estate or effects which were belonging to him at the time of his death, he the said I. I. not being possessed of, or entitled unto, any personal estate or effects whatsoever, for that the said L I. some time before his death, and in or about the 32 PRETENCES CHARGES, ^li. year , executed some deed or deeds, insfrmncnt or instruments, in writing, wliereby he as:«igned unto the said W. I., or to some other person or persons in trust for him, or for his use or benefit, or in trust for, or fur the use or benefit of some friend or relation of him the said I. I, abso- lutely and for a good and valuable consideration, all the personal estate and efiects whereof he was possessed, or unto which he was entitled, and that, by virtue of the said assignment, the said W. I., or such other per- son or persons in whose favour such assignment is pretended to have been made, became well entitled thereto, and the same were accordingly delivered unto him, or them, by the said I. I. in his life-time, but the particulars of such assignment, or to whom the same was made, the con- federate W. I. refuses to discover. Charge Contrary. And that the said confederate ought to admit assets, Sec. on account, &c. And Plaintiff further charges, that in case the said I. I. did really execute any sucli deed or deeds, instrument or instruments, in writing as are hereinbefore pretended to have been executed by him, and did thereupon deliver such personal estate and effects to the said W. I., or any other person or persons, (but which Plaintiffs do not admit) the said I. I. was, at the time of the date and execution of the said pretended deed*, indebted to several persons to a considerable amount, and such deed or deeds, in- strument or instruments, were or was executed by him, and such personal estate and effects delivered by him, with a view and for the sole purpose o( defrauding his creditors, and to elude the payment of the debts by him said C, and the names and places of abode of the subscribing witnesses tljereto. And under the circumstances aforesaid rininiilT charges and in;ists that the said pretended release or instrument (if ever such was executed) ought to be delivered up to be cancelled, as having been fraudulently and unfairly obtained from the said C. : but nevertheless the said confe- derate insists upon the contrary, and claims the full benefit of the said pretended release or instrument, and threatens and intends, in case Plain- tiff shall proceed at law against h'un, touching the matters aforesaid, to set up the said pretended release or instrument in bar thereto, or to any action to be brought in that behalf, &:c. Inquiry. And in case the said B. shall pretend that the srid C. in her life-time executed any deed or other instrument in writing, whereby she acquitted, released, or discharged him the said B. from the payment of all or any sums or sum of money, due from him tiie said B. in respect of the several matters aforesaid, then, that he may set furlh the same in the very words and ligures thereof, and may produce and leave tiie «ame in the h;inds of his clerk in Court for the usual piuposes, and that the said Defendant may set tbrth and declare whether \ho said |)r(tended release or instrument was prepared by any person, and whom by name, employed by or on the beiialf of the said C, and whether the said C. did ever really execute or sign the same, and when or about what time and where she signed or executed the same; and whether she was not grossly, jor in some and wiiat manner imposed upon in relation thereto, and that the said Defendant may also set forth the names and places of abode, of all and every the persons who were then present, and whethei- they or any and which of them, or at any and what other time, set and sub- scribed their or his names or name as witnesses or witness thereto, in her presence, and may also set I'orth the places of abode of such wit- nesses or witness thereto, and by whom such writing was prepared and drawn, and particuiarly whether or not by liim the said Defendant, or by his orders and utc the validity thereof; and the Defendants insist, that the sum of £ in or by the said bond or obligation made payable to PlaintilV, was by the said Testator intended to be satisfied and discharged by the said legacy of £ bequeathed to her by said will, as well as by the said annuity of <£ per ann. therein devised to Plaintiff, and that Defendants having satisfied and paid such sum of £ , she is entitled to no fmllier benofit under said will, whereas Plaintifi" insists that she was entitled to both. And Deft-ndants insist that Plaintiff is not entitled to dower out of ihe real estates of the said Testator, but that the annuity of £ per annum, given and bequeathed to Plaintiff, was by the Testator intended to go in satisfaction of Plaintiff's dower, or thirds at common law, of the whole real estate of the said Testator, and that she ought to be put to her election, vvhether she will abide by said annuity of £ per annum, or insist on her dower of said real estate of said Testator, but that she ought not to be permitted to enjoy said annuity and her said dower at one and the same time. Plaintiff insists that said annuity of £ per annimi, is by no means an e(|uivalent in point of value to Plaintiff's dower of all the real estates oi the said Testator, and in the next place, because said annuity is merely and only charged on that part of the real estate of Testator which by his will is devised and given to DeA^ndant T. P. And Def'Mulants insist, that sup- posing that said Testator did make siirh will as stated in said Bill, yet said Testator did not thereby charge his real estate with ihe payment of his debts and legacies, but merely and only with the said two arniuities. Charge, that said Testator T. P, being the absolute proprietor of his real and personal estates, and haviiig by his said will directed and or- dered that all the legal debts, legacies, and funeral expenses should be in the first place paid and discharged, amounts to a chatge of all his said debts upon his said real estates ; and in case it should appear that the personal estate of Testator is sufficient to satisfy his debts and legacies, whirh Plaintiff in no sort admits, then, and in that case the real estate of baid lestalor, or so much thereof as shall be sufficient, ought to be sold and disposed of, and that out of the money to arise by such sale, Plaintiffs said Kgacy of £ ought to be paitl, and that such estate PRESENCES, CHARGES, ScC 43 ought to be sold and disposed of subject to said annuity of £ per annum, as well as to her dower oi thirds of the real estate of said Tes- tator ; and the Defendant T. P. ouuht to pay Flaintift' the arrears, as well as future growing payments of the said annuity of <;£' per annum, so fharc;ed on the real estate, and so devised to him. And Defendants ought likewise to be compelled to pay Plaintiff her dower or thirds at common law, out of and in respect of all the real estates of said Tes- tator, and that Plaintiff's title, as well as her dower as to the said an- nuity of £ per annum, ought to be establiihed and declared by the decree of the Cuurt. Charge in a BUI by Vendee against Vendor, for the spe- cif c Performance of an Agreement. That soon after the making and entering into the aforesaid contract, riai')li!T made, or caused to be made, sundry improvements and additions to, in, or upon the said premises, in confidence of the faithful perform- ance of the said agreement on the part of the said Defendant, and that he exhausted sundry sun)s of money thereon, to the amount of several hundred onuiids in the whole, and that such improvement and additions were ni;i'!e with tlse knowledge or privity of the said Defendants, who permiUed Plaintiff to go on and proceed therewith without making any objections, or intimating to Plaintiff his intention of refusing to abide by the said contracts, or to perform the same. Charge. And rlmrges, that Defendant never meant or intended to object, or thought of objecting to the said agreement, or to the perf()rman<'.e thereof on his part, until plaintiff had so made or begun such improve- ments and additions, and as an evidence thereof, &c. Pretence and Inquiry, ichere the Attorney- General is a Party, on Account of a Debt due to the Crown. Defendants pretend that the said Testator was in his life-time, and at the time of his death, greatly indebted on bond and otherwise, and |)ar- ticularly that a large sum of money was due and owing from him to Ills Majesty, in respect of the balance of the said Testator's accounts as Receiver of the land tax and otherwise, and his Majesty's Attorney-Ge- neral, on behalf of his Majesty, claims a large debt to be owing to his Majesty on such account, but refus^es to discover the particulars of such debt, &c. 44 PRETENCES, CHARGES, &:c. Inquinj. Tliat Iiis Majesty's Altornpv-Gcnrial may answer anrl ?Pt forth whe- ther any and wliat sum of nionry is now remaining due to his Majesty^ >i) respect of any and what debt or del)ts wliith was or were, in any and vhat manner, and on what account owing to his Majesty from the said Testator at the time of his death ; and whether the whole or any, and what part of such money was secured by any and what de«d or deeds^ vriling or writings, and where and by whom executed, and may set forth the debts and material contents thereof. Charge by Residuary Legatees against Executors, for sell- ing the lorong Stock, ichereby they diminished their Re- versionary Interest. And your Orator further charges, that a part of the personal estate of the said Testator consisted of Jniperial Annuities for years only, and other part thereof consisted of funds or stock of a permanent nature, and that the said Defendants the Executors sold out part of the perma- nent funds for the payments of debts and legacies, and have kept the whole of the said Imperial Annuities, wher.by they have increased the annual income of the said Defendant A. II. to the prejudice of the reversionary interest of your Orator in the residuary 'pstalt! of the said Testittor. Pretence, Charge, and Inquiry, as to ihr due Execution of a Will, in a BUI brought to eslaldish a IVilL But then he pretends that the said A. did not make such will in writ- ing, or however tiiat he was not of sound and disposing mind and me- mory at the time of making the same, or that he was imposed ujjon in the making thereof, and that therefore the same ought not to have any effect as his will, and consequently that neither of the said Plaintiffs hajh any ri^ht to th<- said premises, but that upon the «lealh of the said Testator the nies&uages, Sec. descended to hiiu the s^id liefendanl as his heir at law. Charge. The contrary, and that tliesaid A. ilid really make such last will and testament as albresaid, and that he was at the time of making the same PRETENCES, CHARGES, &C. 45 of sound and disposing mind, memory, and understanding, and tliat he was not in any manner imposed upon therein, or in relation thereto, and that the same was prepared by his direction of and from instructions given i)y him, and that the same was read over by him, or some person in his hearing, before or at tlie time of his executing the same, and that lie then well knew and understood the contents and meanin, and from whom, by sale of all or any, and what part ^N?f the principal money in all or any and which of such government se- cuilties, or in or towards discharge of the principal money due on all or any, and which of such private securities; and whether some and what PRETENCES, CHARGES, &C 5o sums or sum of money, which were or was part of the personal estate of the said Testator at the time of his death, and which arose there- froui, have or hath not been since, and when placed out at interest, in any and what public or private securities or security, and in whose name or names and at what rate of interest and what particular sum or sums in such public securities or security were or was purchased, with each of such suras of money, and the dates, parties' names, and all other material contents of all and every such private securities or security ; and whether the whole or any and what part of all or any and which of such sums hath over since the same were so respectively laid out for any and what times or time afterwards continued on such security or securities respec- tively, and what sums or sum of money have or hath been received, and when and by whom, and for whose use and from whom, by sale of any and what part of the principal money in all or any and which of such public securities, or in or towards discharge of the principal money due on all or every, and which of such private securities ; and that he may also set forth a f\ill, true, and just account of all and every sum and sums of money which have from time to lime since the death of the said Testator become due from the interest or dividends of or on or in respect of the personal estate of the said Testator, or the produce thereof, or any part thereof, and when and on what principal sum or security, the same and every particular thereof became due, and a full, true, and just account of all and every sum or sums of money which hath or have been received by or by the order or for the use of him the said Defendant, for or in respect of the interest or dividends of such personal estate, or the produce thei-eof, or any part thereof, and when and from whom and for the interest or di- vidends of what principal sums, and on what security, and when due, all and every such sums were respectively received. And that he may par- ticularly set forth whether he hath not at any and what time or times applied all or any and what part of the personal estate of the said Testator; to or for his own use. Inquiry after Incumbrances on real Estates. And that the said Defendant may also set forth whether there are or is any or what mortgage or mortgages, term or terms of years, incumbrance or incumbrances upon or affecting the said estates, or any and what part thereof, and when and by whom and to whom, and by what deeds or writings or otherwise, and how and for what considerations, and for what sums the same was or were made, and in whom the same are or is now vested, and for whose benefit, and what sum or sums of money is or are now due thereon, and to whom, and where all and every such per- sons live ; and may set forth what are become of the title deeds of the said estatei?. 64 PRETENCES, CHARGES, &C. Inquiry after Persons entitled to any legal or equitable Interest in Lands. And that he may also set Ibrth the names and places of abode of all and every the person and persons in whom any legal or equitable estate, right, titleorinterest, charge or incumbrance, to, in, or upon the said pre- mises in possesi^ion, reversion, or reversions is vested, and the particulars of such estate, right, title or interest, charge or incumbrance, and how and in what manner the same became so vested in such person or persons, and under what deed or deeds, writing or writings. Inquiry after real Estate. And that the said confederate may set forth whether the said R. was not at the time of his death, seized or entitled in fee-simple, of or to some and what real estate, and that they may set forth a full, true, and just rental and particular thereof, and where the same and every part thereof is situate, and the yearly value of each particular thereof, and in whose tenure and occupation the same and every part thereof is, and under what yearly or other rent or rents, and whether they the said confederate, or some or one and which of them are or is not, and lor some time, and how long time past have or hath been in possession or receipt of the rents and profits thereof, or of some and what part thereof, and who by name now are or is, and for how long time have or hath been in possession and receipt of the rents and profits thereof, and by what right or title, and for whose use. And that the said confederates may set forth a full, true and particular account of all and every sum and sums of money which hath and have been received by them or either of them, or any other per- son or persons by their or either of their order, or for their or either of their use, for or in respect of the rents and profits of the said estate, or any part thereof which have become due since the death of the said R. and when and by whom and for whose use, and from whom and for what rent and of what part of the said estates, and when due, all and every >uch sums were respectively received. Inquiry after Fines and other easual Profits of Manors. And that the said Defendants may resptale or tenement kept the said messuage or tenement, and all the said buiidings, &c. in good repair and condition, orv/'e'i • some and whai pai ticuhiis are not now in some and what degree out »f repair, or in bad repair, aivd 56 rUETENCES, CHARtJES, ScC. parliciilurly whether or not in some and what respect or degree in a worse state of repair than the same respectively were at the time when he the said Defendant entered thereon, and how long time the same have been so, and how much, as near as lie can compute and form a belief, it would cost to put the same in good repair and condition, and particularly into as good repair and condition as the same were in at the time of his the said Defendant's entering thereon; and whether he hath constantly, since he hath been in possession of the said estiate or tenement, used and cultivated the whole of the lands whereof the same consist, in a proper and careful manner, and in a good course of husbandry, according to the method used in the neighbourhood thereof, and the terms and conditions of the said lease, or whether he hath not and how often used or cultivated such lands or any and what part thereof, in some and what manner, con- trary to and difl'ercnt from such method, and the terms and conditions of the said lease, and more to tlie prejudice of the said lands, and parti- cularly whether he hath not, and how often, and when, ploughed, or caused to be ploughed up, some and what parts of the said lands whick by the terms of the said lease he was not at liberty to plough, and may set forth all the particulars of the said lands which by the terms of the said lease he was not at liberty to plough ; and the names, quantity, and other descriptions thereof, and whether he hath not, and how often, and when, and in what manner neglected to manure and improve all or some and what parts of such lands, according to the method used in the neighbourliood thereof, and according to the terms and conditions in the said lease ; and whether all, or some, and what parts of such lands are not by all, or some, and which o( such acts of mismanagement or neglect, or by some and what other means, in some and what respect or degree impoverished, or rendered or become in a worse condition than when he the said Defendant entered thereon ; and what time, or how much money, as near as he can compute the same, it will require to put such lands into as good plight and condition as the same were in at thr lime when he entered thereon. Prayer to a Bill of Foreclosure. 'J'liat an account may be taken of the several sums of money now re- maining due and ov/ing unto Plaintifls respectively, for principal or in- terest on their said several and respective mortgages and securities ; and (hat said dfft'r)dants, or some or one of them, may be decreed to pay unto Plaintiffs respectively, whatever shall be found due and owing unto them on the taking of said account respectively, together with Plaintifls' ( osts, by a iliort lime, to be prefixed by this honorable Court, or in de- PRETENCES, CHARGES, &C* 57 fault thereof, that said Defendants and all persons claiming under tliem, and each and every of them, may be absolutely barred and foreclosed of and from all right and equity of redemption to and in said mortgaged estate and premises, and every part thereof, Plaintifls offering, upon pay- ment of the monies due to them as aforesaid, together with their said costs, to join and concur in all necessary acts and deeds for conveying said mortgaged manors, hereditaments, and premises, in such manner as tliis Court shall be pleased to direct if it should be necessary for them so to do. And for further relief. Conclusion to a Supplemental Bill and Prayer. That the time limited in the aforesaid indenture or deed of covenants being elapsed^ and the agreement and engagement thereby made not being performed, Plaintiffs are now entitled to have the benefit of said suit and proceedings therein, and to prosecute and carry on the same against said Defendants, iu the same manner as they would have done in case said last mentioned indenture or deed of covenant had not been made, and to have the benefit thereof against said W. II. P. and T. W. assignees of said bankrupt ; and that said Defendants ought to answer Plaintiffs' said original and amended bill at the same time they answer this Plaintifi''s supplemental bill ; to the end, therefore, that Plaintiffs may have the benefit of said suit and proceedings therein against said Defendants, and may have the same relief against them as they would or might have had in case the said last mentioned deed or indenture had not been made, and S. C. had not become a bankrupt ; and in case de- fault shall be made in payment of said prini'ipal sums due and owing to Plaintiff's respectively, on their said several and respective securities in said Original bill stated, with lyterest for the same, then that said De- fendant S. C. and his heii-s, a>'.d also his said assignees, and all claiming under them, may be debarred and foreclosed of and from all right aad equity of redemption of, in, and to said copyhold premises comprised in said indenture or deed$ of covenant. And for further relief o8 PRETENCES, CHAUGES, iLc Prayer to a Bill filed by Partners after the Dissolution, against the present Partners, to have the Stock, Pre- mises, and Effects, sold for Payment of old Debts, and an Injunction to restrain them from alienating the said Concerns. And thai an account may be taken of all and every the debts and de- mands which were due from your Orators and the said P. J. B. in their copartnership firm of or in respect thereof, at the time of executing the said indenture of the day of and wliich have not been paid and satisfied by the said P. J. 13. or the said other Defendants ; and that the said several Defendants may be dechjred to be answerable for the amount of what shall be found due on such account; and that it may also be declared that your Orators have a lien to the amount of what shall be found due on such account upo!i the coj^artnership stock, premises, debts, and effects, which were assigned by your Orators to the said P. J. B. in consideration of his engagement to exonerate your Orators from the payment of such debts ; and that, if necessary, the said copartner- ship stock, premises, and eflects, may be sold and applied in satisfaction of such debts, under the decree of this honorable Court, and that all proper directions may be given in that behalf; and that the said De- fendants may in the mean time be rcstained by the injunction of this honorable Court from alienating the said copartnership stock, premises, and effects ; and that the said covenant in the said indenture of the day of whereby your Orators are restrained from engaging in or carrying on any part or branch of making or manufacturing iron under any modification whatsoever, or any articles or utensils made of iron, within forty statute miles of may be reformed, ac- cording to tiie intent and agreement of the partners respecting the same as aforesaid. And for further relief. J. L. Prayer to a Bill filed by Heir at Law against Devisee, to recover Possession of Estates. And that the saiil Defendants may answer the premises ; and that they may produce and leave in t!ie liar.ds of tlieir clerk in Court, or otherwise as this honorable Court shall direct, all deeds, wills, and other writings, in their custody or power, or in tli<' custody or power of any other person or persons for their uj;e, relati:>tr to the estate of vour Orator or his ances- tors in the said messuage and lands ; and that your Orator or his agrnts PRETENCES, CHARGES, &C. 59 may be at liberty to inspect the same and take copies thereof, in order that your Orator may be enabled to pursue such remedy at law for the recovery thereof as he shall be advised. And for further relief, &c. Interrogatory and Prayer in a Bill against Assignees , fur an Account of separate Estate ff Bankrupt. And that the said confederates may set forth a full, true, and just account and particular of the separate estate and efl'ects of the said C. S. which have been sold or disposed of or possessed or received by them or either of them or by any otiier person or persons by their or either of their order, or for their or either of their use, and of the produce thereof, and what part thereof now remains in their hands undisposed of. Prayer. And that the said Defendants may answer the premises, and that an account may be taken of the separate estate and efiects of the said C. S. which have been possessed and received by the said M. M. &c. (the assignees) or either and which of them as such assignees as aforesaid; and also an account of the separate debts of the said C. S. which were due and owing from him at the time of the bank- ruptcies aforesaid, and that an account may also be taken of the partnership debts which were due and owing from the said C. S. and T. S at the time of fheir bankruptcy aforesaid, and which have been proved under the commission issued against them as aforesaid j and also of the partnership debts which were due and owing from the said C. S. &:c. at the time of their bankruptcy aforesaid, and which have been proved under the said commission issued against them ; and that the separate estate and efTects of the said C. S. pos- sessed and received by the said Defendant, which shall remain after payment of his separate debts, may be apphed rateahly and pro- portionably between and in satisfaction of the partnership creditors of the said C. S. and T. S. and partnership creditors of the said C. S. &c. and that for those purposej all proper directions may b*; given. And for further relief. Prayer to a Bill of Partition. And that a fair partition may be made of the said premises and of the lands thereto belonging, into three equal parts, and that a commission of partition may issue for that purpose, and that the particulars thereof which shall be allotted to your Oratrix may be duly conveyed to the use ^ PRE^E^'CES, CIIARGEy, &(\ of her and her heirs for ever, free from incumbrances, i^:c. bj the said B. and that all proper parties may join in sntli conveyance, Plaintili' humbly offering tbereiipon to convey all her right and intrresf in the other particulars as this honorable Court shall direct, and that the title deeds and writings relating thereto mav be brought into this honorable Court, or left in the hands of some indifferent person for thr said d. F. and your Oratrix ; and that such of them as shall appear soltly to relate to .such particulars of the said estate or premises as .shall be allotted to your Oratrix may bg delivered to lier, and that the remainder of the said deeds or writings, or such of them as shall appear to relate jointly or equally to all the said premises, may be preserved and taken care of by this honorable Court, for the nnitual benefit and advantage of your Oratrix and the said Defendants ; uiullhat your Orator may be at libert}' to take copies thereof, and that possession mny be delivered to her of the parti- culars which shall be so allotted to her, ^vc. ApjTilcation and Prayer to a Bill of Partition. Applied, &G. to join with Plaintifi' in making a fair partition and division of the said estate among them or su<'h of them as are really in- terested therein, according to their respective shares therein, so that each party maj' enjoy his and their own part in severalty ; and the said parties, or some of them, having in their, his, or her custody or power, several deeds and writirigs rdating to the said estate, Plaintiff hath in like manner requested them to deposit the same in the hands of some indif- ferent person, so that the same may be preserved for the benefit of all persons interested tjicreiq. Prayer. And th ait the parts and shares jointly belonging to Plainti/F and all other j)ersons hereinbefore naiiied, of and in the said estate may be settled and ascertained, and that a fair partition and division maybe made of all such estate between Plaintifi' and all other persons who shall a))pear to be interested therein, and that the particular? therepf, which shall be allotted to Plaintifi" as his share thereof, i/lfty be thenrjpforth held and enjoyed hy l"'" and his heirs for ever, fift' (iof)} all incumbrances, and that nli proper parties ma}- join in such c<»iiveya)u:e; and that such rent ^nd profits may be divided and paid befjveen Plaintiff and all such other persons., according to such their respective rights and interests tlierein, and that all the title- deeds anrl writings relating to such estates, or to any of them, may be brought into this honorable Court, and there deposited, for the benefit of Plaintilf and tiie other persons interested therein, and PRETENCES, CHARGES, ScC 61 that after the making of such partition and division, such of the said title-deeds and writings as shall appear to relate solely to any parti- cular thereof which shall be allotted to any one person may be de- livered to such person, and that the rest of such title-deeds and writings may be kept in the hands of one of the Masters of this honorable Court, for safe custody as aforesaid, Sec. Application mid Prayer for a Partition. Plaintiff applied to Pof'Midants to join with him in making a fair parti- ;ion and division of tlie estate among them or such of them as were really interested therein, and according to their respective shares therein, so t'^at each party might enjoy his and their own part in severalty ; and the said several parties, and some of them, iiaving in their, his, or her custody or power, several deeds and writings relating to such estates, Plaintiffs hath in like manner requested them to deposit the same in the hands of some indifferent person, so that the same might be preserved for the benefit of all parties interested therein. Praijer. That the parts and shares justly belonging to Plaintiff and all other the parties hereinbefore named of and in the said estates may be settled and ascertained, and that a fair partition and division may be made between Plaintiff and all other persons who shall appear to be interested therein, and that the particulars thereof may be from thenceforth held and enjoyed by him and his heirs in severalty, and that the same may be conveyed to him and his heirs for ever free ^rom all incumbrances, and that all proper parties may join in such conveyances, and tliat possession of such particulars may be deli- vered to Plaintiff; and that in the meantime one or more proper person or persons may be appointed to receive the rents and profit? of such estates for the benefit of Plaintiff and all other persons in- terested, and that such rents and profits may be divided and paid between Plaintiff and all such other persons, according to their re- spective rights and interests therein ; and that all the title-deeds and writings relating to such estates, or to any of them, may be brought into this honorable Court and there deposited, for the bene- fit of Plaintiff and the other persons interested therein ; and that after the making of such partition and division, such of the said title-deeds and writings as appear to relate solely to any particular thereof which shall be allotted to any one person may be delivered to such person, 62 PRETENCES, CHARGES, &C. and that the rest of the title-deeds and writings may be kept in the hands of one of the Masters of this honorable Court, for safe cus- tody as aforesaid. And further relief. Prayer in a Bill against Trustees for selling Part of the Trust Fund, and converting it to their own Use ; and Injunction to restrain the Bank from permitting the other Part to be transferred. And that the said Defendants R. S. and W L. may b^ removed from being Trustees under the said indenture of settlement and that they may be decreed by this honorable Court to replace all such parts of the said stock as hath at any time been sold out or transferred by them, and that they may be restrained by the injunction of this honorable Court from selling or transferring any part of the said Residue of the £ 3 per cent Consolidated Bank Annuities, now standing in their names ; and that the said Defendants, the Governor and Company of the Bank of England, may in like manner be restrained from permitting the said £ 3 per cent. Consolidated Bank Annuities, the residue of the said £ like Annuities, to be transferred without the order and direction of this honorable Court ; and that new Trustees may be appointed by and under the direction of this honorable Court, in the room of the said Defendants R. S. and W. L. and that they may be directed to transfer the said sum o( £ 3 per cent Consolidated Bank Annuities to such new Trustees, or as this honorable Court shall direct, and that the divi- dends thereof may be paid to the said I. P. or his assigns during his life, and after his death, according to the trusts of the said settlement, and for other relief, «fec. W. C. Pi-a?/ Stihposna and Injunction against R. S. W. L. and the Governor and Company of the Bank of England, and Sub- posna against I, P. Prayer to a Bill fled by Persons entitled to have Trust Stock divided among them, and Assets of the Settler applied to make good the Sum ivhich ought to have been settled. And that all the Defendants may severally set forth what right and interest they respectively have or claim in and to the said capital sum of PRETENCES, CHARGES, &C. 63 £ Reduced Bank Annuities, and said sura of £ in such Bank Stock as aforesaid, and the aforesaid sum of £ so due from Testator T. B. or his estates aforesaid, or any of them, or any part or parts thereof, or of any of them, or of the interest and divi- dends thereof respectively, or of any of them which have accrued due respectively since the death of said A. T. M. and how they severally and respectively derive and make out the same, and Prayer, That the rights and interests of Plaintiffs and Defendants to and in the said several capital and principal suras of £ and £ in such Bank Annuities and Bank Stock as aforesaid, and the interest and dividends of the same, accrued since the death of the said A. T. B. or which may accrue due thereon respectively, and to and in the said sum of £ so due from the estate of the said Testator T. B. the elder as aforesaid, and the interest due thereon tince the death of the said A. T, B. and which shall become due thereon may be ascertained and declared by this Court ; and that the aforesaid sum of ^ may be decreed to be paid out o( the personal estate and effects of the said Testator T. B. the elder, which were possessed or received by or by the order or for the use of the said A. T. B. deceased, his Executrix, and that the said Defendants R. N. the elder, T. N. and A. G. may admit assets of the said Testator T. B. the elder, which came to the hands or use of the said A. T. B. in their life time, sufficient to answer and satisfy the aforesaid demand thereon, or that an account may be taken of all the personal estate and effects of or belonging to the said Testator T. B. the elder at the time of his death, which were so possessed or received by or by the order or for the use of the said A. T. B. in her hfe time, and which was not administered and dis- posed of by her ; and also of his the said Testator T. B.'s debts and funeral expenses now remaining unpaid, and that the amount of such personal estate and effects may be answered and satisfied out of the personal estate and effects of the said A. T. B. come to the hands or use of said Defendants her Executors, and that the same or a competent part thereof may be applied in or towards payment of such debts and funeral expenses, particularly the aforesaid debt or sum of £ so due and owing from the said Testator T. B. the elder or his estate as aforesaid. In a due course of admi- nistration ; and that said Defendants R. N. the elder, T. N. and A. G. may admit assets of the said A. T. B. come to their or some or one of tliejr hands or use, sufficient to answer the matters afore- 64 CONCLUSIONS AND PRAYERS. said, or that an account may be taken of all the personal estate and effects of said A. T. B. come to the hands or use of them the said last-named Defendants or any of them, and also of her debts and funeral expenses ; and that such last-mentioned personal estate and effects, or a competent part thereof, may be applied in or towards payment of said debts and funeral expenses of said A. T. B. parti- cularly the aforesaid demand thereon, in a due course of administra- tion ; and that such parts of said £ 3 per cent. Consolidated Bank Annuites, and £ Bank Stock, and also of said £ or the money which shall be received ©n account thereof, as are or may be also disposed of and appointed by the aforesaid will of the said Testator T. B. maybe transferred and paid to such person or persons as may be entitled to have the transfer and payment thei'eof made to them ; and that the residue of said sum of c£ in such Bank Stock as aforesaid, and of said £ may be also transferred and paid to the person or persons entitled thereto ; and that the residue of the aforesaid sum ei £ S per cent. Reduced Bank Annuities may be laid out in the purchase of lands, hereditaments, and premises in fee-simple, upon the trusts and pursuant to the directions contained in the aforesaid Act of Parliament, and that the rents and profits of such real estates, and the interest and dividends of said sum of £ in such Bank Annuities as aforesaid, in the mean time and until such purchase may be decreed to be paid to such persons as may be entitled thereto, or that the said residue of the said last- mentioned Bank Annuities may be applied, distributed, and disposed of in such other manner as this honorable Court shall direct. And for further relief. Conclusion of a Bill for a Commission to examine Wit- nesses abroad. And your Orators further shew unto your Lordship, that inasmuch as the witnesses to the several transactions aforesaid reside in the said city of H. your Oi-ators are unable to proceed to trial of the said action against the said R. T. without a commission from this honorable Court, Ibr the examination of such witnesses, &c. And tliat your Orators may be at liberty to sue out one or more com- mission or commitisioas for the examination of their witnesses at A, B. or elsewhere in parts beyond the seas, touching the matters aforesaid j: and that your Orators may have the benefit of the testimony of such wit- nesses rerprctively in the said action so commenced by them as aforesaid. CONCLUSIONS AND PRAYERS. 65 or in any other action to be commenced by your Orators, on the said po- licy of assurance, may, &c. J.L. Another Prayer. And that a commission may issue for the examination of witnesses residing in parts beyond the seas, as to the several matters aforesaid, with all proper and usual directions in that behalf; and that your Orators may be at liberty to read and make use of the depositions of such n itnesses at law upon the trial of the said action so commenced as aforesaid, may, &c. Concluding Part of a Bill for a Settlement^ and to restrain Proceeding on a Bond which had been given as a Sem- rity by the Plaintiffs for the keeping certain Accounts. But how so it is, &c. And the said pretends that your Oratoi T. H. is indebted to the said Company in a large sum of money as the balance of his accounts with the said Company as such Treasurer as afore- said, but nevertheless they refuse to come to any account with your said Orators, and threaten and intend to proceed by action for the recovery of such pretended balance against your said Orator W, H. who, upon the appointment of your Orator T. H. to the office of Treasurer as aforesaid- entered into a bond to the said Company in the penal sum of £ conditioned for the due performance of the said office by the said T. H. and for his duly accounting in respect thereof; whereas your Orators charge that the apparent balance in favour of the said Company upon your Orator T. H.'s account as Treasurer is occasioned only by your said Orator's having debited himself with the amount of the balance made by the said Company on certain shares in the said Company, purchased bj' him, and which he was induced to purchase only by reason of the engage- ment of the said Company to leave in his hands as Treasurer from time to time, such stipulated sum as aforesaid : and that having suflered great loss as to the said shares by tlie breach of the said engagement as afore- said, he ought to be indenmificd therefrom by the said Company; and your Orators further charge, that even admitting the said apparent balance of your Orator T. H.'s account as Treasurer were really due from him, yet that a much larger sum is coming to your said Orator in respect of the several matters hereinbefore stated ; and so it would appear upon a fair account between the said Company and your said Orator, but which 10 (j6 CONCLUSIONS AND PRAYERS. account the said Company under various unjust pretences made and refuse. All which, &:c. To the end, &c. And that the said Defendants may answer the premises, and that an account may be taken of all matters, dealings, and transactions between your Orator T. H, and the said Defendants, and tliat tiie said Defen- dants may be decreed to pay to your said Orator what shall be found due to him upon such account, your said Orator being ready and willing and hereby offering to pay to the said Defendants whatever, if any thing, should on such account appear to be due to them ; and that in the mean time the said Defendants may be restrained by the injunction of this honorable Court from all proceedings al law against your Orators, or either of them, in respect of the matters aforesaid. And for further rehef. J. L. Conclusion of a Bill against Trustees, for converting Monies which stood in their Names, to their own Use, And your Orators further shew, that they have lately discovered, a? the truth is, that neither the said sum of £ 3 per cent. Con- soUdated Bank Annuities, nor any part thereof, is now standing in the names of the said W. W. F. W. W. W. and VV. C. or of any or cither of them, and that in fact the said Bank Annuities or any part thereof, was not standing in the names of the said Trustees or of any or either of them, at the time of the date of your Orator's said maVriage settlement, but that the whole of the monies arising from the sales of the said estates have been applied by the said Trustees to their own use ; and that the said sum of £ Bank Annuities, which is stated to have been pur- chased wilh the said sum of £ , was very soon after, or about the time of passing the said Act of Parliament, transferred or sold out by the said Trustees, who have applied the produce thereof to their own use ; and your Orators being the only persons interested in the said estates, funds, and premises, after the death of the said I. P. have caused application to be made to the said W. C. F. W. and W. W. and the Executors of the said W. W. for an account of the produce of the said estates and of the trust funds, in order that the same may be properly secured, and your Orators well hoped tliat such application would liave been complied with, as in justice and equity it ought to have been ; but now, &c. refuse to give your Orators any account of their transactions relating to the said trust, and they refuse to discover and set forth when and by whom the said sum of £ hereinbrforr mentioned was first paid to the said Trustees or any or either of them, and wlien and by whom the same or any part thereof CONCLUSIONS AND PRAYERS. 67 was laid out in the purchase of the said sum of £ Bank Annuities, and when and by uliat means and for what purpose the same was transfer- red into the names of the said Trustees, and what has since become of the said sum of ^ Bank Annuities, and when and by whom and to whom, and for what sum of money or other consideration the same was transferred out of the names of the said Trustees ; and the said Defendants also refuse to discover and set forth a full, true, and particu- lar account of all the said estates and premises in tlie said Companies respectively, comprised in the said Act of Parliament, which have been sold since the passing of the said Act, and by whom and to whom and in what names the same have been sold, and for what prices and sums of money the same respectively have been sold, and to whom all such sums of money we;e paid, and wiiat persons gave or joined in giving receipts for the same, and how and in what manner all such sums of money have been applied, and who are or is now accountable for the same ; and whether the purchase monies or any part or parts thereof have or hath, and when, been laid out, on any and what Government Securities or other securities, and by whom and in whose names or name, and what hath since become of such securities ; and the said Defendants aUo refuse to state whether any and which of the said estates and premises still remain unsold; and the said Defendants sometimes pretend that the said Defen- dant W. C. alone hath acted in the said trust, and is accountable for the said trust monies, and that he hath received the said sum of j£ , and also all the monies arising from the sales of the said esfates and premises, and hath applied the same to his own use ; and that the said W. W. F. \V. and W. VV. respectively', never received any of the monies or joined in giving any receipts or acknowledgments for the said monies, or any part thereof, whereas your Orators charge the contrary of such pretences to be the truth, and that the said W. C. hath been enabled or permitted by the said W. W. F. W. and VV. W. to receive all the said monies, and to con- vert the same to his own use, and that he hath wasted the same, and iliat they all became responsible for the same ; and particularly your Uralors charge, that before or about the time of passing the said Act of Parliament the said sum of ^ 3 per cent. Consolidated Bank Annuities stood in the joint names of all the said Trustees, and was afterwards transferred out of their names into some othei- name or names; and the said Defen- dants W. C. F. W. and W. W. and the Executors of the said VV. W. ought to be compelled either to answer and pay all the said trust monies originally received by them or any of them as aforesaid, or to account for the produce of the trust funds in which the same were at any time invested, or to replace such trust monies as shall appear to be most for the advantage of the parties interested in such trust, and such parts of the said trust estates and premises comprised in tiie said Act of Parliament, 68 CONCLUSIONS AND PRAYERS.' as shall appear to remain unsold or ought to be sold under the directions of this Court, and new Trustees ought to be appointed under the afore- said settlement and Act of Parliament, in the room of such of the said Trustees as shall appear to have committed breaches of their said trusts j but the said I. P. and R. C. respectively, refuse to concur with your Orators in this suit, all which, &c. To the end therefore, 5:c. And that the said Defendants W. C. F. W. and W. W. and the Executors of the said W. W. deceased respectively, or such of them as this Court shall think fit, Diay be declared to be re>ponsible for all the said trust monies, or for the value or produce of such securities as the same have been invested in, or have been alleged to be invested in, as shall appear most for the benefit of the persons interested in the said trust funds ; and that the said Defendants B. II. and I. L. as representatives of the said W. W, deceased, may be decreed to answer and pay such monies accordingly, and that the same, when paid in, may be laid out and secured in Govern- ment Funds or Securities, for the benefit of the persons interested therein, under the direction of this honorable Court ; and that the said DeJendants W. C F. W. and W. W. respectively, may be discharged from the trusts pf the said indenture and Act of Parliament, and that new Trustees, if necessary, may be appointed in their stead, under the direction of this Court; and that all such of the said trust estates as remain unsold, may- be sold under the directions of this Court, and that the monies arising from such sales may be secured and applied according to the trusts of the said Act of Parliament ; and in case the said B. H. and I. L. shall pot admit assets of the said W. W.'s estate, to answer what the same ^hall be responsible for in this suit, then that all necessary accounts may be taken of the said W. W.'s personal estate, possessed by them respec- tively, and of the application thereof. And for further relief. II. S. 69 CHAPTER III. ORIGLN.VL BILLS. A BILL in Equity is similar to a petition, wherein the Plaintiff sets forth the circamstanccs of his case, praying relief, or discovery, &c. with process of subpoena against the defendant, to compel him to answer the charge of the bill. But in the case of a peer or peer(iss, or lord of Parlia- ment, the bill must pray the letter of the person holding the great seal, called a letter missive, requesting the De- fendant to appear and answer the bill, and the writ of subpoena, only in default of compliance with that request. And if the Attorney-General is made a Defendant as an officer of the crown, the bill must pray, instead of the writ of subpoena, that he, being attended with a copy, may appear and put in his answer. MIL 37 & 38. It is usual to add to the prayer of the bill a general prayer of that relief which the circumstances of the case may require. Indeed, it has been said, that a prayer of general relief, without a special prayer of the particular relief to which the Plaintiff thinks himself entitled, is suffi- cient, 2 Atk. 3. and the particular relief which the case requires may at the hearing be prayed at the bar. But this relief must be agreable to the case made by the bill, and not different from it. Mit. 39. As where a bill was brought for an annuity or rent-charge of £10 a year, left under a will, and the counsel for the Plaintiff prayed at the bar, that they may drop the demand of this annuity, and insisted upon the land itself out of which the annuity issues : 70 ORIGINAL BILLS. but the Lord Chancellor denied it, because it came within the above rule. 2 Atk. 141. A Bill must be true it substance, and plainly, yet suc- cinctly alleged, Avith all necessary circumstances, as time, place, manner, and other incidents. Wij. Pract. Reg. 57. Whatever is essential to the rights of the PlaintiiT, and is necessarily within his knowledge, ought to be alleged positively, and \\\\\\ precision ; b'.it the claims of tlie De- fendant may be stated in general terms : and if a matter essential to the determination of the Plaintiff's claims is charged to rest in the kno\\ ledge of the Defendant, or must of necessity be within his knowledge, and is consequently the subject of a part of the discovery souglit by the bill, a precise allegation is not required. Mit. 41. If a bill be exhibited wliere the Lord Chancellor is a Plaintiff to the suit, it must be directed to the King's most excellent Majesty, and the word " Majesty" must be used in the prayer and conclusion thereof, instead of " Lord- ship." A counsel is not to put his hand to a bill, (or any otiicr pleading,) unless it be drawn or perused by himself in the paper draft before it be engrossed, and counsel are to take care thai the same be not stuffed with repetitions of deeds, &c. in liecc verba, but that the substance of so much of them only as is pertinent, &c. and that in brief terms, without long needless traverses, or points not traversable, &c. Much less may any counsel insert therein matter merely criminal or scandalous, under penalty of good costs to be laid on the counsel, to be paid to the parties grieved, to be heard in Court before such counsel. Onl. Can. 93. A bill may pray relief against an injury suffered, or only seek the assistance of the Court to enable tlie Plaintiff to ORIGINAL BILLS. 71 defend himself against a possible future Injury or to support or defend a suit in a Court of ordinary jurisdiction. Ori- ginal bills have, therefore, been again divided into bills praying relief and bills not praying relief. — An original bill praying relief may be, 1. A bill praying the decree or order of the Court, touching some right claimed by the person against whom the bill is exhibited. — 2. A bill of interpleader, where the person exhibiting the bill claims no right in opposition to the rights claimed by the person against whom the bill is exhibited, but prays the decree of the Court touching the rights of those persons, for the safety of the person exhibiting the bill. — 3. A bill praying the writ of Certiorari, to remove a cause from an inferior court of equity. An original bill not praying relief may be — 1. A bill to perpetuate the testimony of witnesses. — 2. A bill for discovery of facts resting within the know- ledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his custody or power. Mit. p. 32, 33. Pursuing the noble author's foregoing arrangement, this chapter will contain a selection — 1st. of Original Bills praying relief, upon various and useful subjects ; Sndly^ Bills of interpleader ; 3dly, Certiorari Bills. Original Bills not praying relief will compose the next chapter. We have in the first bill referred to our first chapter, where the frame and words of course necessary to a bill are discussed and exemplified. But it will not be necessary to pursue this plan farther, as an attentive perusal of that chapter will fully inform the student where these words ought to be placed ; and it is also presumed that no person vvill attempt the office of a draftsman before he has ac- quired a competent know!edL';e of his profession. "72 ORIGINAL BILLS PRAYING RELIEF. BUI for the specific Performance of an Agreement. To the Right Honorable John Lord Eldon, Baron Eldon, of Eldon, in the county of Durham, Lord High Chancellor of Great Britain. Humbly complaining, sheweth unto your Lord^Iiip, your Orator, R. O. of in the county of , Esq. that your Orator now is and for some time before the year , was seised or entitled in fee-simple of or to the freehold messuages or tenements, with the lands and other appurtenances thereto belonging, situate in in the county of , and your Orator being so seised or entitled, and being desirous to make sale thereof, did some time before the of , in the year , employ and empower J. K. of in the said county of , gen- tleman, to agree on belialf of your Orator with any person or persons, at and for such price or prices as he should think, fit ; and accordingly the said J. K. treated with J. M. of S. in the said county of S. gentle- man, for sale of such messuages, tenements, and hereditaments, unto him the said J. M. ; and at length they came to an agreement for such pur- chase, and thereupon articles of agreement in writing, bearing date the day of , and made between the said J. K. on behalf of your Orator of the one part, and the said J. M. of the other part, were duly executed by the said J. K. and J. M. whereby the said J. K. in con- sideration of the Slim of ci^ , to be paid as therein and hereinafter mentioned, agreed that your Orator or his heirs should or would, on or before the day of then next, to the satisfaction of the said J. M, or of his heirs, and of his or their counsel, make out a good- title to the premises hereinafter mentioned, and by good and sufficient conveyances, surrenders, and assurances in the law, with reasonable covenants, sucb as the courjsel of the said J. M. should advise, convey and assure, or cause to be conveyed and assured, unto the said J. M. and his hefrs, as he or they should appoint, free from all incumbrances, (except a perpe- tual d:aiiiage-1ax charged upon the premises, or some part thereof,) and particularly a good estate of inheritance of, in, and to all that mes- suage or tenement, (hrrc recite the agreement) and in consideration thereof, the said J. J\I. did thereby covenant and agree with the said J. K. that he the said J. INI. would pay or cause to be paid, to your Orator, his heirs, executors, or administrators, the said sum of c£ , injmediately upon tiie executing of such conveyance as aforesaid; and it was tliereby mutually agreed that your Orator, or his heirs, should be at the expen-e oi making a good title to the said premises, and that the said J. .M. should be at the expense of the conveyances and assurances to be math- there of to him as aforesaid, and that the said J. M. should ha\e the rents und profits of the said premises from the said of ORIGINAL BILLS PRAYING RELIKF. 73 provided the purchase of the said premises should be completed on or before that day, but not otherwise, as in and by one part of the said articles of agreement, now in the custody of your Orator, and ready to be produced, (reference being thereto liad) will more fully appear. And your Orator further sheweth unto your Lordship, that in consequence of the said articles of agreement, and in oider to the performance thereof on the part of your Orator, who hath been ever since he Iieard thereof, which was shortly after the date thereof, willing to perform the same, an abstract of the title of the said estate was on your Orator's behalf, shortly after the date of the said articles of agreement, sent unto the at- torney concerned for the said J. M. for his perusal, together with all and most of the deeds mentioned in such abstract, for the inspection of such attorney, or of the counsel of the said J. M. and several ob- jections having been from time to time made to your Orator's title to the said estate, by the counsel or conveyancer before whom such abstract was laid, by or on behalf of the said J. M. all such objections were long since answered or cleared up to the satisfaction of such counsel or conveyancer, who long since, by writing under his hand, or otherwise, approved of your Orator's title to the said messuages and premises, wherefore the said J. M. ought long since to have paid to your Orator the sum of £ , on having a proper conveyance of the said messuages and premises according to the said articles of agreement executed by your Orator, and upon having possession of the said messuages and pre- fnises delivered unto him. And your Orator hath at several times since your Orator's title to the said messuage and premises was so approved, ill and by letters, and by your Orator's agent in a friendly manner ap- plied unto the said J. M. and informed him of your Orator's readiness to make and execute a proper conveyance of the said messuages and premises, on payment of the said sum of £ , and therefore re- quested the said J. M. to pay unto your Orator the said sum of £ , and your Orator well hoped that such his requests would have been complied with. But now so it is, may it please your Lordship, that the said J. M. combining (vide page 4. <5> 5.) how to injure and defraud your Orator in the premises, and how to defeat your Orator of the benefit of the said articles of agreement, he the said J. M. sometimes pretends that he did not execute any such or tlie like articles of agreement as aforesaid, or that your Orator cannot make out a good title to the mes- suages or tenements, lands and hereditaments, or not to all the parts thereof, or that your Orator hath not made out such title to the satis- faction of him, or his counsel, or conveyancer ; whereas your 0»ator charges the contrary of all such pretences to be true, but nevertheless under such and the like pretences as aforesaid, or some other equally un- just, the said J. M. refuses to perform the said articles of agreement or; his part. AU which (vide p. 5. rator and tlie said I. C. that he the said I. C. BILLS FOR SPECIFIC PERFORMANCE. 81 should have immediate possession of the said messuage, lands, and pre- mises, the said H. D. did accordingly, upon the signing of the said agree- ment, deliver unto the said I. C the keys belonging to the said premises, and the said I. C. or some person on his part and behalf, hath ever since been in possession of the said premises. And your, &:c. That your Orator hath repeatedly applied to the said I. C. and hath requested him specifically to perform the said agreement on his part and behalf. And your Orators well hoped, &c. And to color such his refusal, the said I. C. pretends, that by reason that the original lease has been lost or mislaid, that therefore your Orator cannot make a good title to the said messuage, lands, and premises, for the residue of the said term ; whereas your Orator charges, that the said E. H. upon being informed thereof, executed the counterpart of the same lease, and dehvered the same to your Orator, and is ready to confirm the said lease in any other manner that can reasonably be required. And your Orator further charges, that your Orator hath caused an under lease of the said premises to be pre- pared according to the agreement so made and signed as aforesaid, by the said Defendant, and hath caused the same to be tendered to the said Defendant ; and the said Defendant hath been requested, by or on the part of your Orator, to accept the said under lease, and to execute a coun- terpart thereo^j but the said defendant refuses so to do, and insists that he is entitled to an assignment of the original lease. And your Orator further charges, that the said Defendant is to be considered as in posses- sion of the said premises, from the date of the said agreement, and ought, from thence, to pay all rent and charges in respect of the said premises, and ougiit also to pay to your Orator interest on the said pre- mium of £ . All which, &c. To the end, &c. And that the said Defendant may answer the premises, (iisital prayer for specific •perfor- mance.^ praying that the said Defendant is chargeable with all rents and charges afiecting the said premises, since the date of the said agreement. And that the said Defendant may pay to your Orator interest on the said sum of £ J from the date thereof. And for further relief, &;c. J. L. Conclusion to a Bill for a specific Performance. Vendee objects to Title, Charge that he makes Difficulties to delay Completion, by reason of the Fall of Stocks. And your Orator sheweth, that, in the course of a fortnight, the said abstract was returned, with a request that further explanation might be given to your Orator-s title to seme parts of the said premisesj and that 12 ■"-v^f 82 BILLS FOU SPLCIFIC P£RFORMA>CE. such explanation was soon afterwards given. And your Orator shewetl), that he hall) since repeatedly applied to the said Defendant to complete his said purchase, according to the said articles of agreement : and your Orator well hoped, &c. Kutnow, &'c. absolutely refuses so to do. And to color such his refusal, the said Defendant hath made various oI)jec- tions to the title of your Orator to the said premises. Whereas your Orator charges, that such objections are frivolous and unfounded, and are made by the said Defendant only for the purpose of evading the per- formance of the said agreement, which, by reason of the fall of the price of stocks, occasioned by war, has become less advantageous to the said Defendant ; and the said Defendant hath lately commenced an action at law against your Orator, in his Majesty's Court of King's Bench, for the recovery of the said sum of £ , which was paid by him to your Orator, as a depysit on the execution of the said agreement ; and the said Defendant threatens and intends to proceed to execution, unless he be restrained by the injunction of this honorable Court. To the end, &c. Prayer to a Bill for the specific Performance of an Agreement^ on the Faith of which Plaintiff had paid a large Sum of Money, and had also expended consider- able Sums in Repairs and Alterations of the Premises, that if good Title could not be made, Plaintiff might be taken to be Mortgagee. Case. " T. II. by mticles, agreed to convey a messuage or tenement to Plain- tiff, for £ in fee, which messuage or tenement had, together witli other lands, been conveyed to J. A. and his heirs for £ , to the use of the said J. A. his executors, &c. for years, and subject thereto to the appointment of said J. II. and in default of appointment to the use of J. H. in fee ; and there was a covenant by said J. II. and wife in the mortgage deed, to levy a fine to the use thereof, which was levied accordingly. Plaintifl" was let into possession of premises in pursuance of the agreement, and laid out £ therein in repairs ; he paid the £ to J. A. part of the said £ , and J. H. paid the remainder and interest previous to the said mortgage to J. A. said messuage or tenement had been conveyed to E. H. and J. II. in trust for J. II. and I\I. his wife for their lives, remainder to their children as tenants in common ; of this settlement Plaintiff had no notice. The Bill was brought by Plaintiff for performance of the agreement." BILLS FOR SPECIFIC PERFORMANCE. 83 Prayer. That the said agreement, bearing date, &c. entered into by the said T. H. with the Plaintiff as aforesaid, may be performed, if the said T. H. can make a good title to the said messuage and premises ; Plaintiff being willing to perform the same on his part, and that in such case the said T. H. may be decreed to make and execute, and procure to be made and executed, proper conveyances of the said messuage and premises to Plaintiff, free from incumbrances, pur- suant to his said agreement. And in case the said T. II. shall not be able to make a good title to the said messuage and premises, then that an account may be taken of what is due to Plaintiff for the aforesaid sum oi £ so paid by Plaintiff to the said J. A. as aforesaid, and interest for the same , and of all sums of money paid, laid out, and expended by Plaintiff, in repairing and altering the said messuage and premises, and making the same suitable and conve- nient for Plaintiff's business as aforesaid, and that the said T. H. may be decreed to pay to Plaintiff, what shall appear to be due to him on the taking of the said accounts. And in case it shall appear that the said T. H. is unable to pay the said sum of £ and interest, so paid by Plaintiff to the said J. A. as aforesaid, then that the said T. H. may be decreed to pay Plaintiff what shall appear to be due to Plaintiff for the money expended by Plaintiff on the said messuage and pren)ises, and that the said J. A. and all proper parties may be decreed to assign to Plaintiff the said mortgage, bearing date, &c. so made by the said T. H. to the said J. A. as aforesaid, as of the rest oi tlie estates comprized in the said mort- gage. And then that the said T. II. and M. his wife, saidG. H. and I. H. may be decreed to pay to Plaintiff what shall appear to be due for principal and interest, together with Plaintiff's costs of this suit, by a time to be appointed by this honorable Court for that pur- pose, and in default of, ttc. that the said T. H. and M. his wife may be barred from all equity of redemption in the premises com- prized in said mortgage or any part tliereof, and for further relief. J. M. Bill by first Vendee against Vendor, and an after Pur- chaser wilh Notice, charging him with Notice, also an Injunction from cutting Wood. Humbly complaining, sheweth unto your Lordship, your Orator, B. R. ofj &c. that G. K. of, &c. farmer, the Defendant hereinafter named, was, 8i BILLS FOU SPtCIFIC PEKt OKMANCi:. or pretended to be, in and before the month of seised ol" or well entitled (o a freehold estate of inheritance, consisting of, &c. in the and then in the occupation of the said C K. and that the said G. K. on or about the day of caused the said estate and premises to be put up to sale by puMic auction, Ijy a Mr. S. an auctioneer, in one lot; and your Orator sheweth, that your Orator em- ployed one A. B. to attend at the said sale as a bidder on behalf of your Orator, and that the said A. B. became and was declared to be the best bidder and purchaser of the said estate, at or for the price or sura of £ and, Sec. that by the 4th article of the printed conditions of the said sale, it was expressed, that the purchaser should immediately after the sale, pay into the hands of the proprietor's attorney, a df-posit of £ per cent, in part of the purchase-money, and sign an agreement for payment of the remainder on or before the of next, and now past. And that by the 5th of the said conditions of sale it was expressed, that a good title should be made to the said premises at the vendor's expense, whose attorney would make out the necessary conveyances which were to be approved of by the purchaser's attorney on or before the day of last ; such purchaser paying towards such conveyances, the sum of ^ . And your Orator sheweth, that the said A. B. not being prepared to pay the whole of the deposit, according to the said conditions of sale, the said G. K. consented to accept the sum of £ in part thereof and to wait for the remainder, and thereupon an agreement was written at the foot of one of the printed particulars, and signed by the said De- fendant G. K. and the said A. B. in the words and figures, or to the purport and effect following, (that is to say, which agreement ratified the purchase by both parties, and stated the payment of the £ and a condi- tion to pay the remainder. And your Orator sheweth that the said A. B. afterwards on the day , signed a memorandum at the foot of the agreement, to the purport and effect following, that is to say : " I, the before-mentioned A. B. do hereby acknowledge that I have purchased the before-mentioned estate, by the order and for the use of B. R. of , as in, and. Sec." And your Orator, &:c. that shortly after- wards the said A. B. by the direction of your Orator, tendered or offered to pay to .1. F. of who acted as the attorney of the said G. K. in the said sale, the sum of £ in full for the deposit-money in the said purchase, and the said J. F. thereupon desired the said A. B. to pay the same into Mr. L.'s bank until he procured a j)roper receipt for it, and the said A. B. accordingly paid the said sum of £ into Mr. L.'s bank on the day of the said mondi of , where it has ever fc'ince remained. And your, «^'c. that the abstract of the title to the said premises not having been delivered to your Orator, or to any person on his part, your Orator on the day of , caused a tender BILLS FOR SPECIFIC PERFORMANCE. 85 to be made of the said sum of jC to the said Defendant G. K. and also to the said I. P. by a Mr. G. who at the same time served each of them with a notice in writing in the words and figures, or to the efiect following, that is to say, " Sir, I do, &rc. (tendering the remainder of the deposit- money, and desiring to fulfil the contract, and a caution not to cut timber, or c(iminit waste,) as in and by, &;c." And your Orator shcweth, that the said 'Mr. F. the attorney of the said Defendant, upon being served with the said notice, signed an acknowledgment in the words and figures, or to the effect following, that is to say, (acknowledging the receipt of the depo- sit money) as in and by the said notice and acknowledgment, which, or one of which is now in the custody or power of the said Defendant, when produced, will appear. And your, &rc. that the said J. F. sent an ab- stract of the title of the said Defendant to the said premises to Mr. E. the solicitor of your Orator, accompanied with a letter, written by Mr. B. tlie clerk of the said I. P. and bearing date the day of , which was in the words or to the effect following, that is to say, (request- ing the abstract and draft conveyance to be returned as soon as possible, to complete the business.) And your Orator sheweth, that on the day of the said month of , the said Mr. E. sent an answer to the said ■ I. F. in the words or to the effect following, (that is to say,) acknowledging the receipt of last letter, and stating that it should be effected as quick as possible and warning Defendant from committing waste. [And your, &c. that many queries were made upon the .abstract by the counsel before whom the same was laid, occasioned by former inaccuracies and miscon- ceptions relative to the assignments of various outstanding terms affecting the said premises ; and it also appeared by the said abstract that many of the title-deeds of the said premises had not been entered with the register of the Bedford level, as by law they are required to be ; said premises being adventure land, and part of the said level. And your Orator sheweth, that some lime was therefore necessarily consumed in correspondence, between the solicitors of your Orator and the said G. K. as to these points,, and on the day of , a meeting was had between the said G. K. and your Orator, and their respective solicitors, when it was ver- bally agreed between your Orator and the said G. K. that as there was no hope that the corporation of the Bedford level would obtain an act of Par- liament to supply the defect of registration, which was supposed to exist to a great extent, the time for completing your Orator's purchase should be enlarged until the day of , but if the difficulties in the title of the said G. K. should be removed before that time, then your Orator should sooner complete his purchase, and the said G. K. should in the meantime manage the farm according to an agreement to be en- tered into for that purpose. And your, &c. that in the course of conver- sation at the said meeting, your Orator learnt, that the aforesaid abstract 86 BILLS FOR SPECIFIC PERFORA^ANCfi. which had been delivered to your Orator's solicitor had not been mrfde out and examined by the said Mr. F. but had been received by him from Messrs. M. and S. who were solicitors to a Mr. R. to whom the said pre- mises were in mortgage. And your Orator sheweth, that after Mr. E. on the part of your Orator, had prepared the draft of an instru- ment in writing, for carrying into effect the verbal agreement made at the aforesaid meeting, the said Mr. E. received a letter written by A. B. the clerk of the said Mr. F. and bearing date the day of , in the words, or to the effect following, that is to say, I saw Mr. S. Szc. (stat- ing the defect of the title, and writing for a copy of case and opinion to send Mr. S.) And your Orator sheweth, that t!ie said Mr. E. according- ly sent, by the return of post, a copy of the case and opinion required, and on the day of , the said Mr. E. received another letter from the said A. B. in the words, or to the effect following, (that is to say,) " K. and R. on the other side, &c.-' (to know if Plaintiff would accept upon title offered, if not they had another purchaser;) and your Orator sheweth that the copy of Mr. M.'s letter contained in the said last mentioned letter from the said A. B. was in the words, or to the effect following, (that is to say,) " I am, &c. (knowing when the money would be paid, and determirtation to proceed in equity and ejectment if not paid.) And your, &c. that upon the receipt of the said last-mentioned let- ter, the said Mr. E. applied to the said Messrs. M. and S. for permission to compare the abstract of the title with the title-deeds, and upon such comparison it appeared that the person who had prepared the abstract had omitted the note of registry to many of the deeds, and that there were also several other omissions and misrecitals in the abstract, the correc- tion of which removed some of the other doubts that had arisen ; and your Orator sheweth that the said Mr. E. caused the said amended ab- stract to be laid immediately before counsel, and although it still appeared that two or three deeds were unregistered, and that some difficulty and expense would be occasioned in getting in the outstanding terms, and in rectifying the errors that had been made in former as^ignments of them, yet, in order to end the business your Orator determined to accept the title as it stood, and to take upon himself the expense of getting in the outstanding terras ; and thereupon on the day of the said Mr. E. by the instruction of your Orator, wrote a letter to the said Mr. F. in the words and figures, or to the purport and effect following, that is to say, " I am happy," &c. (stating he was ready to complete the purchase as the title stood.) And your, Arc. that on the day of the same •month of , the said Mr. E. sent the draft of the proposed conveyance to the said Mr. F. accompanied with a letter in the words and figur^s,- or to the purport and effect following, that is to say, (stating that he serif the draft of conveyance, advised upon by counsel, instead of the one BILLS FOR SPECIFIC PERFORMANCE. 87 drawn by Defendant's attorney, requesting it to he engrossed immedi- ately, and stating that no delay is attributable to Plaintili'in the comple- tion of the business.) And your, &c. that the said Mr. E. not having re- ceived any answer to the said last mentioned letter, again wrote to the said JNIr. F. in the words, or to the eflect following, that is to say, (K.'s title, &c.) expressing Plaintiff's anxiety to complete the business.] And your, &c. that on the day of the said Mr. E. received a let- ter from the said A, B. the clerk of the said I. F. in the words or to the eflect following, that is to say, K. and B. &c. (stating that Defendant would not complete the contract, on the ground that the deposit was not paid at the time mentioned in the particulars of sale.) And your, Sec that he hath since, by himself and his agents, repeatedly applied to the said G. K. and hath requested him specifically to perform the agreement so made and entered into by him as aforesaid, with the said A. C, the agent of your Orator. And 3'our Orator well hoped the said G. K. would have complied with such your Orator's reasonable requests as in justice and equity he ought to have done. But now so it is, &c. And your Orator charges, that the said G. K. hath since contracted for the sale of the said premises to the. said T. P. at an advanced price, and hath actually conveyed the said premises, or entered into an agreement to convey the same to the said T. P. or to some ot!ier person or per- sons, by his order, or to his use, or in trust for him. And your Orator charges that the said T. P. at the time he entered into the said con- tract for the purchase of the said premises, or at the time of the con- veyance thereof to him, if the same have been conveyed to him, or at the time of the payment of the purchase-money for the same, if he hath actually paid such purchase-money, well knew, or had been informed, or had received some intimation, or had some reason to believe or suspect, that the said G. K. had entered into such agreement as aforesaid with the said A. B. or into some agreement with your Orator, or with some person on his behalf, for the sale of the said premises to your Orator. And the said T. P. or the agent employed by him in the said purchase or contract, had at some or one of the times aforesaid, some knowledge or intimation of the severed circumstances aforesaid, respect- ing the said premises, which had passed between your Orator and the said G. K. or their solicitors. And your Orator charges that the said I. F. was in tact the agent employed in the contract or sale by the said G. K. to the said T. P. as well on the part of the said G. K. as of the said T. P. And your Orator further charges, that if in fact the said T. P. has paid the purchase-money for the said premi:jes, or any part thereof, to the said G. K. the said T. P. has had or taken some indemnity from the said G. K. or some other person in respect of audi payment, or of such purchase. And your Orator further charges, that 38 BILLS FOR SPECIFIC FLRFORMANCK. after your Orator, by tlie said A. 13. had entered into such agreement with the said G. K. as aforesaid, and after tlie hay season in this year, your Orator %'erbally agreed with the said G. K. that the hay on the farm should be left by the said G. K. and taken by your Orator at an ap- praisement, but the said G. K. hath, nevertheless, sold and removed the said hay from the farm, to the great injury tliereof ; and the said G. K. hath, since his said agreement with the said A. B. plowghed up more than sixty acres of land, which, according to the usual course of hus- bandry, ought to have been laid down with grass. And the said G. K. hath also since cut down many timber and other trees upon the said premises, and hath committed and done other waste and injury thereto. And the said G. K. and also the said T. P. threaten and intend to cut down other trees on and from the said premises, and to commit other waste and injury thereto. All which actinj;s, &c. To the end, &c. Prayer. And that the said Defendants may answer the premises. And that the said Defendant G. K. may specifically perform the said agree- ment so made and entered into by him as aforesaid, with the said A. B. as the agent of your Orator, your Orator being ready and willing, and hereby ofl'ering specifically to perform the said agree- ment in all things on his part and behalf. And that the said G. K. may be decreed to make compensation to your Orator for the waste and otJier damage done by him to the said premises since the mak- ing of the said agreement. And that in the mean time the said Defendants G. K. and T. P. may be restrained by the order and injunction of this honorable Court, from cutting down any timber or other trees upon the said premises, or from committing any other waste thereon. And for further relief. J.L. Pray Svhpocna and Injunction a aforesaid by -he said I. H. not only in the letter hereinbefore stated to have been wiilien by the said 1. II. to the said Mr. S. but aho in olhrr Utters wiiiteu by the said L II. to the said P. U. Ckargc, ll'.at by reason of 'he cirrcn) tances hereinbefore >tated, the said Defendant wor.Id ! e 1 cund in equity to perform the said agreenvnt on hi- part, even if llie same had not been reduced into writing and -ij^ntd in manner hereinbefore mentioned. AH which, accour.t of the rents and profits of the said intestate's real estates, which have been possessed or received by them, or either of them, or by their, or either of their order, or to their, or either of their use. Charge that some pro- per person or persons ought to be appointed by this honorable Court, as the guardian and guardians of your Orator and Oratrix, with suitable al- lowance for their maintenance and education, and that some proper per- son ought also to be appointed, to receive the rents and profits of the real estates of the said intestate, and that the title deeds, eviden -es and writings relating thereto, ought to be brought into this honorable Court, for the benefit of your Orator R. T. Charge, that the said D C and J. his wife threaten and intend to sell and transfer the aforesaid sums oi £ 5 per cent. Bank Annuities, and £ , and to apply the produce thereof to their own use. And the Governor and C'om- pany of the IVank of England mean to permit the said Defendants to make such transfer. All w liich, &c. Prayer. And that the said Defendants may answer the premises. And that an account may be taken of the personal estate and eflects of the said intestate H. T. which have been received or possessed by the said Defendants D. C and J. C. or by any otiicr persons or person, by their f)r either of their order, or to their, or either of their use ; and also an account of the sairl intestate's funeral expenses and just debts, and that the said intestate's personal estate may be aj)])lied in the payment of his funeral expenses and just debts, in a due course of administration ; and that the clear residue thereof may be ascertained, and the shares of your Orators and Oratrix therein BILLS BY NEXT OF KIN. 95 iaid out and socured, in and by this honorable Court, for their be- nefit. And that an account may also be taken of the rents and profits of the said intestate's real estates, which have been received by the said FJefendants, or either of them, or by any other person or persons, by their, or either of their order, or to their, or either of their use; and that what shall be found due upon such account, may, in like manner, be paid to and secured by this honorable Court, for the benefit of your Orator R. T. And that some proper per- son or persons may be appointed the guardian or guardians of your Orators and Oratrix, with suitable allowance for their maintenance and education. And that some proper person may also be ap- pointed by this honorable Court, to receive the rents and profits of the said real estates of the said intestate. And that the said De- fendants D. C. and J. his wife, may be directed to deposit all the title-deeds, evidences and writings relating to the said real estates, in the hands of one of the masters of this honorable Court, and that in the mean time the said Defendants D. C. and J. C. may be re- strained by the injunction of this honorable Court from selling or transferring the said sums of <£ 5 per cent. Bank Annuities, and £ And that the said Governor and Company of the Bank of England, may in Uke manner be restrained from permitting sucii sale or transfer, and for further relief, &c. J. L. OBSERVATION. As soon as this bill i •■, filed, the Bank of England should be served with a subpoena with notice, that the object of the suit is to restrain the tranfer of the two sums of stock standing in the name of the intestate. Bill by next of Kin for Distributive Share against an Administrairix, and for an Injunction to prevent the Tranfer of Stock, under a Suggestion that she meant to leave the Country. Ilimibly complaining, shew unto your Lordship, your Orator and Ora- trix, S. M. of, &c. C. M. W. and A. L. VV. late A. M. that A. M. late of, &c. gentleman, was, in his life-time, and at the time of his death, pos- sessed of and well entitled to a considerable personal estate, consisting of monies in the funds, debts due to him, household goods, plate, linen, china, wearing apparel, and divers other effects,' of a considerable amount and value, and particularly was possessed of a sum of £ Bank 3 per cent. Annuities, standing in his name ai his death, in the books 96 BILLS BY Ni:Xl OF KIN". of the Governor and Company ot'tlie Bank of England. i\ncl your; iVt. That the said A. M. in and about the inontli of , de- parted this life intestate, anil without issue, leavinp; F. I\I. his wife, and one of the Defendants, and your Orator his brother, and your Oratrixes his sisters, and only next of kin of hhn surviving. And your, &c. That since the death of the said intectaie, the said F. M. his wife, hath ob- tained letters of aihninistration of the goods, chattels, rights, and credits, and personal estate and effects of the said intestate, to be granted to him by and out of the proper ecclesiastical court, and hath, by virtue thereof, possessed herself of the personal estate and effects of the said intestate, to a largo amount and value, and gre.tly more than sufllcient to pay and sa- tisfy his just d'.^bts and f^uieral expenses, excluj^ivo of the said sum of £ stock. And your, &c. That being entitled, as the brothers and sisters of the said intestate, to a distributive share of ids personal estate, your Orator and Oratrix have, by themselves and their agents, applied to the said F. >L and requested her to come to a full and true account with your Orator and Oratrix, for the personal estate and effects of the said intestate, and to pay them respectively one third part each of one moiety of the clear residue thereof, with which just and reasonable re- quests your Orator and Oratrixes well ho[)ed the said F. JM. would have •complied. Rut now so, &c. And the said Defendant pretends, that the personal estate and effects of the said A. i\L were small and inconside- rable, and not more than sufiicient to pay and satisfy his debts and fune- ral exjXMises, and that she hatii afiplied all such [)Crsonal estate and ef- fects in a due course of admini.-tralion. Whereas your Orator and Ora- trixes charge tiie contrary thereof to be the truth, and so it would appear, if the said Defendants would set forth, as they ought to do, a full and true account of all and every the personal estate and effects of the- said in- testate which have been possessed or received by the said Defendant, or by her or their order, or to her use, and of her a})plications thereof. And your, SzQ.. That the said F. M. hath declared to several persons that she means to obtain a transfer of the said sum of £ Bank 3 per cent. Annuities, and to sell and dispose oftlie same, and to withdraw herself to America with the produce thereof. And the said Defendants, the Oo- vernor and Company of the Dank of England, intend to permit her to make such transfer. All which, lS:c. And diat the said Defendants may answer the premises. Prayer. yVnd that an account may be taken by and under the direction of this honoralile Court of the personal estate and ellects of the said intestate, A. IM. possessed by or come to the hands of the Defen- dant, V. -M. Ids wife and aun)ini^tratiix,or to the hands of any other BILLS RY NEXT OF KIN. 97 person or persons by her order, or for lier use ; and also an account of the said intestate's debts and funeral expenses, and that the said intestate's personal estate may be applied in a due course of admi- nistration ; and tliat the clear residue thereof may be ascertained ; and that your Orator and Oratrixes may be paid one-third part each of one moiety of such clear residue 5 and that in the mean time, the said Defendant, F. M. may be restrained by the injunction of this honorable Court, from selling or disposing, or transferring of the said sum o( £ 3 per cent. Bank Annuities; and that the said Governor and Company of the Bank of England may be restrained from permitting such sale or transfer. And that your Orator and Oratrixes may have such further and other relief, &c, J.L. Pray Suhpana and Injunction against F. M. and the Governor and Company of the Bank of Ensland. Bill by One of the next of Kin against cm Admijiisfrator^ for an Account of Intcstate^s Estate and Disinbution. Pretence that Plaititiff^s Share was expended in his Education and Maintenance, That W. P. heretofore, of, frc. Plaintiff's late father, decreased, was, in his life-time, and at the lime of his death, possessed of, interested in, and well entitled unto a considerable personal estate, consisting of household goods, plate, linen, china, wearing apparel, and other stock on his farm, stacks of hay and corn, divers articles, implements and utensils of husbandry, ready money, monies out at interest upon bonds, mort- gages and other securities, and divers other goods and effects to a large amount and value, and greatly more than sut^icient to satisfy and pay all his just debts and funeral expenses, and being so possessed, interested in, and entitled to, he the said W. P. did in or about, &c. depart this life intestate and a widower, leaving T. P., W. P., E. P., M. P., and S. P., Defendants, hereinafter named, and Plaintiff, his six children only, next of kin, him surviving. That sotfte time after the death of said intestate, the said W. P., his son obtained letters of administration of his goods and chattels, rights and credits to be granted to him by and out of the proper Ecclesiastical Court, and did by virtue thereof possess himself of his personal estate, which were of the said intestate at the time of his death, to a large amount •in value, and more than sufficient to satisfy and pay all In? jnst debts and H 90 BILLS BY NEXT OF Kl.N. funeral expenses, with a large surjikis or residue, wliicli residue became distributable in equal shares and proportions between and amongst Plain- tirt'and the said other children of the said intestate, according to the sta- tute made respecting the distribution of intestate's personal estate, and IMaintifr, as one of sutli children, became entitled to one-sixth part or share of the said intestate's personal estate and effects. That Plaintiff being so entitled as aforesaid, hath applied, cVc. to his said brother, the said W, P. and re(|uested him to come to an account with Plaintiff for the personal estate and effects of tlieir said father, de- ceased and to pay to Plaintiff his sixth part or share of tlie clear residue thereof. And Plaintiff well hoped, Ac. Pretend, personalty, insufficient for payment of debts, &c. Charge contrary ; and that the said personal estate and effects was more than sutlicient to satisfy and pay all his funeral expenses and just debts, with a large overplus, and which Defendant W. P. will at times admit ; but, iSjo. Pretends that Plaintiff having lived with him fur many years after the death of the said intestate, he the said Defendant hath expended a con- siderable sum or sums of money on the maintenance and education of Plaintiff, and which he insists he ought to be allowed to set off against Plaintiff's said claim, and letain out of Plaintiff's said distributive share of the said Testator's personal estate. Charge, that by reason of the will hereinafter mentioned of her late aunt M. P. the Defendant is not entitled to have any sum or sums ex- pended on the maintenance and education of Plaintiff allowed to him out of Plaintiff's said distributive share of the said intestate's personal estate. Charge, that M. P. late of, ndant W. P. to Plaintiff. And for further i-elief. 100 SECT. HI. — BILLS FOK AND AGAINST EXKCUTOIIS. In the Exchequer. BUI by Husband of Legatees against an Executor for Payment of Legacy. Humbly complaining, sheuelh unto yonr Honors, jour Orators, Sec. that ^^^ S. late of , duly made and published liis last 'a ill and testa- ment in writing, bearing date on or about tlio and thereby, amongst other bequests, gave to his nephews and nieo^s, the children of his late sis' ter M. A. the sura of £ each, to be paid to them as they should respcc- livelj' attain the age of twenty-one years, and appointed E. T. F. of , the Defendant h^'reinalter named, the sole Executor of his sa!d will, as in and by, &c. And your Oratqr further sheweth unto your Honors, that the said E. T. F. soon after the death of the said Testator, duly proved the said will in the proper Ecclesiastical Court, and hath since possessed himself of the personal estate and effects of the said Testator, to an amount much more than sufficient for the payment of his just del)ts, funeral expenses, and legacies. And your Orator, &c, that after the death of the said Testator, your Orator intermarried with A. A. who was the niece of the said Testator, and one of the children of the said M. A. the sister of the said Testator, in the said will named, and by virtue of such inter- inarriage, your Orator, in right of his said wife, became entitled to demand and receive the aforesaid bequest of £ • And your Orator, dec. that your Orator's sai»l wife lived to attain her age of twenty-one years, and that she Iiath lately departed this life, and that neither your Orator nor his said wife received any part of the said legacy ; and your Orator sheweth, that having obtained letters of administration to his said wife, he hath repeatedly applied to the said E. T. F. for payment of the said legacy, and interest thereon, from the tinie of his said late wife attaining her age of twenty-one years, and your Orator well hoped tiiat such your Orator's reasonable requests would have been complied with, as in justice and equity they ought to have been. But now so it is, «Src. tlie said De- fendant refuses so to do, iScc. To the end therefore, c^. c. Prayer. And that an account may be taken of what is due ajid owing to your Orator for the principal and interest of the said legacy, and that the said Defendant may be decreed to pay the same to your Orator; and if the said Defendant shiiiliiot adniit assets of the said Testator BILLS FOR AND AGAINST LXECUTORS. 101 sufTieient to nnswer the same, then tl.at an account may be taken of the estate and effects of the said Testator which have been possessed or received by the said Defendant, or by any other person by his order or to his use, and that tlie same may be applied in a due course of administration. And for further relief, &r, J. L. OnSERVATlON. A husband may, if he thinks fit, give to his wife a disposing power over any property, and that it may therefore turn out in this case that the rUiintiff has no interest in this legacy, but at all events he has no right of suit without taking out administration to his wife, but it will be sufficient to sustain this bill if he obtain letters of administration any time before the hearing, and it will not be advisable to put himself to that expense until the Defendant has put in his answer, so that it may be seen whether it is worth his while to prosecute the suit. Bill by Executor to establish Will, and carry the Trusts into Execution. Humbly com^olaining, sheweth unto your Lordship your Orator, C. R. of , Executor of the will and codicils of M. S. late of , deceas- ed, and also a Trustee, Devisee, and Legatee named in the said will and eodicils, and the said M. S. at the several times of making her will and codicils hereinafter mentioned, and atthe time of her death, was seised or entitled in fee-simpleof or to divers messuages, lands, tenements, and here- ditaments of considerable yearly value, in the several counties of C. and D. and being so seised or entitled, and also possessed of considerable per- sonal estate, the said M. S. on or about the day of made her last will and testament in writing of that date, and which was duly signed and published by her, and attested in such manner as by law is required for devising real estates ; and thereby after giving divers pecuniary and specific legacies, and divers annuities, the said Testatrix gave and devised unto your Orator all, &c. (state substance of the will) ; and the said Tes- tatrix afterwards, on the day of made a codicil to her said will of that date, which was du-ly signed and published by her, and attested as by law is required for devising real estates. And thereby, after giving, &c. and in all other respects she thereby confirmed her said will, and all other codicils by her theretofore made, as by the said will and the said several codicils thereto, and the probate thereof, to which your Orator craves leave to refer, when produced will appear; and your Orator further sheweth unto your Lordship, that the said Testatrix M. S. departed this 102 BILLS FOK AND AGAINST EXECUTORS". lil'e on or about tlie day of without having revoked or altered her said will and codicils, save as such will is revoked or altered by the said codicils, and as some of the said codicils have been revoked or altered by some or one of such subsequent codicils; and the said Testatrix at her death left the said E. G. formerly E. S. and the said B. S. her cousins and co-heiresses at law, and your Orator being by the said codicil of the appointed sole Executor of the said Testatrix's will and codicils, hath since her death dnly proved the said will and codicils in the proper Ecclesiastical Court, and taken upon himself the execution thereof; and your Orator further sheweth unto your Lordship, that the said Testa- trix at the time of her death, was possessed of, interested in, and entitled unto a considerable personal estate and effects, and (amonst other things) she was entitled to an eighth share and interest in a certain copart- nership trade or business of a tin-blower and tin-melter, which was car- ried on Jjy the said Testatrix and certain other persons, at in C. aforesaid, in the firm of S. F. and Co, in which the said Testatrix had some share of the capital, and which was a profitable business, and by the articles of copartnership under which the said business was carried on, your Orator, as the said Testatrix's personal representative, is now entitled to be concerned in such share of the said business, for the benefit of the said Testatrix's estate ; and she was also possessed of or entitled to certain leasehold estates held by her for the remainder of certain long terms of years, determinable on lives, and your Orator further sheweth, that he hath possessed himself of some parts of the said Testatrix's per- fonal estate, and hath discharged her funeral expenses and some of her vlebts and legacies; and your Orator halh also, so far as he hath been al)le, entered into possession of the said Testatrix's estates, which she was seised of or entitled to at the times when she made her said will and codicils, and which consisted of, &c. being all together of the yearly va- lue of £ or thereabouts, besides the said mansion house, and besides the premises, wliicli by the said codicil, dated the day of are de- vised to lyour Orator for his own use and benefit; and your Orator is desirous of applying the said Testatrix's personal estate and efl'ects (not specifically bequeathed) in payment of the said Testatrix's funeral expen- ses and debts, and of her legacies and annuities boqucatiied by the said will and codicils, and of paying the remainder thereof out of the rents and profits of the said real estates, and of applying the whole of the said rents and profits according to the directions of the said will and codicils, as in justice and equity ought to be the case. Cut now so it is. Sec. in concert with each other, make various olijections to your Orator's applying the said personal estate and the rents and profits of the said real estate, according to the directions of the said will and codicils ; and the said J. G. and E. his wife, and B. S. sometimes alleged that neither the said will nor any of the said codicils were duly executed and attested, so BILLS FOR AND AGAINST EXECUTOR^. 103 as to pass real estates, and that the said Testatrix was not of s6iuid and disposing mind, memory, and understanding, at the several and respec- tive times when she executed the said will and codicils ; whereas your Orator charges the contrary of such pretences to be true, and that the said Testatrix's real estates were well devised by the said will and codicils in manner hereinbefore stated ; and the said Defendants J. G. and E. his wife, sometimes pretend, that by virtue of the said Testatrix's will they are entitled to the residue of the said Testatrix's personal estate, not specifi- cally beqneathec', including all her leasehold estates, afterpayment of all her funeral expenses and debts, and that the said personal estate is not subject to the payment of the several legacies and annuities given by the said Testatrix's said will and codicils, but is exempt therefrom, and tliat all the said legacies and annuities ought to be paid out of the rents and profits of the said Testatrix's real estates, whereas your Orator charges the con- trary of such pretences to be true, and that the said personal estate is applicable to the payment of all the said Testatrix's legacies and annuities, after satisfying all her funeral expenses and debts ; and the said J. G. and E. his wife are desirous that your Orator, as tlie personal representative of the said Testatrix, should, by means of the said Testatrix's share of the capital employed in the said trade or business, carry on the said trade or business for the benefit of them and of the said Testatrix's estate, but wliich your Orator cannot safely do without the direction and indemnity of this Court ; and the said J. G. alleges, that lie is not of ability to maintain and educate his said son J. S. G., who as tenant in tail of the said devised estates, subject to the said term of 100 years, and is an infant of the age often years or thereabouts, and he therefore claims to have some part of the rents and profits of the said premises paid to him, for the maintenance and education of the said J. S. G. ; and your Orator, under the circumstances as aforesaid, is unable to administer the said per- sonal estate, and to execute the trusts of the said real estates, without the directions of this honorable Court, and the Defendants are desirous of having a person appointeil by this Court to receive the rents and ])ioritsof the said real estates, devised as aforesaid by the said fifth codicil, to which your Orator has no objection. In consideration, &c. to the end. Sec. Pniyer. That the said will and codicils may be established, and that the trusts thereof may be performed and carried into execution, by and under the direction of this Court, and that an account may be taken of the said Testatrix's personal estate and elfects, not specifically bequeathed, and of her funeral expenses and debts, and of the legacies and annuities bcqueatiied by the said will and codi- cilsj your Orator being ready, and hereby oliering to account for 104' BILLS rOR ANU AGALNST EXECUTORS. .ill sucli parts of the said personal estate as have been possessed by jiini, and that tlie said personal estate may be applied in payment o{ the said funeral expenses, debts, legacies, and annuities, in a due course of administration, and that the clear residue (if any) of the said personal estate may be ascertained and paid to the said Defendants, J. G. and E. his wife ; in her right, and in case it shall appear that the said personal estate, not specifically bequeathed, is not sufficient for payment of all the said funeral expenses, debts, legacies, and annuities, or that any parts thereof are not payable out of such personal estate, then that proper directions may be given for payment of such deficiency, or of such parts thereof as are not payable out of the said personal estate, according to the trusts of the said term of 100 years, vested in your Orator as aforesaid, and that an account may be taken of tlie rents and profits of the said real estates, comprised in the said term, received or come to the Iiands of your Orator, and that the same may be applied according lo the trusts of the said term ; and that proper directions may be given touching the eflccts specifically bequeathed by the said will and eodicil?, as licirdooms, and that proper inventories may be made thereof; and that all necessary directions may be given touching the apj>lication of a sufficient part of the rents and profits of the said real estates to the maintenance and education of the said J. S. G., ill case this Court shall be of opinion that any allowance ought to be made for that purpose ; and that a proper person may be ajipointed by this honorable Court to receive the rents and profits of the said real estates^ devised as aforesaid by the said fifth codicil. And for furtlier relief, ^c. R. S, Prai/ Subpoena against I. G. and F. his irifc, B. S., and J. S. G. Bill to establish a Will, and an Account which of the Exe^ cutors possessed himself of Pari of Personals. Injunc- tion to restrain Executors from receiving any further Parts — Receiver Guardian Allowance Widoiu makes her Election. Humbly complaining, shew unto your Lordship, your Orators and Ora- irixrs, \{. I\!. \V. M. II. M. I. M. &c. &'c. infants, by their next friend, that P. i\I. late of, &c. was at the time of making his will herein^ aftrr mentioned, and at his death seised in fee-simple of, or otherwise BILLS FOR AND AGAINST EXECUTORS. 105 well entitled to, divers freehold messuages, lands, tenements, heredita- ■ ments, and premises, situate, &c. and was also possessed of, interested in, or well entitled to, a considerable personal estate, and that the said P. JM. duly made and published his last will and testament in writing, bo?ir- Ing date on or a/)out, &c. which was executed and attested as by law is required to pass real estates, and was amongst other things, in the words and figures, or to the pur'port and eiiiect following, (that is to say) " This is," &c. As in and by, Sec. and your, &c. that the said Testator de- parted this life on or about, &c. without altering or revoking his said will, leaving R. D. M., now of, &c. and one of the Defendants hereto, who was then an infant, but hath since attained his age of twenty-one years, his eldest son and heir at lavv' 5 and your, &:c. that P. M. of, &c. W. M. of, &c. and I. D. of, &c. who were the Executors and Trustees in the said will named, and are three other Defendants hereto, upon or soon after the death of the said Testator, duly proved the said will in the proper Ecclesiastical Court, and took upon themselves the execution thereof, and possessed the personal estate and eftects of the said Testator to a great amount, and the said Defendants also entered into the posses- sion of the real estates of the said Testator, or into the receipt of the rents and profits thereof, and have ever since continued, and now are in such possession or receipt ; and j'our, &c. that M. M. of, &;c. another Defendant hereto, who was the wife of the said Testator in the said will named, and now continues his widow, hath elected to take the provisions intended for her by the said will of the said Testator, in lieu and bar of dower; and your, &c. that very large sums of money have been received by the Defendants, the Executors and Trustees of the said Testator, from his real and personal estate, which have not been laid out and in- vested upon the trusts of the said will, and in particular your Orators and Oratrixes shew that thf said I. D. hath now in his hands a balance due to the said Testator's estate, of the the sum oi £ and upwards. And, your, your Oiafors and Ora- irixcs, P.' J. of A. J. his wifo, and i:. J. W. H. J. P. K. J. IM. J. S. J. infants under the age of 21 years, by the said P.J, their father and next friend. That W. II. late of the parish of in the county of , duly made and published his last will and tes- tament in writing, bearing date on or about the and thereby amongst otiier thincrs gave and bequeathed in the words and figures, or to ihe pur- port and efl'ect following, that is to say,, (state the ici/l) (the sul)stance is, that he gave all his personal estates to his wife for her life, afterwards to riaintifts.) That the said W. II. afterwards made a codiiil to his said will in his own hand-writing, and bearing dale on or about the and in the words and figures, or to the purport and efl'ect Ibllowing, that is to say, (the Testator gave to his son R. K. U. £ after the death of his wife,) as in and by the said will and codicil, or the probate thereof, reference, Sec. And your, &c. that the said Testator departed this lil'e on or about the without having altered or revoked his said will, except so far as the same is altered by the said codicil, and without having altered or revoked his said codicil. Andyoiu-, cVc. that S. II. the widow of the said Testator, and the said W, 13. jind T, Q. two executors in his said will named, and all Defendants hereto, have duly proved the said will and codicil in the proper Ecclesiastical Court, and taken upon themselves the executorship thereof, and by virtue therrof, have possessed themselves of the personal estate and ellects of the said Testator to a large aniount and value, and grpatly more than sufficient to pay and sa- tisfy his just debts, funeral expenses and legacies, &:c. Thi\t your Oralrix A. J. is the daughter of the said Testator, in his said will mentioned, and that your Orator and Oratrixes (the names) are the only children of tije said A. J. and your Orator P. J. and Src. that they have by themselves and their agents repeatedly applied to the said S, II. W. B. and T. O. and have requested ihem to corae to a full und true account with your Orators and Oratrixes for the personal estate and elTectsofthe said Testator, and to secure and invest the residue and clear surplus of the said Testator's persfinal e-tate, for the benefit of your Orators and Oratrixes according to thon, or soon after the death of the said Testator, claimed the said copyhold premises as descended to them, and entered into and upon the possession thereof to and for their own use and beacfit. And your, frc. that the ---.Md W. I\I., R. JM., and N. M., as such U'ruslees as aforesaid, have, since the death of the said Testator, en- BILLS FOR AND AGAINST EXECUTORS, 115 tered into possession of all other the said Testator's freehold estates, and have proceeded to a sale thereof, or the greatest part thereof, and have received the purchase monies arising therefrom,, which, together with the personal estate and effects of the said Testator, possessed by them, amount to a very large sum, and are greatly more than sufficient to pay and dis- charge the said Testator's just debts, funeral-expenses, and legacies. And your, Sec. that the said R. M. was, at the time of the makuigof the will, and of the death of the said Testator, married unto A, M. one of the Defen- dants hereafter named, but that the said R. M. hath not, nor had at the time of the death of the said Testator, any children or child, and that the said N. M. was and is at the time of making of the said will, and at the death of the said Testator, unmarried, and without children ; and yourj&c. that your Oratrix A. H. M. is entitled to have and receive, in present money, of and from the said Trustees, the said sum o{ £ , which in and by the said will is directed to be by them invested in the purchase of 3 per cent. Consolidated Bank Annuities, and to be applied for her use and benefit, in manner in the said will mentioned, and is also entitled to have one- third part or share of the residue of the real and personal estate of the said Testator, invested and secured for her benefit, pursuant to the di- rections of the said will ; and that your other Oralrixes are entitled to have the said sura of £ , in the said will mentioned, and also two- third parts or sliares of the residue of the real and personal estate of the said Testator, invested and secured for their benefit respectively, pursuant to the directions of the said will : and your Oratrixes, being so entitled as aforesaid, have caused many applications to be made to the said Trustees and Executors, and have requested them to come to a just and fair ac- count with your Oratrixes for the personal estate and effects whereof the said Testator died possessed^ and of the produce thereof, and of the monies arising therefrom, and of the rents and profits and purchase mo- nies of his real estates received by and by the order or for the use of the said Trustees and Executors, and also to an account of the said Testa- tor's debts, funeral expenses, and legacies, and that his debts and other charges aud expenses might be thereout paid in a course of administration, and in particular your Oratrix's A. H. M.'s legacy of £ might be thereout paid, and that the clear residue of said Testator's estate might be ascertained and placed out and secured for the benefit of your Oratrixes as they are respectively entitled thereto, pursuant to the said will. And that the trusts of the said will might be carried into execution, with which just, &c. But, &c. Pretence, no will made; charge contrary. Pre- tence, personals insufficient ; charge, contrary. And the said W. M., R. M., and N. M., who are or pretend to be the said Testator's co-heirs at law, at some times pretend that the said will was not so executed and attested as to pass and affect freehold estates of inheritance, and that the 16 114 BILLS FOR AND AGAINST EXFXUTORS. said Testator's real estates did not pass thereby, but descended to them as Testator's heirs at law, and they threaten that they will dispute the validity of the said Testator's will; and at other times the said Defen- dants will admit tlie validity of the said Defendant's will, but then they to- gether with the said A. M., pretend, that for and notwithstanding- the said W. M., R. M., and N. M., as the co-heirs at law of the said Testator, did enter into and upon the aforesaid copyhold esiate which the said Tes- tator had not surrendered to the use of his will, imd did claim and take the same to and for their own use and benefit, yet thai the r.id Defen- dants AV. M., R. M., A. M., andN. M., are, nevertheless, respes tively en- titled in and to the several legacies and provisions whiih the said Testator intended them by his said will, whereas your Oratrixes charge that foi as- much as it appears by the said will to have been tiie manifest intention of the said Testator, that the said copyhold estate, though not in fact sur- rendered, should pass to the uses of his said will, the said W. M., R. M., and N. M., by claiming and taking the said copyhold estate to and for their own use, and thereby defeating the intention of the said Testator, have forfeited all benefit and fidvantage which tlie said Testator by his said will intended to them, or either of them, or to their, or either of their wives or children. Chan;e, that the said W . IV!., I. IM., and O. C, threaten and intend to pay and secin-e to the said R. M., A. M., and N. JM., and also to the said \V. ^l. all and every the legacies and bene- fits by the said will intended therein. All which, \c. To the end, &c. Prayer. And that the said will and codicil of the said Testator may be esta- blished, and the trusts thereof performed and carried into execution ; and that the said W. M., R, iM., and N. ]>?., tlie co-heirs at law of the said Testator, by claiming and taking, to and for their own use and benefit aforesaid, the copyhold estate which the said Testator liad not surrendered to the use of his will, may be declared to have forfeited the several legacies and provisions which by the said will were intended to them. And that an account may I)e taken of the personal estate and eflfects of the said Testator, and of the rents and profits of his real estates, and of the monies arising from the sale thereof, which have come to the hands of the said Executors and Trustees, or any of them, or to the hands of any other person or persons, by their or any of their order, or for their or any of their use ; and also an account of the said Testator's debts, legacies, and funeral expenses, and that such personal estate may be applied in a course of administration, and in particular that the aforesaid legacy of JC may be decreed to l)e paid to your Ora- trix A. H. iNl. ; and that the clear residue of the said Testator's BILLS FOR AND AGAINST EXECUTORS. 116 estate and effects may be ascertained, and, together with the said sum of £ in the said will given to your Oratrix '. VV, during her life, may be placed out and secured for the benefit of your Oratrixes, according to their several and respective rights and inte- rests therein, pursuant and agreeably to the trusts of the said will. And that for these purposes all proper directions may be given. And for further relief. &:c. J. L. 116 SECT. IV.— BILLS FOR AND AGAINST TIICSTEES. Bill to remove Trustees, one refusing to act, and the other having applied Part of the Trust Monies to his own Use. Injunction to restrain them from receiving fur- ther Sums ; for the Appointment of new Trustees and a Receiver. Humbly complaining, &c, your Orator and Oratrixes J. E. of. Sec. S. E. the elder, the wife of ihe said J. E. and S. E. the younger, spin- ster, the daughter and only child of the said I. E. and S. E. That by in- denture, bearing date, &c. , and made or expressed to be made between your Orator and Oratrix I. E. and S. E. the elder, of the one part, and N. B. of, &c., and R. P. late of, &c. but now a prisoner in his Majesty's gaol of , and the Defendants hereinafter named, of the other part. After reciting, Sec. As in and by, &c. And your Orator and Oratrixes further shew unto your Lordslii[), that the said R. P. hath principally acted in the trusts of the said indenture, and hath by virtue thereof, frona time tQ.time, received considerable sums of money and other effects, but the said R. P. hath applied only a small part thereof upon the trusts of the said indenture, and hatli applied and converted the residue thereof to his own use, and in particular the said R. P. hath, within a few months past, received a considerable sum from the estate and effects of the said C. E. the whole of which he applied to his ovv'n use ; and your Orator and Oratrix shew that they have by themselves and their agents repeatedly applied to the said R. P. and N. B. for an account of the said trust property received and possessed by them, and of their appli- cation theieof. And your, &c. well hoped, &c. But, Sec. absolutely refuse so to do. And the said Defendants pretend, that tiie trust j)roperty and effects, possessed and received by them, were to an inconsiderable amount, and that they have duly applied the sanse upon the trust of the aforesaid indenture. Charge, contrary, S^c. ; and so it would ai)pear, if the said Defendants would set forth as they ought to do, a full and true account of all and every the said trust property and effects, which they have re- spectively possessed and received, and of their application thereof. Charge, that the said \\. P. threatens and intends to use other parts of the said trust property, and to apply the same to his own use, unless he is restrained therefrom by the injunction of this honorable Court. Charge, that he, as well as the said W". B. ought to be removed from being Trustees under the said indenture, and that some other persons ought to BILLS FOR AND AGAINST TRUSTEES. 117 be p.ppointed by tlii:; honorable Coiu't as such Trustees in t'aeir place and stead, and that m the meantime some proper persons oiight to b^ -ap- pointed to receive and collect the snid trust property. To the end, &c. And that the said Defendants may answer the premises. Prayer. And that an account may be taken of all and every the said trur^t pro- perty and eifccts which have, or biit for the v ilfrj defa'j't and neo^Sect of the said Defendants might have been received by them, or ei'.her of them, or by any other person or person-, by i hdr or either of their order, or to tlieir or either oi tlieir use ; and also an account of their appliiation thereof. And that the said Defendants may re- spectively be dei^ieed to pay wliat shall appear to he due irom ihem upon iuch account ; and that fiie said Defendants ojay be rvmoved from being trustees under liiC said indenture, and that it nia\ be referred to one of the Masti rs of ihis honorable Court to appoint two other persons to be the 'IViu^tees linder the said mdentuie, in their place and stead; r.nd that in iije meantime siome proper person may be appointed to "'.ive and collect the .-aid t.-ust estate and effects, and that the said '■ -< ft-ndanu may be renrai-.ied by the order -wnl in- junction of this honoraiile Court from any further interference there- in. And for further relief, &c. J.L. Bill for the Appointment of a new Trustee under a Mar- riage Setllement, there being no such power therein contained. Trustee willing to he removed. Humbly complaining, &c. your Orators and Oratrixes I. M. P. of, A;c. and E. his wife, A. P. and C. P., all infants under the age of twenty-one years, by the said I M. P. their father, and riext Jriend, and S. N. M. of, &:c. (the other Trustee under the settlement,) that by certain indentures of lease and release, bearing date respectively, «S:c. the release being of three parts, and made, or expresised to be made, be- tween, &c. i^se.t out indenture.) But the said indenture contained no power or authority to appoint a new Trustee in the place or stead of either of the said Trustees therein named, who should decline to act in the said trusts, or be desirous to be removed therefrom, as in and by, &c. And your, ^:c. That the said intended marriage was, soon afleiwards, had and solemiiized between your Orator I. M. P., and your Oratrix E. P. ; and that your Orators and Oratrixes (the children) are the only children of the said marriage ; and your Orators and Oratrix shew that the said Defendant, by I. P. L. declines to act in the trusts of the ?aid 11§ BILLS FOR AND AGAINST TRUSTEES. indenturej and is desirous to be discharged therefrom, but by reason that no power is reserved in the said indenture for the appointment of a new Trustee, your Orators and Oratrixes are advised that he cannot be dis- charged from such trusts, nor any new Trustee appointed without the aid of tliis honorable Court. To the end, &c. And that the said De- fendant may answer the premises. Prayer. And that it may be referred to one of the blasters of this honorable Court to appoint a new Trustee under the said marriage settlement, in the place and stead of the said Defendant; and that the said Defen- dant may be directed to join in such instrument or instruments as may be necessary for conveying or releasing the said trust uremi^es to your Orator I N. M., and such new Trustee, upon the (rusts of the said settlement ; and that thereupon the said Defendant may be dis- charged from the trusts of the said indenture. And for further re- lief, &c. J. L. Bill for removing a Trustee who refused to act. States the will, death, probate; personal estate insufficient, and there- fore necessary to sell the whole or part of real estate, pursuant to the directions of the. will. Application to Defendant, who was named a Trustee in the will, to join with Plaintiff in carrying the trusts of the will into execution, and for that purpose to make sale of Testator's es- tates to pay off debts, and otherwise to act in the trusts reposed in them by the will. And Plaintiff well hoped, &c. But now so it is, &c. re- fuses to act in the trusts of the will, and therefore Plaintiff is advised and humbly insists, that C. H. ought to release and assign all his estate and interest, in trust, to the said premises, unto I. L. his co-trustee, or other- wise, that a new Trustee ought to be appointed in place of C H., and the said trust estate conveyed unto I. L., and such new Trustee, upon the trusts mentioned in the said will. But the said C. H. refuses to assign or convey the trusts, or any part thereof, alleging that he cannot do the same with safety without the directions and indemnity of this honorable Court. In tender consideration, &:c. To the end, &c. Prayer. That the said C. II. may be discharged from the trusts of the will of the said Testator, and that he may release and convey all his interest in the trust estate, according to the nature thereof, unto the said BILLS FOR AND AGAINST TRUSTEES. 119 T. L. his co-trustee, or that a new Trustee may be appointed in the place and stead of C. H. ; and that the trust and premises may be severally and respectively duly conveyed, accordini^ to the dif- ferent natures thereof, unto the said I. L. and such new Trustee, and the survivor of them, and his heirs, upon the trusts mentioned arnl expressed In the said Testator's will. And that all proper parties may be decreed to join therein. And for further relief. J. L. Bill by Trustee under a Marriage Settlement, to have re- placed in the Funds a Sum of Stock, secured by Bond on the Trusts of said Settlement, and applied to the Uses of the Will of Appointee. Humbly complaining, &c, your Orator, J. W. of, »S;c. that R. II. N. of, &'c. one of the Defendants hereinafter named, by his bond or obli- gation in writing, duly executed by him, bearingdate, &r. became bound to S. S late of, &c. spinster, since decensed, in the principal sum of ^6* with a condition there under written, reciting, Sec. as by, &c. And your, &'c. that a marriage was afterwards intended to be had and solemnized between W. S. of. Sec. and the said S. S. ; and previous thereto a certain indenture of settlement was duly made and executed, bearing date, &zc. between said W. S. of the fn?t part, the said S. S. of the second part, and F. R. S. since deceased, of, &c. and your Orator of the third part, recit- ing, amonst other things, the bond hereinbetore mentioned, and that (in- terest of money due on said bond to be paid to W. S. for life, and after his decease, without issue, to transfer principal to S. S. if tlien liv- ing, and, if dead, as she should apjHjiiif, notwi'.hstanding coverture) as in and by, &:c. And your, &c. that the said intended marriage was soon afterwards duly had and solemnized, but there were no cliiklren of the said marriage; and. Sec. that the said F. R, S. departed this life in the life-time of the said S. S. and yoin- Orator is thereby become the sur- viving Trustee under the said marriage settlement. And your, k.Vc. that the said S. S. departed this life on or alsout, Sec. having first duly made and published her last will and testament in writing, or a paper writing in the nature of a will, bearing date, &:c. and there!)y she gave and be- queathed, &c. £ (to her husband ; " to her sisler-in-law, 1>. S." £ and to her daughters, S. S. and II. S. each £ ; to her nieces, II. and E. II. £ each,' to her brother-in-law, Defendant R. H N. £ , and appointed him Executor) as in and by. Sec. And your, Sec. that after the death of the said Testator, the said R. II. N. duly proved the said will, in the proper Kccksiastical Court, and took u[)on 120 BILLS FOR AND AGAINST TRUSTEES. himscif the executorship thercor. And your, (S.-. that the said R. H. N. )iot having loplaccd the said stock in the said bond hrreinbefcre men- lioned. your Orator caused a notice in writing, bearing date, Sec. to be flehvercd to the said R. H. N, requiring him. Sec. (to replace said stock.) And your Orator well hoped, Sec. But now, &c. R. li. N. combining with, ^:c. (the other persons interested under the aforesaid wil),) pretends tliat the said stock was never transferred tohim, or the value thereof paid to him in money ; and that if such stock were ever transferred to him, or the value thereof paid to him in money, he replaced the said stock some time ago, and in the life- time of the said Testatrix, S. S. and that therefore he ought not nuw to be called upon to pay or replace the same. Charges that the said stock was, previous to bis executing the said bond, transferred to him, the said R. H. N. or the value thereof was paid to him in money, and that the said stock was not replaced by the said Defendant, R. H. N. in the life-time of the said Testatrix, or at any time since, but the same now remains due and owing from the said Defendant upon the trusts of the said settlement, and which the said Defendant will, at other times, admit ; but then he, and the said other Defendants, the legatees in the said Testatrix's wil! named, pretend and insist, that the said Testatrix disposed of the said stock secured, to be replaced by the said bond hereinbefore mentioned by her saici will. Charge, that the said Defen- dant, AV. S. claims to be entitled to the interest and dividends of the said stock, during his life, nnder the said indenture of settlement, hereinbefore mentioned. And for that purpose he hath called upon your Orator, as the surviving Trustee under the said indenture, to have the said stock re- placed, and the interest and dividends thereof paid tohim during his life, but which the said Defendant, R. H. N. hath refused to do. All which, &c. Prayer. That the said Defendant, R. 11. N. may be decreed to replace the said stock, pursuant to the terms of the said bond, hereinbefore men- tioned. And that he may account with your Orator for the interest and dividends of the said stock in the mean time, and that the said stock, when replaced, may be declared upon the trusts of the said marriage settlement, and the said will, or paper writing in the na- ture of a will of the said S. S. deceased. And for further relief. W. C. BILLS FOR AND AGAINST TRUSTEES. 121 Bill by a surviving Trustee, to he discharfred from Trusts on the Ground of Obstruction by the Husband of Ces' tui que Trust. Humbly complaining^ sheweth unto yom' Lordship, your Orator, G. B. of, &c. that J. C of, &c. U'as, in his life-time, and at the time of his death, hereinafter mentioned, seised of, possessed, or well entitled to a considerable real and personal estate, and being so seised and possessed, he the said J. C. on or about, &c. duly made and published his last will and testament in writing, and which was executed, &c. And thereby, aftor confirming an indenture of hettlement therein mentioned, of and the several trusts and uses therein mentioned, and which have since expired by length of time, or otherwise; and after giving and be- queathing unto E. S therein named, an annuity of =£ per annum, and to his sister E. R. an annuity oi £ per annum, and after charging his real and personal estate with the payment there©!', he gave and devised, &c. (all his estates to Plaintiff, S. B. I. II. and G. W. in trust, to pay aforesaid annuities, and the surplus to the sole use of Testator's daughter, E. C. for hfe, and after to her issue, as tenants in common, in default thereof, over.) And your, &c. that after the making and publish- ing of such will as aforesaid, the said Testator duly made and published a codicil thereto, bearing date, Szc. and thereby directed, &c Q£ per annum, to be added to aforesaid annuities, and revoked the appointment of G. W. as Executor and Trustee.) as in and by, &c. And your, ^c. that soon after the making and publishing the said last will and codicil, and on or about, &c. the said J. C. departed this life without altering or revoking his said will, sav^e as the same is altered by his said codicil, and without altering or revoking his said will, leaving the said E. C. I. then E. his daughter, only child and heiress at law, and Plaintifl', and the said S. B. and I. H. his Executors and Trustees, named in his said will and codicil, him surviving, and upon or soon after the death of the said Tes- tator, Plaintiff and the said S. B. and I. II. duly proved the said will and codicil in the Prerogative Court of the A. of C. and took upon them- selves the burthen of the execution thereof, and possessed themselves of the personal estate and eflfccts of the said Testator; and also entered into and upon the possession of his real and leasehold estates, so devised to them as aforesaid, and received the rents and profits thereof, and duly applied the same, and the interest arising from tlic said personal estate, in the payment of the said annuities, and in the maintenance and education of his daughter, pursuant to the directions of his said will. And your, &c. that the said E. C. I. did soon afterwards, in or about, &c by and with the privity, consent, and approbation of Plp.iniifl) and the said S. B. 17 12^ BILLS rOR AND ACiAIKtiT TRUSTEES. and I. H. intermarry with T. C. of, Arc. whereby the said E. C. and her said husband, T. C. in her rigiit became entitled to the residue of the said Testator's leasehold houses, premises, and personal estate so devised by his said will as aforesaid. And your, &c. that by an indenture, bearing date, &c. and made between PlaintilT and the said S. B. and I. H. of the first pait, the said E. C. of the second part, and the said T. C. of the third part, being an indenture of settlement made previous to and in consideration of the marriage then intended, and afterwards had between the said E. C. and T. C. reciting, &c. (to husband for life, then to wife for life, and afterwards, as tiierein mentioned) as in and by, &c. And your, &c. that Plaintiff, and the said S. 13. and I. H. did, upon the marriage of the said T. C. and E. C. make up an account with them of all money and effects whatsoever, had, received, produced, paid, applied, or disposed of by them or any of them, by, from, or out of the said freehold and leasehold, and of all other tlie real and personal estates whatsoever, which were of the said T. C. deceased, since the death of the said T. C. received by them, or any of them, in pursuance of the trust and executorship reposed in them by the said T. C. and did pay to him the said I. C. the balance due to him on such account. And they, the said T. C. and E. his wife, did thereupon execute to Plaintiff and the said S. B. and I. II. a general release, bearing dale, &c. And your, &:c. that there is now remaining the sum of £ ,3 per cent. Bank Annuities Consols, in the name of Plaintiff and the said S. B. the only remaining part of the triist funds mentioned in the said indenture of settlement, of, &"c. And your, &c. that the said S, B. and I. H. tiave severally departed this life, and the said T. C. hath since also de- parted this life, leaving the said E. his widow and relict, and three children, viz. T. C. C. T. W. C. and C. C. then and now infants, under the age of twentv-one years, him surviving, and Plaintiff became the surviving Trustee and Executor of the said will of tlie said T. C. And your, &:c. that the said E. the widow and relict of the said T. C. hath, sometime since, iiiti rninrried with E. J. one of the Defendants hereinafter named ; and since such intermarriage, the said E. J. hath obstructed Plaintiff in the execution of the said trusts of the said Testator's will, and hath got into the possession of the receipts of the rents and profits of part of the said trust estate, and hath received the same for a long time past, and in- sists on having a right to receive the same, and hath, for the enforcing the payment of such rents, brought ejectments and other actions against some of the tenants of the said trust estate, and distrained upon the goods of others of them, and threatens to proceed in such actions, and olher- wise, against the tenants of the said premises. And the said E. J. hath applied and converted the money so received by him to his own use, without any regard to the account char^^cd on the said estates, by the BILLS ron AND AGAINST TRUSTEES. 123 said Testator's will and codicil, and other incumbrances made tliereou by the said E. his wife, before her intermarriage with the said E. J. and by means tliereof tlie said account and incumbrances are become in ar- rear. And Plaintiff is obstructed in the execution of the trusts afore- said, and is threatened with divers suits and actions, for the non-per- formance of the said trusts, and is otherwise put to divers large expenses and costs in and about the premises, and hath been obliged to give no- tice to the said tenants not to pay their rents to any person but himself, and to defend tlicm in the actions so brought. And Plaintiff being the only surviving Trustee named in the said will, is desirous of being dis- charged from tiie trusts thereof, and of assigning over the said trust pre- mises to some other fit and proper person to be approved of by this ho- norable Court. And Plaintiff hath frequently, and in a friendly manner, applied by himself and others, to the said E. J. and E. his wife, and re- quested them to join with Plaintiff in nominating and appointing some other (it and proper person to be Trustee of the said premises, and to permit Plaintiff to assign to such person the said trust estates and pre- mises. And Plaintiff well hoped. Sec. But now, &c. E. J. and E. his wife, combining with the three infants and E. R. M. VV. and R. W. and olhers, refuse to comply, and insist that Plaintiff shall not be discharged from the said trusts before he hath passed the accounts thereof, under a pretence that there is a large sum of money due to them from PlaintiA' on account thereof, the contrary whereof Plaintiff charges to be the truth; and Plaintiff is, and always hath been, ready and willing, and hereby submits to account for the trust money received by him, and of the application thereof, in such manner as this honorable Court shall please to direct. And the said Defendant, the infants, and E. R. M. W. and R. W. do severally pretend and set up some right, claim, or interest, in, to, or out of the said trust estates and premises, or some part thereof, but severally refuse to set forth or discover what estate, right, title, or interest they, or any of them, have, or claim to have, in, to, or out of the said trust estates and premises, and how they severally derive and make out the same, and yet they refuse to permit or consent to Plaintiff's being discharged from the trusts of the said Testator's will and codicil. AIJ, which, &c. Prayer. That an account may be decreed to be taken of the rents and profits of the said trust estates, received by the Defendant, E. J. or any other person or persons, by his order, or for his use ; and that what shall be found due from, on the balance of such account, may be paid by him to Plaintiff, to be applied and disposed of upon the irust, and for the purposes in the said Testator's will and codicil. 124 BILLS FOR AND AGAINST TKUSTLES. declared and expressed concerning tlic same ; and PJaintifi" may be discharged from the trusts of tlie said Testator's will and codicil^ upon passing his accounts, and which Plaintiff is ready and willing, and hereby submits to do, in such manner as this honorable Court shall please to direct ; and that it may be referred to one of the Masters of this honorable Court to approve of three or more fit persons to be Trustees of the trust estate, funds, and premises, ia the place and stead of Plaintiff; and that Plaintiif may be at liberty to assign, transfer, and convey the said trust estates and premises unto such new Trustees, when approved of by this honorable Court ^ and dial PlainiilT may be indemnified in so doing, by the orders and directions of this Court, and may retain or be allowed out of the trust monies now in his hands, or which shall hereafter come to his hands, all and every his reasonable costs and charges in and about the premises aforesaid, or that he may be paid the same by the said Defendant E. J. and tliat, in the mean time some proper person may be appointed by this honorable Court receiver of the rents and profits of the said trust estates, and that the necessary directions may be given in that behalf; and that the said E. J. may be restrained by the orders and injunctions of this honorable Court, tVom all furUier and other proceedings at law, against the tenants of the said trust estates, or any of them, and from any further receipt of the rents and profits thereof, or otherwise intermeddling with the trust estates, monies, and premises. And for further relief. T.N. ^ill by Husband and Wife against the Trustees of their Manian the trusts of the said other term of years, having been duly satisfied. And your Oratrix C. G. II. F. as the only daughter of her said father T. lord F. became entitled to have the sum of £ raised upon the said devised pre- mises, by virtue of the trusts of the said term of years. And your Orator and Oratrixes further shew unto your Lordship, that your Orator intermarried with your Oratrix C. G. IL some time in or about the month of , and by a certain indenture of four parts, bearing date the day of , and made between your Orator of the first part, your Oratrix C. G. H. of the second part, the honorable E. F, of S. in the county of II. and the honorable E. F. of of the tliird part, f\nd the said R. D. the surviving trustee in the before-mentioned term of BILLS FOR AND AGAINS.T TRUSTEES. 12S' years, of the fourth part, (being a deed to assign over the said term of years to your Orator, for securing the said sum of £ ,) [state the deed;'] and by a certain other indenture of three parts, bearing even date with the preceding indenture, and made between your Orator of the first part, your Oratrix C. G. H. of the second part, and the said E. F. A. F. and E. C. of , esq. and J. D. of in the county of M. esq. of the third part (whereby the said sum of £ was settled upon the younger children which should be of the marriage of your Orator and Oratrix, Istate the deed;] and by a certain other in- denture bearing date the day of , and made between the said R. B. of the one part, and your Orator and Oratrix C. G. H. his wife, of the other part (the said term of years was assigned by B. by way of mortgage) [state this deed ;] and by a certain other indenture, bearing dale the day of , and made between your Orator of the one part, and the said E. F. A, F. E. C. and J. D. of the other part (whereby the premises comprised in the years term, and the >said £ was assigned to the trustees as aforesaid,) [state this also ;] as by the said several indentures, to which your Orator and Oratrixes crave leave to refer, when produced, will appear. And your Orator and Oratrixes further shew unto your Lordship, that by virtue of the said several indentures, your Orator is become entitled to the interest of the said sum of ct" for his life, and after your Orator's death, the said principal sum will become the property of your Orator's younger chil- dren by your Oratrix his wife ; and in default of such younger children, the same will become the absolute property of your Orator. And your Oratrixes — C. — C. and C. are as yet the only children of the said marriage. And your Orator and Oratrixes further shew, that no pay- ment hath been made to your Orator in respect of the interest of the said sum of £ accrued due since the said marriage, but the whole of such interest now remains due and owing to your Orator, although the interest made payable lor the said sum of £ is at the rate of 4 per cent. only. And your Orator being desirous of having the arrears of the said interest paid him, and of making a larger interest of the said money which he would be entitled to do, in case the same were raised and paid upon the trusts of the said indenture of settlement, your Orator hath therefore, with the consent and approbation of your Oratrix C. G. H. his wife caused applications to be made to the said A. F. E. F. E. C. and J. D. respectively, the Trustees in whom the said term of years is now vested, and duly required them to take proper measures for raising the said sum of £ and the interest due for the same, or at least to procure the 'mtcvesr-oi the said sum of £ to be raised to 5 per cent, per annum, and to be regularly paid, in which case your Orator w-ould have been sali-sfted. and hath ofiefed to let the said money remain i<28 BILLS rOR AND AGAINST TRUSTEE^. upon the said original security. And your Orator and Oratrixes hoped tliat such requests uould have been complied with, as in justice and equity ought to iiave been the case. But now so it is, may it please your Lordship, that the said A. F. E. F. E. C. and J. D. in concert with the said T. now lord F. who is an infant under the age of twenty-one years, have refused, and now refuse, to take any measures for raising the said sum of oC and the arrears of interest due thereon, or for procuring the interest of the said money to be raised to 5 per cent, per annum. And the said Defendants allege that they cannot safely proceed in rais- ing the said money, or in raising the said interest by reason of the infancy of the said Defendant lord F. ; and sometimes they allege that the said money cannot be raised by means of the said term of years, by reason that the trusts of the said term of 3'ears are not all as yet fully per- formed, whereas your Orator charges, that the said term of years ought not to be considered as an impediment to raising the said sum of £ , inasmuch as the said term of years is of sufficient value to raise the said sum of ^^ , in case the same were sold expressly subject to the said term of years, and the same ought to be done, or else the equity of redemption of the said T. lord F. in the premises ought to be foreclosed for the remainder of the said term of years, for the benefit of tiie persons interested in the said sum of £ j but the said Trustees, as well as the said T. lord F. make various objec- tions thereto. In consideration whereof, and forasmuch as your Orator and Oratrixes are remediless in the premises at the common law, and cannot have relief therein but by the aid of a Court of equity, where matters of this nature are properly cognizable and relievable, to the end therefore that the said Defendants A. F. E. F, E, C. and J. D. upon their several and respective corporal oaths, and the said T. lord F. upon his attestation upon honor, may full, true, perfect, and distinct answer make, to all the matters aforesaid, to the best and utmost of their re- spective knowledges, remembrances, informatiotis, and beliefs ; and that as fully a's if the same were here repeated, and they thereunto severally and distinctly interrogated, and more especially that they may severally answer and set forth, in manner aforesaid, whether, Sec. (Jnterrogatt to each fact «« stated in the bill.) Prayer. And that an arcoiint may be taken by and under the direction and decree of this honorable Court, of the principal and interest due and owing on the aforesaid security of the premises comprised in the said term of years. And that, what shall be coming from such account may be paid by the said Defendant T. lord F. to the said other Defendants, upon the trusts of the said settlement, BILLS FOR AND AGAINST TRUSTEES. 129 and by a short time to be ap[x)inted for thai purpose, or in default thereof, that the said Defendant T. lord F., and all persons entitled to redeem the said premises, by virtue of the said, indenture of the day of may be debarred and foreclosed of and from all light and equity of redemption of and in the said pre- mises comprised in the said term of years ; or that what shall be coming from the aforesaid account, may be raised by .^ale of a sufiicieiit part of the said premises comprised in the said term of years. And that all proper parties may join in such sale. And that such money when raised, may be paid to the said De- fendants the Trustees, upon the trusts of the said settlement. And that the said Trustees may be directed to pay to your Orator what shall appear to be coming for arrears of interest of the said sum of <£ out of the said money when paid to them as aforesaid. And that your Orator and Oratrixes may have such further or other relief in the premises, as to your Lordship shall seem meet, and this case may reouirc. Mav it please, &c. R. S. Bill against Trustees for selling out Stock in their Names, under a Settlement, which being in their Custody, Plain- tiff cannot set it out more fully, Account of the Di- vidends, and Injunction from selling the Remainder, Bank a Party, Humbly complaining, Sec. your Orator, J. R. of &c. that D. M. widow, late the wife of your Orator, and before her marriage with your Orator, the wife of J. H. intermarried in or about, &c. with J. H., and that previous to her marriage with the said J. H. the said D. M. was possessed of or entitled to £ 5 per cent. Annuities, or some such or the like sum or sums of the public stocks or funds which was standing in her name in the books of the Governor and Company of the Bank of England, and that on or previous to the said marriage some settlement was made of such stock, by which in the event of the said D. M. mar- vying the said J. H., and there being no issue of the said marriage, such stock was to be or become the j)roperty of the said D. M., and the said stock was accordingly transferred in the names of W. T. late of, &:c. de- ceased, and of li. N. of, &c. one of the Defendants hereinafter named, upon the trusts of such settlement, but which settlement, or a copy thereof, is in the possession or power of the Defendants hereinafter named, or some of them, who refuse to produce the same, or to set forth what is become thereof, that your Orator is unable more particularlv to sot forth 18 130 BILLS FOR AND VGAlNbl TUL.^TEEs. the coiitOTts thereof. And your, &c. that the said J. II. died in the life-time of the said D. M. without issue by the said D. M., and that on or about, Sec. the said D. M. intermarried with your Orator, and lliat she departed this life on or about, Sec. and that your Orator hath pro- cured letters of administration of the personal estate and eflects of the said D. his wife, to-be granted to him by the Prerogative Court of Can- terbury, and thereby your Orator became entitled to the said £ 5 per cent. Annuities. And your, &c. that the said W. T. is long since dead, and the said B. N. has transferred the said stock into the names of himself and T. T. ot', Ac. a Defendant licreinafter named, and the said T. T. and B. N. have sold out £ part of the said £ stock, and converted the monies arising from the sale thereof to their own use and the remaining £ stock is now standing in the names of the said B. N. and T. T. in the books of the Governor and Company of the Bank of England ; but they intend to sell out the remaining £ stock. And your, &c. that the said T. T. and B. N. have received divers sums of money in respect of the dividends of the said stock which they have not accounted for to your Orator, nor to his said wife in her life- time. And your Orator has frequently and in a friendly manner, by himself and his agents, applied to the said T. T. and B. N. and have re- quested them to transfer to your Orator so much of the said stock to which the said D. the wife of your Orator, was entitled as aforesaid, as now remains standing in their names, and to account with your Orator for all and every the sum and sums of money received by them or either of them in respect of the dividends of the said stock whicii was not paid over to the said D. in her life-time, and in respect of the said stock which hath been sold by them as aforesaid, and for the interest thereof, and the dividends which might have been made thereof, or to replace such stock so sold out by them. And your Orator well hoped. Sec. But now, «&c. sometimes preicnd, that the said D. M. afterwards the wife of your Orator, was not at any time possessed of any such stock as aforesaid, and that they do not in any manner chiim the same from her, or any person claiming from her, or that if they do, tliat the same hath been settled iu such manner, that your Orator hath no interest therein, but that the same is vested in them or one of them, for their own use and benefit ; whereas your Orator expressly ciiargcs tiie contrary of such pretence to be true. And that tiie said 1). .M. afterwards the wife of your Orator, was possessed of, or entitled to stock as aforesaid, which became vested in the said T. T. and B. N. in manner and upon tlie trusts aforesaid, or upon such or the like trusts, under which your Orator is now entitled to the some, and so it would apprar if ihey would set forth the date and particulars of the settlement whiili they allc'Ho was made thereof, and how they make out their title to the same, and would produce and leave such settlement BILLS FOR AND AGAINST TRUSTEES. 131 which they allege was made thereof, in the hands of their clerk in Court in this cause for the usual purposes, but which they refuse to do. And they threaten and intend, unless restrained by an injunction of this honor- able Court to sell out the residue of such stock. And the Governor and Company of the Bank of England, intend to permit such transfer, and if the same be sold out, the money arising from the sale thereof, will be lost. All which, Sec. To the end. I'v'c. Prayer. And that an account may be taken under the direction of this honor- able Court, of the said monies wliich have been received by the said T, T. and B. N., or by their or either of their order or for their or either of their use, which have not been duly accounted for and paid over by them. And that they may be decreed to answer and satisfy to your Orator what shall be found due to him on taking such ac- count as aforesaid. And also the monies which they have received on account of the stocks, so improperly sold by them as aforesaid, or to replace such stocks and to transfer the same, and the stocks which now remain standing in their names, to your Orator, and that the said T. T. and B. N. may be restrained by an injunction of this honorable Court, from transferring the said sum of £ ov £ 5 per cent, or such other stocks as now stand in their names, and which the said D. M. afterwards the wife of youi* Orator, was entitled as aforesaid. And that the Governor and Company of the Bank of England may be restrained by the like injunction from uermitting any such transfer. And for further relief. T. B. 152 SEC. V. — BILLS KUK. SHIP ASSURANCJt;. BUI hij Underwriters, fir a Fraud practised vpon them in representation of the Voijas;e, the Policy was from to , and the Assured brought an Action for a total Loss on that Voyage, when in fact the Ship^s destined Voyage was to , tvhere she arrived, and was sold with her Cargo, States tliat W. W., of, «!v-c. alone or jointly with soinc other ))crsons, was or were or pretended to be before and at the time of the making tlie insur- ance after-mentioned owners of a certJ'.in merrliant ship or vessel callrd;, the and they or one of them, particularly the said VV. W. or I. B. and T. G. of the city of . insurance brokers, and co-partners, as apents for and on tlie belialf of the owners or owner of the said ship, on or about, &c. caused a policy of insurance to be opened at the citv of on the said ship and her cargo, against the danger of the sea and capture of any foreign enemy, on a voyage to be by the said ship from the ])oit of to and which voyage it was upon such occasion pretended that the said ship was immediately to make, and such insurance was accord- ingly effected at the city of . on or about, &rc. and amongst other persons who underwrote or subscribed the said policy, your Orators respectively underwrote the same for the sum of £ each, at or after (he premium of guineas, per cent, to return 5 per cent, for having departed witli the West India convoy, if arrived, i. e. to IMaintifl' T. 11. the respective sums of £ each upon the said ship, which was valued in (he said policy nt£ , and the rest of Plainti/Ts the like sura of £ upon the cargo on board the said ship, as in and by, &:c. That notwithstanding the representa'.'on made to Plaintiffs at the time of making the aforesaid insurance to the j)ort of the said ship's destina- tion, tlie voyage really intended to be made by her was not from the port of , as mentioned and expressed in the said policy, but from the port of to , or some other port in , or to some other ilifferent port or place than . And Plaintiffs having been deceived and imposed upon by such untrue representations of the said ship's in- fended voyae< , the said insurance was fraudulent, and therefore the said policy was mil! and void. That the said ship aflrrwards sailed from tlie port of with some '■'tlier ships which were to proceed under convoy for , but the said -hip soon after quitted the saiefendants E. B. D. N. and I. T. have, as the agents of the said I. E. upon pretence of such allegation, lately demanded from your Orators respectively, the sums severally underwritten by them on the aforesaid policy. And your, &c. that the said Defendants also allege, that the said ship called the sailed from the in the month of , upon her said voyage in the said writing or policy of assurance mentioned, and that the said ship touched at son)e place on the coast of , and went from thence to , and on the day of , sailed from •on her return to the , and afterwards, and whilst the said ship was proceeding on her said voyage, she was by and through the mere perils and dangers of tiie seas, and by stormy and tempestuous weather, so greatly damaged and injured, that on or about the day of the same month of she was compelled, for the preservation of the said ship, to put into some port in the of , and there to undergo very heavy and expensive repairs to the amount of the sums insured as afore- said upon the said ship. And the said Defendants E. B. D. N. and I. T. have, as such agents as aforesaid, lately demanded from your Orators respectively, the sums severally underwritten by them on the said last mentioned policy. And your, &c. that upon enquiring into the several matters aforesaid, y^ur Orators have discovered that the said Defendant I. E. was a merchant or trader, residing at the , and for many years had been and was a domiciled subject of the govern- ment there, and that the said A. E. acting as the consul there, availed himself of his situation, to purchase at a low price many old worn- out and crazy vessels, and fitted out or pretended to fit the same out for diflerent voyages, and well knowing that the said ships were not sea- worthy caused the same, and the cargoes thereof, to be insured in the eity of , at high prices. And in particular your Orators shew that the said ships, the and were old vessels, and worn out, and were by no means in a fit state or condition to proceed on tlu: said voyages insured; and so it would, appear, if the said Defendants ■would set forth, when and where the said ships were built, and when, and tlom whom, and at wh;it pi ices the vaid ship? were b(»iTcht bv ^hc said 19 138 BILLS FOR SHIP ASSLUANCF,. I. E. and what repairs had been done to the said ships respectively, after he piirthasrd them, and what moni<'s had been expended, and what was tlie particuUir state of the repairs of the said ships at the time they are al- leged to have sailed on their said voyages, and by whom the state of their repairs had been surveyed, before they sailed upon their said voy- ages, and what reports were thereupon made by the person who so sur- veyed. And your Orators shew, that if the said ship the did in fact sail from the , yet she did not sail on the said voyage insured ; and so it would appear from the entries made at the Custom House, or other proper oiTice, at the on her clearance out from the said port, if the said De- fendants would set forth, or otherwise, such entries were false and color- able, and meant to disguise and conceal tlie true destination of the said ship ; and the master of the said ship had instructions to pursue another and a different voyage, and did, in fact, deviate from the voyage insured ; and so it would appear, if the said Delendant, I. ¥.. woukl set forth all and every the instructions given to the master or captain of the said ship, on her sailing from the , and all and every the letters and letter written to or received by the said I. E. with respect to the sailing and destination of the said ship. And your Orators shew, that although it is alleged that the said ship the has never been heard of since she sailed on her said voyage, yet the said Defendant, I. E. w-ell knows where the master and seamen, who were on board the said ship, when she is alleged to have sailed on lior said voyage, now are, or have been, since the alleged time of her saihng; but the said Defendant refuses to set forth the names of such master and seamen, or to make any discovery with respect to them, in order that your Orators may not have the means of proving the sevcMul matters afore- said. And your Orators shew, that if in fact the said ship did undergo such repairs as are alleged by the said Defendants, sucli rf'pairs, or the greater part of them, were made jiccessary, not by anv ptri'ss of wealiier wliich the said sliip had met with on her said voyage, but by reason that she was not sea-worthy at the time she sailed from as aforesaid. And your Orators shew, thai it was noftlic intention of the said I. E. when the said ship sailed from , aforesaid, liiat she should adhere to the voyage insured, and ihe said shi|) did, in fact, before slie put into as aforesaid, in many respects d< viate from the said voyage : and so it would apjjear if the saiil Defendant would set forth the instructions wiiich were given to the master or captain of the said ship, and the par-ticular trade in which the said ship was meauttobo employrd upon tin- said voyage. And your Orators shew, that the said 1. 1". was an alien born, and was, at the time of the assurance of the said HILLS FOR SHIP ASSURANCE. 139 ship?, andhalli, ever since, continued to be, and now is, a domiciled sub- ject of the persons exercising the powers of government at and that, at the time of the h)ss of the said sliip , if the same were lost, as is alleged, and at the time the said ship put into the as aforesaid, the persons exercising the powers of governrnent at were, and now are, enemies of our king, and the said Defendant, I. E. is an enemy of our king, and adhering to the king's enemies. And your Orators shew, that after the said ship had been repaired at the said she sailed from thence, and was soon afterwards ca{)lured by a British vessel; and the said ship and cargo hath since been condemned by a Court of Admiralty of this country, as Dutch property ; and although the said Defendant, I. E. not only made such assurances as aforesaid on tlie said ship, but also insured the sum of £ on the cargo of the said ship, yet the said T. E. hath submitted to such sentence, and hath in no manner appealed therefrom. And 3'our Orators further siiew, that the said defendants well know where the master and seamen of the said ships are now, or lately were to be found or heard of, and ought to set forth a list of the names of such master and seamen, and where they are respectively to be found. And your Orators shew, that they have, by themselves and their agents, repeatedly applied to the said l^efendants, and have requested them to deliver up to your Orators tlie said policy of assurance to be cancelled. And your Orators well hoped, &c. But now. Sec. And the said Defendants, E. B. D. N. and I. T. as the agent of the said other Defendants, I. E. have actually commenced actions at law in his Majesty's Court of King's Bench, against your Orators re- spectively, in order to recover from them the sums respectively under- written by them as aforesaid. And the said Defendants threaten and in- tend to proceed to judgment and execution against your Orators respec- tively in the said actions, unless they are restrained therefrom by the order and injunction of this honorable Court. And your Orators charge, that the said Defendants have respectively written to each other divers letters concerning, or in some manner, or in some passages relating to the in- surance of the said ships and cargoes, or to the intended voyage, or to their state and condition previous to the alleged commencement of the said voyages, or to the alleged loss of the said ship , or to the alleged damage sustained by the said ship , or in some manner, or in some passages relating to the matters aforesaid, or some of them ; and the said Defendants, £. B. D. N. and I. T. have now, or have had in their custody or power, all and every the letters afore- said, or copies thereof, and also divers protests, invoices, bills of lading, surveys, books, instruments, or writings, in some manner, and in some parts, concerning or relating to tlie said rnalK rs, or some of ihem. And 140 BILLS FOR SHIP ASSURANCE. your Orators charge, that it would appear, upon the production of t(i<* said letters, protests, invoices, bills of lading, surveys, books, papers, in- struments, and writings, that the said policies of assurance ought to be delivered up to your Orators respectively, to be cancelled, and that the said Defendants, E. B. &c. ought not to maintain the aforesaid actions against them but the said Defendants refuse to produce the same. And your Orators charge, that the said I. E. is now resident at the or elsewhere, out of the jurisdiction of this honorable Court. And your Orators charge, that they were unable to make a full defence to the demands of the said Defendants, in respect of the said policies of assurance, without the testimony' of divers persons resident at and elsewhere, out of the jurisdiction of this honorable Court. All which, «i'c. To the end, &c. 141 SECT. VI. PARTNEnSUlP CONCERNS, Bill by one Partner a:o^ainst another, fur an Account of Partnership Transactions, Drfindant having entered into various Speculations without Consent of the other, and then ivanting to charge the Loss of such Specula- tions to the Finn. Humbly complainiiiG:, sheweth unto your Lordship, your Orator, H. B. of &c. carpenter and builder, that in or about the month of your Orator agreed with W. P. of, .vc. carjienter and builder, the Defendant herehiafter named, to become a partner with him in his said trade and busi- ness, and thereupon a certain indenture of two parts, bearing date on or about, &c. was made and executed by and between your Orator and the said W. P. which, among other things, contained in the words and figu-res following ; — that is to say, Whereas, &;c. And your, &c. that the said partnership trade and business was accordingly entered upon by the said W. P. and your Orator, pursuant to the provisions of the said indenture, and the same hath ever since continued, and now continues. And your Orator hath, from time to time, in all things duly conlbrmed to the stipu- lations and agreements in the said indenture contained. And yoiir, &c. that the said W. P. hath, since the commencement of the said partner- ship, been in the habit of receiving all large sums of money, and of draw- ing all checks and bills of exchange on the partnership account ; but the said W. P. hath not duly and regularly entered all such transactions in the partnership books of account, but hath entered therein only a small part of such transactions, and hath kept your Orator in ignorance with regard thereto; and the said W. P. hath drawn many bills, and given many acceptances in the name of the partnership firm, not in respect of the partnership concerns, but for his own private purposes. And your, &c. that notwithstanding the provision in the said partnership articles, that the partnership accoimts should be duly stated and made upon the day of in each year, yet the said W. P. hath not yet stated and made up the partnership accounts to the day of although he hath been repeatedly applied to for that purpose. And your, &c. that after the formation of the said partnership, the said W. P. without consulting or communicating with your Orator, took in his own name certain ground and premises in , and also in , and also at , and the said W. P. built thereon, and the carpenter's work to such respective buildings was 4one by the partnership workmen, and from the partnership stock, but 14ii PARTNERSHIP CONCERNS. all other workmen were employed therein by the said VV. P. witliont any communication with your Orator. And your Orator sheweth, tliat such several speculations having proved unprofitahle, and a considerable loss having been incurred by (hem, the said W. P. hath lately pretended that all such speculations were entered into by him on the partnership account, and that your Orator is to bear his proportion of the loss. And your,&c. that in on or about, &c. the said \V. P. took a lease of premises in in his own name, and the said W. P. proceeded to build a house thereon, and represented to your Orator that he was building it for a Mr. R. and the carpenter's work, which was done, was by desire of the said W. P. at first entered in the partnership books to IMr. R.'s account ; but the said W. P. afterwards informed your Orator that lie was to build the house on his own account, and the car|>enter's work was from thence considered as the private debt of the said VV. P. And your Orator sheweth, thai the expense of building the said house, includ- ing the said carpenter's work, amounted to £ , and that the said W. P. afterwards sold the said house for £ only, and then in- sisted that it was a speculation on the partnership account, and that your Orator should bear his proportion of the loss. And your, &c. that the said W. P. in the beginning of the year , applied to the father of your Orator for a loan of money allejring that the trade required more, and that your Orator had not a sufficient capital in the trade. And your Orator shev.'eth that your Orator's father, upon that occasion, referred to your Orator, and being informed of t!ie reasons which your Orator ha(t to complain of the conduct of the said W. P., refused to advance any fur- ther surn of money, and thereupon differences and disputes arising be- tween the said W. P. and your Orator, the said W. P. proposed terms for the dissolution of the partnership, to which your Orator acceded ; but the said W. P. afterwards changed his terms, and your Orator not being able to come to any agreement in that behalf with the said W. P. gave notice to the said W. P. that all treaty for a dissolution was at an end. And your, &^c. that your Orator afterwards continued to give his atten- tion to the partnership business as usual, although he was, upon many occasions, abused and insulted by the said W. P. And your Orator sheweth that on the day of last, your Orator was at the part- nersiiip counting-house, when a message came fro'ni a Mr. , re- questing Messrs. P. and H. to send a man to his house, to do some car- pentering jobs, and your Orator thereupon dire( ted one of their men to go accordingly : but tlic said W. P. overliearingvvliat passed, desired their foreman P. not to let the man go; and your Orator then inquiring from the said W. P. what he meant by such conduct, the said \V. P. answered, that he did not choose tlie man should go, and that your Oralor had better go about his business, and not come there, and that none of the men PARTNERSHIP CONCERNS. 143 slmwld do any thing he ordered them tQ do; and the said W. P. added some terms of opprobrium and abuse of your Orator; and the said W. P. then ordered C. their clerk, to keep the books himself, and to lock up tlie safe, in order that your Orator might not have access to them. And your Orator having a pass key to the lock of the safe door, and to other locks on the partnership premises, the said W. P. caused the locks to be changed. And your, &c. that being compelled, by this conduct, on the part of the said W. P. to absent himself from the partnership business, your Orator forthwith took other premises, in in the jiame of the partnership, for the purpose of carrying on business there, on the joint account of the said W. P. and himself, pursuant to the aforesaid articles of partnership; but your Orator, at the same time, considering it to be desirable that a dissolution of the partnership should be effected, if it could be done upon fair and reasonable terms, the solicitors of your Orator at his request, on or about, &c. wrote and sent a letter to the said W. P. in the words and figures or to the purport and effect follow- ing ; that is to say, — Sir, " In consequence,"' &c. And your, &c. that the said VV. P hath taken no notice of the said letter, nor hath since, in any manner, communicated with your Orator, and your Orator hath from thence continued to carry on business in the partnership name, and on the partnership account, in the said new premises in but liath at all times been and is now willing and desirous to attend the partnership business at the former premises, if requested or permitted so to do by the said W. P. And your Orator humbly insists, that the said W. P. ought to come to an account of the partnership dealings and transactions from the commencement thereof, and that the said W. P. ought to be restrained by the injunction of this honorable Court from receiving and collecting the partnership debts and monies due, and to accrue due ; and that some proper person ought to be appointed by this honorable court to receive and collect the same ; and that proper direc- tions ought to be given by this honorable Court, for the conduct and ma- nagement of the said partnership business in future for the joint and equal benefit of the said \V. P. and year Orator. To the end, od frequently so to do. nor hath the said draft or bill been at any time returned or delivered to Plaintiffs, or either ©f them ; and therefore Plaintiffs have, at several times, by themselves and their agents, applied unto the said I. H. A. to deliver up the said draft or hill, for payment of the said sum of £ . And it being al- leged that the said draft or bill is now in the possession of J. T. Plain- tiffs have, in like manner, made the like application to him : and Plain- tiffs hoped that the one or the other of them would have complied with such request. Pretends, that a lull and valuable consideration was paid to Plaintiffs, or one of them, for the aforesaid draft or bill of exchange, by the said I. n. A. or some other person, or that Plaintiffs, or one of them, at the time of delivering the said draft or bill of exchange to him the said I. H. A. were or was justly indebted to him in some sum or sums of money; and that such draft or bill was dr-livered to him in or towards satisAiction of or for securing such debt : or that the money made pay- BILLS UPON PROMISSORY NOTES. 153 ahie thereby, or great part thereof, hath been paid to or for the use of Hainlifls, or one of them. Charge contrary. And so the said Defondants will, at other times, admit ; but the said J. T. pretends, that the said draft or bill of exchange was delivered by the said I. H. A. to one VV^. S. G. and ihat the said W. G, delivered the same to one C. P. and that the said C. P. ddivered the same 1o one J. D. and that the said J. D. delivered the same to him the said J. T. and that ail or most of such several persons, by whom it was pretended that the said draft or bill of exchange hath been, from lime to time, so delivered to others, had or received some good or valuable consideration for such delivery thereof, and for indorsing the said draft or bill of exchange, or that the same was so delivered in or to- wards the discharge of or for securing some just or real debt or debts, at such respective times owing from the person by whom the same was so delivered, had before, or at the time of receiving the same, any notice that Plaintiffs, or either eif iliem. had not received any consideration for tlie same, or that the said I. H. A. had signed such receipt or undertak- ing as afort'faid for the same; and that therefore he the said J. P. is en- titled to receive the said sum o\' £ from Piaintifls, or some of them, \ty virtue of such draft or bill. Charge, that if the said draft or bill hath been really ddivered by and to all or any of the parties aforesaid, and indorsed by all or any, or either of them, uil or most of snch deliveries and indorsements were or was made fraudulently, and only colorable, and not bona fide for the true and real benefit of the parties to whom such deliveries and indorsements were re- spectively made, but in trust for the deliverer or indorser for the said I. H. A. and with a view to give a better appearance of right to sue Piaintifls, or one of them, on the said draft or bill; and no consideration in money, or otherwise, or, however, not near a full and valuable consi- deration was ever really and bona fide given to or for the use of any such deliverers or indorsers of the said draft or bill of exchange, for or on ac- count of the delivery or indorsement thereof; nor was any mon^^y what- soever, or at most only son:e very triuing Eum, at any such lime, really and actually due from either of the said persons to whom the said draft or bill hath been so indorsed or delivered, but all the said parlies are accus- tomed to deal in transactions of sucii kind, and they, or most of them, have been long concerned together in dealings of such nature, and the person to whom the said draft or bill of exchange hath been, from time to time, indorsed or delivered, or some or one of such persons had h-.- /ore, or at the time when the same was so delivered to them respective Vv some knowledge, notice, information, belief, or suspicion, that Plainlifis.; or either of them, had not received a full and valuable consideration, or ainy consideration for the said draft or bill, and that the ?:tid T. W. V iiad 21 1j4 bills LFU.N PliU.MISSOKY NOTES. signed such receipt and undertaking relating lliereto as aforesaid ; and that no person to wliom tlie said draft or bill had before been indorsed or delivered, had paid a valuable or any consideration for the same, axid particularly the said I. T. had some such knowledge or belief, &:c. before or at the time of the delivery of the said draft or bill of exchange unto him, or before or at the time of his paying the considerations, which, if any, he paid for the same, or some part liiereof, and therefore humbly insists that the said I. T. is not entitled to recover any money from Plainlifl's, or either of them, under or by virtue of such draft or bill of exchange; and Plaintiffs humbly insist, that if they, or either of them, shall be bound to pay any money in respect to the said draft or bill of exchange, to the said I. T., or any other person, the said I. H. A. ought to repay the same to Plaintiffs, together with all Plaintiffs' costs and charges relating thereto. But, nevertheless, under such, or the Uke pretences as aforesaid, or some other equally unjust and unreasonable, the said I. T. and also the said I. H. A. refuses to deliver up the same to Plaintiffs, or either of them ; and the said I. T. and I. II. A. or one of them, in the name of the said I. T. have or hath commenced an action at law against Plaintiff, J. G. as acceptor of the said draft or bill, for recovery of the said sum o( £ , and they, or one of them, threaten to proceed to judgment and execution in such actions. [The prayer might be to some such effect as the following.] That if the Court should be of opinion that PlaintifTs, or either of them, ought to pay any money in respect of the draft or bill of exchange to the said I. T. or any person, the said I. H. A. may repay the same to Plaintiffs, together with all their costs and charges relating thereto. But if the Court should not think ihe said I. T. or any person to be entitled to any money from Plaintiffs, or either of them, in respect of the said draft or bill of exchange, it may be delivered up to Plaintills to be cancelled, with an injunction from proceeding on tlie said bill of exchange. N. 1>. It might perhaps be advisable to cliarge a strong confederacy, and pray that the note might in the first instance be given up, leaving to I. T. only a remedy against I. II. A. Bill by the Acceptor of an AccommoJatioji Note against an Indorsee, ivith Notice to have Bill delivered vp, and an Injunction. That Plaintiff, having been, for some time before, and In the month of , acquainted with O. ,S. of, &c. the said O. S. together u iih T. T. of, &c. some time in or about the said month of, &c. applied BILLS UPON PROMISSORY NOTES. 155 unto PlaintifT. and represpnted to him that T. T. had a pressing occasion for money, and therefore they I)oth desired Plaintifi' to accejit a draft or bill, to be drawn on Plaintifi" by them, or one of iheni, for the payment of <£ at a future day, in order that he the said T. T. might pay away the same as money, or might raise money, by discounting the same ; and they then promised and faithfully assured Plaintift" that they, or one of thenj, and particularly the said T. T. would take care to discharge the said sum of £ before or when the same should become payable, and to procure such drafts to be delivered up, and to indemnify Plaintiff from all demands, costs, charges, and expenses, relating thereto, with whicli request Plaintiff, for some time, refused to comply, as Plaintiff was noi then indebted unto the said O. S. and T. T. or either of them, nor had any acquaintance with the said T. T. But Plaintiff being strongly im- pressed and importuned by the said O. S. and T. T. and they having promised, that in case of his compliance, the}' or one of them would, bv the time such sum of £ would become payable, employ Plaintiff in so much business in the way of his trade, that his bill for such business would amount to more than such sum of .£ , or to that effect. Plaintiff did at length, although with great reluctance, agree to comply with such request ; and the said O. S. having wrote or signed a draft or bill in writing, bearing date, &c. directed to Plaintiff, and requiring Plain- tiff, two months after the date thereof, to pay to his, the said O. S.'s or- der, £ , being, as therein mentioned and expressed, for value re- ceived in deals from him the said O. S. or to such or the like effect, Plain- tiff did sign his acceptance of such draft or bill as a matter of favor to the said O. S. and T. T. or one of them, and for the service and accom- modation of the said T. T. as aforesaid, and without any consideration whatsoever in money or otherwise; and although Plaintiff was not then indebted to them, or either of them, in any money whatsoever, nor was ihe value thereof, or of any part thereof, ever received by or for the use of Plaintiff in deals, or otherwise ; and Plaintiff so accepted such draft or bill, under a firm reliance on the aforesaid promise, that thej'^ the said O. S. and 1\ T. or one of them, would pay the said sum oi £ , and indemnify Plaintiff against all demands, costs, and charges, in relation thereto; and the said (). S. at or about the same time, indorsed such draft or bill, and the same was then taken away by the said T. T. in order for him to make use thereof, for or towards any of his then pressing oc- casions, as aforesaid ; and the said T. T. and one R. S. who was, or is pretended to have been his partner at that time, or one of them, accord- ingly, either paid away the said draft or bill as money, or otherwise, raised and received money by discounting the same; and they, or the said O. S. or one of them, afterwards paid, or caused to be paid, the said stun of £ , when or soon aft^r the same became dun, in discharge of the 166 BILLS UPON PROMISSORY NOTES. said draft or bill, in pursuance of the said promise or agreement of the said T. T. and O. S. and thereupon, or upon some other occasion, the said draft or bill was returned or delivered up to the said O. S. T. T. or R. S. or some, or one of them, and the same is now in their, or some, or one of their custody or power, and therefore they ought to deliver up the same to Plaintiff, to be cancelled ; and Plaintiff hath, at several times, applied, 5:c. to the said O. S. T. T. and R. S. to deliver up the same. And Plaintiff well hoped, &c. But now. Sec. Pretend, that Plaintiff, at the time of accepting the said draft or bill, or at some time, really had or received from them, or some or one of them, some considerable sums or sum of money, or some large quantity of deals, or some goods to some considerable value, as or for, or on ac- count of the consideration thereof, or otherwise ; that Plaintiff was then indebted to them, or some or one of them, in money, to some consider- able amount ; and that Plaintiff accepted the said draft, or bill on some such account, and not on such account as aforesaid. Charge contrary, which Defendants will at times admit, but the said T. T. and R. S. Pretend, that they, or one of them, paid some good or valuable consi- deration to the said O. S. for his indorsing the said bill or draft to them, or one of them, or that he was then justly indebted unto them, or one of them, in some considerable sum or sums of money ; and that he indorsed and delivered over the same to them, or one of them, in discharge of or by way of security for such debt, or some part thereof, and that neither of them, the said T. T. or R. S. had, before or at the time of such indorsement or payment of the consideration for the same, any notice whatsoever that Plaintiff had not a full and valuable consideration for accepting the said draft or bill, and that the said draft or bill hath ever since remained in their or one of their custody or power, and therefore the said T. T. and R, S. insists that Plaintiff is liable to pay the said sum of £ unto them. Charge contrarij, and particularly that no money whatsoever was really and honajide paid by or on account of them the said T. T. and R. S. or either of tiiem, to or for the use of the said O. S. as or for, or on account of the said O. S.'sj drawing or indorsing, or delivering the said bill or draft ; nor was any money whatsoever then justly due from the said O. S- to the said T. T. and R. S. or either of them : or at least the said indorse- ment and dtlivery of the said draft or bill was not made in or towards the discharge of or for security of any such debt, nor on any other account, er for any other purpose than as aforesaid. Charge, that the said T. T. and R. S. or one of them, before or at the time of the said (>. S.'s indorsing or dehvering the said bill or draft, or either of them, had notice, information, belief or suspicion, that Plaintiff BILLS UPON PROMISSORY NOTES. 157 had no consideration for accepting the same, but only accepted the same for such reason, and under such circumstances as aforesaid ; and particu- larly, that the said T. T. was present at the time when the said draft or bill was drawn, and accepted as aforesaid, and was privy to the whole of the transaction ; and therefore Plaintiff is advised, and humbly insists, that he ought not, in equity, to be subject to the payment of the said sum of £ , or any part thereof, but the said bill or draft ought to be deli- vered up as aforesaid. But, nevertheless, the said Defendants refuse to deliver up the same ; and they, or some or one of them, have or hath commenced an action at law against Plaintiff in his Majesty's Court of King's Bench, in the names of them the said T. T. and R. S. on Plain- tiff's acceptance of the said draft or bill ; and Plaintiff not being able to make any defence in such action, they have obtained final judgment there- on for the said sum of £ , besides costs, or threaten so to do. And they threaten to take out execution on such judgment, although no money whatsoever is, injustice or equity due to them, or any or either of themj from Plaintiff. All which^ &c. To the end, &c. )^.i 158 SRCT. VIII. — BILLS UPON MORTGAGE MATTERS. Bill by Heir at Law for Redemption of Freehold Lands. Humbly complaining, slioweth unto your T.ord-sliip, your Orator J. G, of, &c. that J. (I. the elder, late of, &c. but now deceased, and E. his wife, now also deceased, the late father and mother of your Orator, were in right of the said E. seised in fee-simple of, or otherwise well entitled to, two freehold fields, 6:c. and your Orator slieweth that the said J.CJ- the elder, and E. his wife, in or about the year , made some cotjveyanre and assignment of the said premises unto W. B. of, &c. the Defendant hereinafter named, by way of mortgage for securing the repayment of a certain sum of money, with interest, then advanced to the said J. G. by W. B. or by J. B. then of, &c. on the part of, and as the agent of the said W. B. ; and your, &c. that the said W. B. upon or soon after the making of the said security, entered into the possession of the said mortgaged premises, or into the receipt of the rents and profits thereof, and hath ever since continued in such possession and receipt, and the said W. B., or the said J. B. on his beiialf, also possessed himself of all the title deeds relating to the said premises ; and your Orator further sheweth, that the said J. G the elder, departed this lite in or about the year , and that the said E. G. having survived her said husband, departed this life on or about, &c. intestate, and without having made, after the death of her said husband, any conveyance or disposition of such right and interest as she retained at his death in the said premises, leaving your Orator, her eldest son and heir at law, who thereupon became entitled to the equity of redemption of the said mortgaged pre- mises ; and your, &c. that the said W. B. from time to time made some small payments to the said J. G. in his life-time, and after his death to the said E. G., out of the rents and profits of the said promises ; and the said W. B. applied the greater part of such rents and protils to his own use, and by means thereof the said W. B. hath been more than repaid the principal and interest due to him on the security of tlie said premises, and your Orator hath frequently applied to the said W. B. and requested him to come to an account for the rents and profits of the said premises, so received by him, and to pay over to your Orator what he should appear to havr- so received be} ond the amount of the principal and interest due to him. and to deliver up the possession of the said mortgaged pre- mises : and your Orator well hoped that the said Dotendant wonld havf rompliexl, &c. To the end therefore, »Vr. BILLS rPON MORTGAGE MATTERS^ 159 Prayer, Ajnd iliat the said Defendant may answer the premises, and that au af:coiint may be taken of what, if any thing, is due to the said Defendant for principal and interest on the said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises, which have been possessed or received by the said Defendant, or by any oilier person or persons by his order or for his use, or which, without his wilful default or neglect, might have been received ; and that if it shall appear that the said rents and profits have been more than sufficient to satisfy the principal and interest of the said mortgage, then that the residue thereof may be paid over to your Orator ; and that your Orator may be permit- ted to redeem the said premises, your Orator being ready and willing, and hereby offering to pay what, if any thing, shall appear to remain due in respect of the principal and interest on the said mort- gage ; and that the said Defendant may be decreed to deliver up possession of the said mortgaged premises to your Orator, or to such person as he shall direct, free from all incumbrances made by him, or any person claiming under him, and may deliver over to your Orator all deeds or writings in liis custody or power relating to the said mortgaged premises. And f«r further relief. J. L. Vray Suhpasna against W. B. N. B. This bill was filed by the heir at law conceiving, that some undue mfluence had been resorted to by the Defendant, in the possession of the estate, and therefore the object of the bill is to discover the Defendant's title, and it is framed in the shape of a bill of redemption, as for a mere bill of discovery it would have been liable to a demurrer; and to avoid that fate, the interrogating part must be confined to the mere facts stated, and not ask for tlif; Defendant's title. Bill of Foreclomre. Humbly complaining, sheweth unto your Lordship, your Orutor C L. of, &,<-.. that C. H. of, &c. the Defendant hereinafter named, being, or pretending t»,be, seised of, or well entitled in fee-simple to the reversion of and in the lands, hereditaments, and premises hereinafter mentioned, subject to a term of years from the day of , foi' wlwrh terra the said C. H, had demised llje ,said ^vemiseS; by xvny of 160 BILLS UPON M0RT6AGE MATTERS. raortgage, for securing the sum of £ then due to one I. W. and being in want of the sum of £ to pay ofl' the said mortgage and also of the further sum of £ for his own use, the said C. H. did, in or about the month of, Szc. apply to and request your Orator to ad- vance and lend him the said sum of £ , upon the security or mortgage of the said premises ; and your Orator having agreed thereto, did accord- ingly advance and pay the said smn of £ to the said I. W. and the said sum of c£ to the said Defendant, and thereupon, for securing the repayment of the said £ with interest for the same, at and after the rate of 5 per cent, per annum, in and by a certain indenture bearing date on or about, &c. duly made and executed by and between the said i. W. therein described, of , &c. of the first part, the said Defen- dant C. H. of the second part, and your Orator of the third part, after reciting an original indenture of mortgage of the said premises, and two several assignments thereof, it was witnessed, &c. but subject never- theless to a proviso or condition of redemption on payment by the said C. li. his heirs, executors, administrators, or assigns, unto your Orator, his executors, administrators, and assigns, of the said sum of £ , together with interest for the same, at and after the rate of 5 per cent, per annum, on the day of then next ensuing, as in and by, &ic. ; and your, &c. that the said sum oi £ , or any part thereof, was not paid to your Orator, or any other person on his account, at the time limited and appointed in that behalf, in and by the said indenture, but default was made in the payment thereof, whereby the legal estate and interest of and in the said tan yard and premises, for the residue of the said term of years, became vested in your Orator, redeemable nevertheless in equity, on payment of the principal and interest due, and to become due thereon ; and your, (Sec. that the whole of the said principal sum of £ being still due and owing to your Orator, together with a large arrear of interest thereon, your Orator hatli by himself and his agents, frequently applied to the said C. II. to pay to your Orator the said prin- cipal monies and interest, or else quietly and peaceably to deliver up to your Orator the possession of the said mortgaged premises, and to release all his right title and equity of redemption of and to the same, for the residue of the said term of years ; and your Orator well hoped, but now, &:c. iVe^crt''/s that your Orator never advanced the said sum of of , or any part thereof, on such security as aforesaid, but at other times he will admit the same ; and then he pretends that he halh fully paid the said principal money and all interest due thereon. Charges contrary. And the said Defendant at other times pretends that there are many other diarges, mort'/ai,<'.s, and incunibrances, all'eeting the said premises, made and executed by liiin, or some person or persons under whom he claims jiriorjty in point of lime to the albre^ald indenture, by the particulars BILLS UPON IIORTGAGE MATTERS. ICl uf'ieoi, or whcii, or by \vl/oni made, or for wliat consideration, or what js MOW due thereon, the said Defendant refuses to discover; all which, &c. to tlic end, &c. (^Ltterroffate to each fact.) And whether there are any other and what inorigages, charges, or incumbrances aflfecting the said mortgaged premises ; and that the said Defendants may set forth and discover the full particulars thereof, and when and by whom made, and for what consideration or considerations, and what is now due thereon, and to whom. Prayer. And that the said Defendant may answer the premises ; and that it may be referred to one of the Masters of this honorable Court, to take an account of what is due to your Orator for principal and interest on his said mortgage, from the said Defendant; and that the said Defendant may be decreed to pay to your Orator what shall be found due on such account by a short day to be appointed by this honorable Court in that behalf, together with your Orator's costs, and in default thereof, that tue said Defendant, and all per- sons claiming under him, may be for ever barred and foreclosed of and from all right atid equity of redemption of, in, and to the said mortgaged premises, or any part theieof, for the residue of the said term of years, and may deliver up to your Orator all deeds, papers, and writings in his custody or power, relating to or con- cerning the said mortgaged premises. And for further relief. Bill to foreclose and to redeem a Trust Term. States, that F. R. was seised in fee-simple of premises subject only to the payment of =£* , the portions of his sisters M. R. and A. R. by virtue of the will of tlieir father. States applications to H. B. for the £ agreement to bind the money and indentures of L. and R. States the advancing the £ and £ to H. C by the complainant, and £ to F. K. and the conveyance from B. to R. to the complainant. States, that F. W. of, &c. and S. J. late of, &c, intending to harass and perplex Oratrix, did, in Easter Term last, cause an action of trespass and ejectment to be brought in his Majesty's Court of K. B. for the recovery of the possession of the said mortgaged premises, and did cause declaiation therein to be delivered to R. M. tenant in possession of considerably the greater part of the said premises, to which ejectment, Oratrix, by rule of said Court of K. B. did cause herself to be m^de 22 ]02. BILLS UPON MOILTGAUi: MATTERS. Defendant in t!ic room ot" the c;i:^unl ejccloi;. ;iiid llie said cause i-oming on to be trisui at the last assi/.cs in and lor llie county ol" S.. the Jmy sworn for tiiat pur|)ose t term of years to tlieu}, of most part of the said mortgaged [vremisea, by the will of the said I. R. deceased, late father of the said F. U. deceased. States the trusts of the term. ."^tates that the personaliv, ami some piemises in possession of the Trustees were sufficient to answer trusts, aiui that they were actually an- swered. And Oratrix w» 11 hoped that the said F. K. would either have paid your Oratrix the said sum of ^£' , and the interest thereof, at the rate afoj^- fcaid, or that he and the said F. \V. v/ould have sufleied your (/ratrix peaceably and ([uietly to have enjoyed ihe posses^ion of the said pi'eniises, and for that purpose Oratrix lialh fre(juent!y applied hersell' to the said F. II. and recjuested him to ])uy the said sum of .t' , and the inteieL;t due for the same, or else to deliver possession quieily to your Oratrix of the said mortgaged premises, together with all deeds, iS.c. relating to and concerning the same, and to release all his right and equity of redemp- tion to the same premises, to your Oratrix and her heirs ; and your Oratrix hath also a})plied herself to the said F. W. and S. J. in his life- lime, to assign to her the said trust term of years, limited to theai by the willof the said 1. R. as aforesaid, the}' well i^nowing that the trusts of the said term were fully di;>charged. Ami yuur Oratrix well hoped, Arc. Pretends that the i)iemises were in mortgage to some other ])ersons, for recovery of some considerable sum of moiiey, and at the time the moi t- gage was made to the said 11. 13., he, llie said F. R. had only the equity of redempiion of the same. ChargcH, that no mortgage was made of the premises by the said F. R, or any other person, prior to the said mortgage to the said II. 13. or if any such there is, that the same is voluntary and fraudulent, and made \ulhout any consideration, but that the said F. ii. was seised and po^se5sed of the legal estate of and in the said premises, at the time of the execu- tion of the said mortgage to the said H. D. as aforesaid. Vreteii'U that he hath confessed judgments, iVc. «.Vc. And the said 1". W. as the surviving Trustee, insists he is enlilhd lo hold the premises i,o devised to them, the said F. W. and S. J., by the will of the said 1. R. as aforesaid, for tl>e remainder of the trust term of years, somelinK's pretending t'lere are several debts of the said I. R. undis- charged, but th;.' said F. V\'. refuses to discover the amount of the said pretended unsatiified dt.'bts of tlie said I. R. ov to whom or on what account tliev are due. oi how the same arc secured. BILLS UPON MORTGAGE ?,IATTEI15. 163 Charges, tliat all tlic drhls of the said I. 11, aro paid, aiul at other tiiiu's the said F. W. pretfixls that the IbrtiiDes of ihe said daughters ol" the said I. 11. the Testaloi'. directed to be raised by hi-i m ill as aforesaid, or some considerable part thereof, ^el remains unsatisfied, and a charge upon the said [)remises. Charges, that llie personal estate of tlie saiproi)riated fVn- payment of ihi' said Testator's debts, but also to have discharged the fortunes directed to have been raised tor the said Testator's tliree daughters, all of which your Oratrix charges, that if the said F. W. did not apjilv such sums of money as they received by the rents and profits of the said trust premi-es in discharge of the said Testator's debts, and other the trusts in llieni reposed, but dis]X)sed of t!ie same, or any part thereof", to or for any other purposes, that the said F. W., the surviving Trustee, ought to answer such sums as has been paid out of the rents ajoresaiil, out of his own proper ejects. Pretemh, that altiiough the trusts of the said term of years are fully performed and discharged, yet he is entitled to hold tht^ said pre- mises for t!je remainder of years for his own use and benefit, and that he will not assign the san^e ; and t!ie said M. M. pretends, t'lat she is entitled, to some wcvy consid("rable sum of money irom the said |)re- mises, by virtue of the will of her father, the said I. IL, not only on account of her own fortune, and the interest thereof", I)ut also on ac- count of D. W. deceased, late one of t'je daughters of th.e said I. I?., alleging that the said D. f'. did by some deed or writing, or b)^ her last will appoint the payment of X , being her fortime, to or in i"avor of her the said M. il. : and liie said iM. 11. insists lliat the said F. \V., the surviving Trustee, iseutided to hold tlie said |)remises unlJl such time as her said demands therein are fully satisfied and paid. Charges, that the said sum of £ hereinbefore mentioned to have been borrowed !>y the said F. R. from the said IT. 15. wr.s boirov legal estate and interest of and in the hereditaments tlierein mentioned, was then vested jointly witli and in tni:>t for the said M. W. of the onepart, andyour Oratrix of tlif oilier part. Reritjng', fv:c. (heing the mortgage deed of tlse security of C and interest, the snm lent to INI. W. the mortgagor.) And your, da-, that by indenlme of assign- ment, bearing date on or abont, 6cc. between, Src. (being an assignment of a term of years for further security,) as in and by, (S:c. And your, &c. tliat at the tin7e the said seveial mortgage securities were de- livered to \()ur Oratrix, or toiler solicitor, the title-deeds of tlie said mortgaged premises were not given iij) with them, but the solicitor or agent of the said INI. W., signed and delivered a memorandnin, in writing. in the words and figures, or to the purport and efliect following, (that is lo say,) I al of yoisr Oratrix's solicitor, and still per- sists in his rei'usal to deliver u]) the said title deeds; and the said M. \V. IJILLS UPON MORTGAGE MATTERS. 167 tlircatens and iiitrinci|:tal money and all interest due thereon. And yoiu", &;<:. tliat the said T. W. before he had received or been paid any par* of the said principal sum of £ , and on or about the day of , departed this life, haviuiT first duly made and published hislasi will and testament in writing, and thereby constituted and appointed your Orators the executors tliereot". as in, &c. And your, &c. that they have since duly proved the said will in the proper Kcclc^iastical Court, and have underiuk^'U the execution thereof, and have thereby become entitled to the said mortgage pre- mises for the rest and residue now to come and unexpired of the said several terms, subject to such red<"mption as aforesaid, and to have and receive the principal money and intrrc:;t due and owing thereon. And your, &c. that afterwards, and bcibre the said principal sum of £ , or any part thereof was paid ofi". and on or about the day of , the said M. E. having become a bankrupt, a commission of bankrupt issued under the great seal of Great Britain, (state the com- mission in the usual way) whereby the said (the assignees) became and are now entitled to the equity of redemption of the said mortgaged pre- mises, for the residue of the said several terms. And your, &:c. that the whole of the said principal sum of £ being now due and owing to your Orators as such executors as aforesaid, together with a large arrear of interest thereon, your Orators have caused frequent applica- tions to be made to the said IM. E. and the said , and have requested them either to pay and satisfy the said principal money and interest to your Orators, or otherwise to release and assign their equity of redemp- tion of and in the said mortgaged premises for the residue of the said terms, in the said indenture of mortgage mentioned to your Orators, and to deliver up to them the deed^ and writings relating thereto. And your Orators well hoped, &c. But now, &c. pretending that no such indenture of mortgage of such date, purport or efiect as aforesaid, was made or executed by the said JM. E. but at otjjer limes tijoy will admit the same; but then they pretend that the said M. E. previous to his bankruptcy, paid or caused to be paid, to the said T. W. in his lif<^-time, or to your (Jrators since the decease of the said T. W. the said sum of £ , and all interest due thereon, and that there is no sum of money due or owing to your Orators upon the security of the said mortgaged premise^, whereas your Orators charge, that the said sum of c£* and an arrear of interest thereon was due and owing to the said T. W. at the time of his decease, and that the said principal sum, together with a further arrear of interest, js now due and owing to your Orators, as such executors, upon the security of tlie said mortgaged premises, and by virtue of the said iiiflrnture ; and so the said confederates will sometimes admit, but then tlit-y give out and pretend, that there are many other BILLS UPON MORTGAGE MATTERS. 173 charges, mortgages, and incumbrances affecting the said premises, made and executed by the said JNI. E. and prior in point of time to that made by him to the said T. W. deceased, but the particulars thereof, or when, or to whom made, or for what consideration, or wliat is now due thereon, the said confederates refuse to discover. All which, &c. To the end, &c. Prayer. .^nd that it be referred to one of the Masters of this honorable Court, to take an account of what is due to your Orators, as such execu- tors as aforesaid, for principal and interest on the said security from tlie said M. E. to the said T. W. deceased, and that the said confe- derates may be decreed to pay to your Orators what shall be found due on such account by a short day to be appointed by this honor- able Court, in that behalf, together with your Orators' costs, and in default thereof, that the said M. E. and the said , and all per- sons claiming under him or them, may be barred and foreclo cd of and from all right and equity of redemption of, in, and to the said premises, or any part thereof, for the residue of the said several terms. And may deliver up to your Orators all deeds, papers or writings in their or either of their custody or power, relating to or concerning the same. And for further relief, &;c. J. L. Pray Subpoena against M. E. and . ^ill for an Account and Redemption of mortgaged Pre- mises, Plaintiff being Heir at Law of Mortgagor, and Defendants, Persons in Possession. Affidavit of Plain- tiff, that he has no Deeds of the Premises. Humbly complaining, sheweth unto your Lordship, T. G., of, &:c. the eldest son and heir at law of K. G, late of, &c. and who was the nephew and heir at law of H. G the elder, late of, &c. deceased. That the said H. G. the elder, was in his hfe-time, and at the time of his death, seised or entitled in fee-simple, subject to a mortgage terru of years, which by some mesne assignments or otherwise, has been assigned to, or vested in W. G the elder, M. G. and E. W. the Defend- ants hereto, or some or one of them, of or to divers messuages, tenenients and hereditaments, situate, &c. and elsewhere, of great yearly value, and particularly of several messuages, &c. thereto adjoining. And the said H. G. the elder departed this lifesome time ago intestate, and without issue, the said H. G. Plaintiff's late father, his nephew aiid hen at la^- 174 BILLS UPON MORTGAGE MATTERS. him surviving ; but the said II. G. the younger was in very narrow cir- cumstances, and not able to pay ofT the mortgage, which affected tiie said premises; and before the death of the said H. G. the elder, or at some other time, the mortgagee or mortgagees took possession of all his real estates, and he or they and the Defendants hereto have been in the pos- session thereof ever since, and they have paid off all, or nearly all the principal and interest due on the said mortgage. That the said H. G. the younger, departed this life or years ago, intestate, leaving Plaintiff, his eldest son and heir at law, and thereupon the said real estates descended to Plaintiff, subject to the said mortgage ; and Plaintiff, desirous of redeeming the same on payment of what, if any thing remained due by virtue of such mortgage, and of getting into possession thereof, hath frequently requested the said W. G. the elder, W. G. and E. W. to state an account of the principal money and interest due on the said mortgage, and also of the rents and profits of the said premises, received by the mortgagee or mortgagees thereof for the time being, and Plaintiff offered to pay to them what, if any thing should appear to be due to them on balance of such account. And Plaintiffs also requested them to deliver possession of the said premises to him. But now, &c. Pretend, that the said H. G. the elder, by some deed or deeds, or by his last will and testament in writing limited or devised the said premises or some part thereof in fee-simple, or for some other estate to the said Defendants, or some or one of them, or to some other person or persons under whom they, or some or one of them, claim or claims. But the said Defendants refuse to discover and set forth as tliey ought to do, the dates, and parties' names, and the names of the witnesses to such deed or deeds, and the date of, and the names of the witnesses to such will, and the short and material contents of such deed or deeds, or will. But the said Defendants will at other times admit, that the said II. G. the elder, died intestate, and without having otherwise disposed of the said premises. But then, they PrctaiU, ihiit Plaintiff is not the heir at law of the said 11. G. the elder, and that the person who was his heir at law at his death or some person whom they allege was entitled to the said premises in some manner, by some deed or deeds, agreement or will, conveyed, or agreed to convey, or devise the said premises and equity of redemption thereof, to them the said Defendants, or some persons or person under whom they claim, and that the said Defendants are absolutely entitled to the said premises. But they refuse to discover who was and is, as they allege, the heir at law of the said II. G. the elder and by what pedigree he or she appears or appear- ed so to be, and the persons or person who conveyed the said estates, or any of them to the said Defendants, or to the persons or per;»on under whom BILLS UPON MORTGAGE MATTERS. 175 they claim the same, or the date or dates of, and parties and witnesses names to the said deeds or deed, or agreement, or the date and the wit- nesses' names to the will, or the short and material contents, and the con- sideration of the deed or deeds, agreement or will, under which the said Defendants claim the said premises, by, from, or under the alleged will or deed of the said H. G. the elder, or such other person or persons as aforesaid. However, Plaintiff Charges, that he is the heir at law of the said H. G. the elder, Plain- tiff being the eldest son of the said H. G. the younger, who was the eldest son of G. G. who was the eldest brother of H. G. the elder. Charges, that if defendants shall pretend that they are purchasers of the said premises for a valuable consideration, then that such per- sons or person who sold or conveyed the same to them the said Defen- dants, or to those under whom they claim, could not at the time of such sale, make out a legal title to the said premises or any part thereof, and that it so appears by some abstract or abstracts of the title in the possession or power of the said Defendants ; and at the time such sale or conveyance was made, the said Defendants, or some or one of them, or those under whom they claim, or before the conveyance was executed, or the consi- deration money was paid, had some knowledge, notice, or belief, or sus- picion, or had some reason to know, believe, or suspect, or had been in- formed that the person or persons who sold or conveyed the said premises, had no title, or a deficient or doubtful title thereto, and that the heir at law of the said H. G. the elder, was not a party to the said sale or convey- ance, and that on account of the badness or doubtfulness of such title, the said confederates, or those under whom they claim, paid a very small or tnconsiderable sum as a consideration for the said premises, and that they, or some or one of them, received some indemnity from the person or per- sons who so sold or conveyed the said premises, in case Plaintiff, the heir at law -of the said H. G. the elder, should assert his title to the said premises and succeed therein. And the said Defendants, or some or one of them, or some other person or persons on their or one of their behalf, have or has frequently desired Plaintiff to release his right and title to the said premises, and have offered him money for so doing. Pretend, that they claim title to llie said premises by other means, not herein before mentioned, but by what means and what deeds, and of what date, and when executed, and when and where, and by whom, and in whose presence such deeds were executed and attested they refuse to dis- cover. And they have all the deeds and writings relating to the said pre- mises in their custody or power, and they threaten or intend to nonsuit Plaintiff in case he shall attempt to recover possession of the said premises by ejectment. AU whicii, &c. To the end, &c. 176 BILLS UPO:^ MORTGAGE MATTERS. Prayer. That an account may be taken of what, it" any thing is due for princi- pal and interest, on the security of the said premises. And that an account may also be taken of the rents and profit of tlie said pre- mises received by the said Defendants and those under whom they claim. And that upon payment of what, if any thing shall appear to be due to said Defendants on the balance of accounts, Plaintiff may be at liberty to redeem the premises. And that the Defendants may deliver the possession of the said premises to Plaintiff, and also deliver up to him all deeds, papers and writings in their possession or power relating thereto, and assign the said sum to, or intrust for Plaintiff. And for further relief. Pv. R. In Chancery. Between G. G Plaintiff, and W. G. and others, Defendants. G. G. the above named Plaintiff maketh oath, that he, this deponent, hath not, nor to the best of his knowledge, remembrance or belief, ever had all or any of the deeds, evidences and writings, relating to the estate in question in this cause, and which are mentioned in this deponent's bill, exhibited in this honorable Court, against the said Defendants, nor doth this deponent know where the said deeds, evidences and writings, or any of them now are, unless they be in the custody or power of the said De- fendants, some or one of them. Bill to foreclose, and to have a Term to attend the In- heritance declared to he in Trust for the Mortgagee. Humbly complaining, sheweth unto your Lordship, your Orator R. S, ©f, &c. that in or about the year , P. J. of, &c. being or pretended to be seised in fee, or of some other good and sufficient estate of inherit- ance, of and in, &,c. hereinafter mentioned, and having occasion for money, did af)ply to your Orator, and desire your Orator to lend him the said P. J. the sum of i^ , and in order to secure the repayment of the same with interest, after the rate of, Set. did propose to mortgage to your Orator the said manor, &c. which he did affirm to your Orator were free from all prior incmnhrances, save a term of years in some part of the same premises, which, as the said P.J. informed your Orator, was then vested in L. M. of, '.Vc. in trust for the said P. J. his heirs and assigns; niLLS UPON MORTGAGE MATTERS, 177 and to be disposed of and assigned as he or tliey should direct. And your, i-Vc. that 3'our Orator said P. J. and liis wile of the one part, and your Orator and one \. I>. of, Ac. since decenscd, of the other part. Tiie saitl i*. .1. for and in considei ation, &c. (net forth mortgage deed) as in and by, Sec. And your Orator charges, that the said sum o( £ , or any pait thereof, was not paid to your Orator or any person on his behalf, according lo the said proviso in the said inden- ture of release contained, at the time therein mentioned, or at any other time. And your. Sec. that the said P. .J. having a further occasion for money, did, some time in or about, &c. again apply to your Orator to lend him the further sum oi £ , and in order to secure the repayment of the same with interest, after the rate oi £ offered to charge the said mortgaged premises therewith, which your Orator consented to, and ac- -'.ordingly did advance, lend, and pay to the said P. .F. the said sum of £ , and for securing the repayment thereof wilii interest as aforesaid, by hidorsement made upon the back of said indenture of release, bearing date, S:c. reciting, Sec. as in and by the said indorsement at the back of the said release, &c. And your, &c. that the said siun of £ or any part thereof, hath not been paid to your Orator, neither was the said sum of c^ or any part thereof, paid to your Oiator, according to the condition in the said in part lecifed bond, 4ation in writine;, bearing date on or about the said dav of , whereby he bound himself, hi>. heirs, ex- ecutors^ and ailministrators, unio the said W. K,, his executors, admi- nistrator=., and assigns, in the sum of' X' , with a condition thereunder written tor inakinfv the same void on payment iiy the said .). ]?. his heirs, executors, and administrators, of the sum of c£ , with interest lor the same, at tlie time am! in the manner thciein mentioned, as in and by the said bond or obligation which i'^ now in the custody or power of the said W. K. v/hen the same shall be piodaced to this honorable Court will more fully and at large appear. And your, eVc. that the said 1. R. after- wards dulv made his last wiii and testament in willing, bearing date on or about the da}' of , and executed in such manner and form as bv law is required to pass real estate, wlicreby, &c. (gave per- ■ onals to (Jrr.trix, subject to his delMs, c^'c. and devised his lands, i^'c. to his brother and heir at law, W. H., appointed Oratrix sole executrix,) as in and by, Sec. And your, iS:c. that the sa'd \S'. J^. afi.-r the death of the jaid Te; tator, entered into and upon the >aid copyhold estates in the said manor of i*. R., so morttajdcd as albrcbaid to the said W. K., and became and was entitled to the < 'juity of redemption thereof, subject to the said mortgage ; and the said W. R. being so seised, departed this life on or about the day of , has ing hrst duly made his last will and testament in writing, and thereby deviled all his right and interest in and to the said coi)yhold premises unto '1". G. and J. P., two other Defendants hereinafter named, and their heirs, in trust, to sell the same, and to apply the produce thereof in manner therein mentioned, and he thereby a])- pointed the said T. G. and J. P., the executors thereof, as in and by, <5l'c. And your, 6ec. that after the death of the said J. K. and in or about the dav of your <.)rator anil Gratiix intermarried together. And your, Sec. I IK > airy. And whether the said T)^U ndants T. G., J. P., and W. K., or some, or one, and which of them, did not make a sale of the said co|)yhold [jre- mises, so mortgaged as aforesaid, to the said W. K., at or about the time and for the price hereinhefore niciitioued; or al or about some and liU.LS UFON MORTGAGE MATTKRS. ISl what other time, and for some aiul what other price in particular ; and that the said Defendants may set forth the particulars of such sale, and to whom sold, and when arid by whom the money arising therefrom waa received, and liow the same was applied and disposed of ; that the said Defendants T. (}., J. P., and VV. K., on or about the day of , joined in a sale of the said copyhold premises so mortgaged as aforesaid, to t!ie said Defendant W. K. by the said T. R. at and for the price or sum of -i.' , or at and for some other sum greatly exceeding the anidunt of the said principal, and of all interest due thereon, to the said Defendant W. K. ; and forasmuch as the said copyhold estate and pre- mises were devised to the said \V. K., by the said T. R , expressly sub- ject to the mortgage so made to the said W. K. as aforesaid, and then an actaal subsisting charge thereon, your Orator and Oratrix well hoped that the said Defendants W. G. and J. P., would have applied as much of the said money as was necessary in satisfaction and discharge of the said njortgage ; and that the said VV. K. would have delivered up to your Orator and Oratrix, to be cancelled, the aforesaid bond conditioned for the payment o{£ , and interest, which was given by the said J. R., deceased, to the said Defendant W. K. as and for a collateral security lo the said copvhold premises. J'ut now so it is, &c. the said J. G. and J. P. have only applied so much of the money arising from the sale of the said copyhold premises as was necessary to discharge the sum of £ , and interest part of the said mortgage to the said W. R., and absolutely refuse to apply any further or other sum in discharge thereof, 3on)etimes pretending that llie said copyhold premises were by the terms of the said mortgage to stand as a security for the sum of £ only, and that the rest of the said loan of £ from the said VV. K. lo the said J. R. was secured only by the bond of the said J. R. whereas j'our Oiaror and Oratrix expressly charge, that the whole of the said sum of £ was secured by the said mortgage, and that so it would appear, as well by the aforesaid surrender, as well by the mortgage deed, or other instrument accompanying the same, if the said W. K. would produce them, but which he refuses to do. Charge, that the said bond was given by the said J. R. only as a collateral security to the said mortgage, in case the money arising from the sale of such premises should be in- sulTicient to pay the said sum of £ and interest. Charge, that even in case the said bond was not so given, yet that by the terms of the will oi the said J. R. the said T. G. and J. P. took the premises expressly ;?ul)ject to the said mortgage, and liable thereto in the first instance. And so the said Defendants will at limes admit, but nevertheless under such and the like pretences they persist in their said refusal. Charge^ that the said Defendant W. K, joined with the said Defendants T. G. ind J. P. in the sale of the said copyhold premises, without insisting on "he full satisfaction of the principal and interest due to him on the mort- 182 BILLS UPOiN MORTGAGE MATTERS. gage thereof, in consequence of some secret and fraudulent agreemcnlh made between the three said Defendants for the purpose of charging your Orator and Oratrix with the money secured by the said bond ; and the said W. K. hath commenced an action on the said bond against your Orator and Oratrix in his Majesty's Court of K. B., and threatens to proceed to judgment and execution thereof. All which, &c. To the end therefore^ &c. Prayer. And that the said Defendants may answer the premises ; and that an account may be taken of the principal and interest due to the said Defendant W. K. on the aforesaid mortgage of the said copyhold premises, made to him by the said J. R. deceased at the time of the sale of the said copyhold premises, and that the same, or so much thereof as may be necessary, may be applied in satisfaction and discharge of the principal and interest which shall be found to be due as aforesaid to the said Defendant W. K. ; and that the bond executed as aforesaid by the said J. R., as and for a collateral se- curity to the said W. K., may be delivered up to your Orator and Oratrix to be cancelled ; and that in the meantime the said W. K. may be restrained, by the injunction of this honorable Court, from all further proceedings at law against your Orator and Oratrix on the said bond. And for further relief, &c. J. L. Proi/ Suhpcena as^aiiist T. G. and J. P., and Injunction aiid • Subpctna against W. K. Bill by Heir of Mortgagor for Redemption of Copyhold Premises, and an Account of Rents and Profits received by Mortgagee. Humbly complaining, &c. that E. M., late of, &c. widow, and now deceased, the mother of your Orator, was, In, and before the month of , seised to her and her heirs, according to the custom of the manor *f B. in the county of S., of and in a certain copyhold or customary mes- suage or tenement and premises, with the appurtenances, holden of the said manor and lying in, &c. And your, &c. that the said E. M. having occasion to borrow a sum of money, did, on or about the, &ic. apply to I. C. M., of, &c. the Defendant hereinafter named, to advance and lend her the sum of £ upon mortgage of the said copyliold mes- suage or tenement and premises, and the said I. C. M., having consented «o to do, your Orator's said late mother duly surrendered the said copy- BILLS UPON MORTGAGE MATTERS. 183 hold or customary messuage and tenement, according to the custom of the said manor, to the use of the said I. C. M., and his heirs, upon con- dition, nevertheless, that the said surrender should be void upon re- payment by the said E. M., her heirs, executors, administrators, or assigns, to the said I. C. M., his executors, administrators, or assigns, of the said sum of £ , with interest for the same after the rate of 5 per cent, on the, &c. And your, &c. that the said sum of £ not being repaid within the time mentioned in the said condition, the said I. C. M. was, on or about the day of , admitted tenant of the said premises, according to the custom of the said manor, to hold to him the said I. C. M., his heirs and assigns for ever, but subject, nevertheless to the equity of redemption thereof by tlie said E. M., her heirs or assigns, as in and by the said surrender and ad- mission, reference, &c. And your, &c. that the said I. C. M., upon his advancing the said sum of ^ to the said E. M., entered into pos- session of the said mortgaged premises, or into the receipt of the rents and profits thereof; and the said I. C. M. hath ever since been and now is in such possession or receipt, and by means thereof, and of money from time to time advanced and paid to him by the said E. M., the said 1. C. M. hath been greatly more than repaid the said principal sum of £ , and interest thereon. And your, &c. that the said E. M. de- parted this life on or about the day of , leaving your Orator, her youngest sgjn and heir at law, and heir according to the cus- tom of the said manor of B., and thereupon your Orator became entitled to the equity of redemption of the said mortgaged premises. And your, &c. that he halh, by himself and his agents, repeatedly applied to the said I. C. M., and requested him to come to an account with your Orator for the monies from time to time advanced to him in payment of the said mortgage money by the said E. M. in her life-time, and for the rents and profits of the said mortgaged premises received by him in the life-time of the said E. M. and since her death, and to pay over to your Orator what upon such account he shall appear to have received beyond the said principal sum of £ , and interest thereon, and to surrender the said copyhold premises to the use of your Orator and his heirs. And your Orator well hoped, &c. But now, «&c. pretends, that the monies which were paid to him on account of the said mortgage by the said E. M. in her life-time, and the i-ents and profits of the said mortgaged premises received by him, or which, but for his wilful default or neglect, he might have received since he first entered into the possession of the said premises as aforesaid, have not been more than sufficient to satisfy and keep down the interest from time to time accruing due on the said principal sum of -£ . Charge contrary, and so it would appear, if the said Defend- ant would set forth, as he ought to do, a full true and particular account lJ8ei BILLS UPON MORTGAGE flL\TTERS. of all and every the monies received by him in or towards satisfaction of the said mortgage money, and when and from whom received ; and ylso a full, true, and particular nroount of the rents and profits of the said premises, since he first entered into the possession of the said premises as aforesaid received by him, or which, but for his wilful default and neglect might have been received by him, and whom, and from whom, and on what account respectively received ; and your Orator further charges, that in order that the said Defendant might have no pretence to keep from your Orator tlip possession of tlie said mortgaged premises, your Orator, in the month of last, tendered to him the full sum o( £ , subject to a future account as to the receipts of the said Defendants by the means aforesaid ; and your Orator, at the same time. earnestly desired the said Defendant to furnish him with the particulars of the sums received by him, by the rents and profits of the said pre- mises or otherwise, in or towards satisfaction of the said mortgage monies and ofibred to pay immediately any balance that should be due beyond the said sum of £ , if any such there were; but the said Defendant refused . to accept the said sum of =£ , or to deliver to your Orator any account of his receipts by the rents and profits of the said premises, or otherwise, and told your Orator that he might lile a bill in equity against him as soon as he pleased. AH which. &<:. Prayer, And that the said Defendant may answer the premises ; and that an account may be taken of the rents and profits of the said mortgaged premises which have been received by the said Defoiidant since his possession thereof as aforesaid, or which, but for his wilful default or neglect, might have been so received : and also an account of all other the sums which have been received by the said Defendant in or towards satisfaction of the said mortgage money ; and that an account may alio be taken of the principal and interest which hath accrued due on the said mortgage ; and iii case it shall appear that tlie rents and profits, and other receipts of the said Defendant, ex- ceed the said princij>al and interest, then that the said Defendant may be directed to pay to your Orator such excess, your Orator l)eing ready and willing, and hereby offering to pay to the said Defendant what, if any thing, shall on the balance of the said accounts appear to remain due on such mortgage to the said Defendant ', and that the said Defendant may surrender the said mortgaged pre- mises unto your Orator, or such other person as he shall appoint, free and clear of all incumbrances, done by him, or any person claiming by, from, or under liiin : and may deliver up to your BILLS UPON MORTGAGE MATTERS. 185 Orator all title-deeds or writings in his custody or power relating to the said mortgaged premises. And for further relief. Bill to have Goods re-delivered, which had been deposited as a Security for Money lent. Humbly complaining, &c. your Orator A. S. of, ion named and authorized, or how otherwise ; and whether your Orators were not duly chosen as- signees of his estate and eflects : and whether the usual assignment of his pergonal estate, and a bargain and sale of his real estate was not duly made to your Orators by the major part of the commissioners in the said commission named, or how otherwise: and whether the said manor and other premises were not duly conveyed to the said E. R. by such in- dentures of lease and release as aforesaid, or by some other and what in- dentures j and whether the said price or sum of £ , or some other niLLS UPON BANKRUPT MATTERS. 189 and what sum was not paid by the said E. R. to the said T. H. and his said copartners, or one and which of them ; and whether the said T. H. and his said copartners did not afterwards pay the sum o( £ , or some other and what sum, part thereof, as or for the consideration or vahic of the Hfe estate to which the said E. A. H. was entitled in re- mainder in the said manor and premises as aforesaid, or how otherwise; and whether the said T. H. and the said Defendants his copartners have not ever since retained, and do not now retain in their hands, the residue of the said sum of .i' , and if so, why and for what reason; and whe- ther, after satisfying their own debts, the same doili not amount to be- tween ij' and i£' , and to what sum in particular; and whether they have not from time to lime, or at some time or times, and when, mixed such residue, or some and what part thereof, with their, or some, or one, and which of their own monies ; and whether they have not, and when, and for liow long, employed the same, or some and what part thereof, in their trade or business of bankers, or otherwise, and how made interest thereof, or some and what part, or how otherwise; and whether your Orators have not made such applications to the said De- fendants as hereinbefore mentioned, or some other and what applica- tions to such or the like, or some othei' and what effect ; and whether they iiave not respectively refused to comply therewith, and if so, why and for what reason ; and that the said Defendants may set forth a full and true account of all and every the deahngs and transactions between the said Defendants, or either of th.em, and the said C. H. II. and of what is due to the said Defendants in respect thereof; and also a full and true account of ail and every the sum pud sums of money which have or hath been received by them, or either of them, or by any other person or persons by the order or for the use of them, or either and which of them, for or in respect of the produce or money arising by sale of the said manor and premises, or any part thereof, and when and from whom ail and every such sums were respectively received, and how the same were applied. Prayer. And that the said Defendants may answer the premises; and tliat an account may be taken of the monies received by the said Defend- ants T. H. and his said copartners, from the sale of the said manor and lands of G. and of their application thereof; and also an ac- iount of the dealings and transactions of the said Defendants with the said C. H. II. and of the debt due to them in respect thereof, and secured by the aforesaid manor and premises ; and that the balance which siiall appear to be hip shall seem meet and this case may require. May it please, &c. Pray Subpoena against M. B. H. B. R. A. and W. B. 197 SECT. X. — BILLS FOR CREDITORS. Bill hy Simple Contract Creditors, against Administrator^ and in case Personals insufficient, to have Assets mar- sludled. Humbly complaining, shew unto your Lordship, your Orators A. B. of, &c. and C. D. of, &c. on behalf of themselves, and all other the simple contract creditors of E. F. late of, &c. deceased, who shall come in and contribute to the expense of this suit, that the said E. F. departed this life on or about, &c and was in his life-time, and at the time of his death, justly and truly indebted unto Plaintiff A. B. in the principal sum of £ , with an arrear of interest thereon, upon and by virtue of his the said E. F.'s promissory note of hand in writing, bearing date, &c. for the securing the payment of the said sum of £ to said Plaintiff, with interest for the same, at and after the rate of ^ per annum, as by said promissory note, &c. That the said E. F. in his life-time, and at the time of his death, was also justly and truly indebted unto Plaintiff C. D. in the sum of =£■ and upwards, for goods sold and delivered, and monies, paid, laid out and expended, to and for his the said E. F.'s use. That the said E. F. was in his life-time, and at the time of his death, possessed of, interested in, and entitled unto a very considerable personal estate, consisting of divers estates and premises, held upon lease for terms or a term of years, and other chattels, real and personal, and of various other particulars to a large amount and value in the whole, and more than sufficient to have paid and satisfied all his just debts and funeral expenses. And the said E. F. was also in his life-time, and at the time of his death seised, or well entitled unto some considerable real estates, lands, tene- ments, and hereditaments, situate, &c. and particularly of or to divers freehold houses or tenements in L. aforesaid. And also to a c]o;ie or parcel of land in F. in the county of L. of some considerable yearly value respectively. That the said E. F. being so seised and possessed departed this life at or about, Sic. intestate and without issue, leaving E. F. of, &c. his eldest brother and heir at law, and S. F. of, &c. his widow and relict, and that the said S. F. upon the death of the said intestate, applied for and obtained letters of administration of his personal estate am! effects to be duly granted to him, by and out of the proper Ecclesiastical Court ki that behalf, and the said S. F. thereby became and is the legal per- sonal representative of the said E. F. 198 BILLS FOR CREDITORS. That under and by virtue of such letters of administration, she the said S. F. or some person or persons by her order or for her use, hath or have possessed, got in, and received the whole or the greatest part of the said intestate's personal estate and effects, consisting of the various par- ticulars aforesaid, and to a considerable amount in the whole, and suffi- cient or more than sullicient to satisfy and pay all his the said intestate's funeral expenses and just debts. And the said E. F. the said intes- tate's heir at law, upon, or soon after the decease of the said intestate, entered upon and posstrssed himself of all his real estate and premises, and hath ever since been in such possession, and he or some person or per- sons by his order, or for his use, hath or have ever since been in the re- ceipt of the rents and profits thereof, and the said E. F. now is in such, possession and receipt. That since the death of tiie said intestate, the said E. F. hath paid unto Plaintiff A. B. the sum of £ , in part discharge of his said debt or sum of £ , but that the remainder thereof, together with an a«rear of interest on the whole of the said debt, now remains justly due and owing unto Plaintiff A. B, and the whole of the said sum of c£ and upwards, does also still remain justly due and owing unto Plaintiff C. D. from the said intestate's estate. That the said S. F. having possessed the said intestate's personal estate and effects, as aforesaid, have applied, &:c. and requested her to pay and satisfy unto Plaintiffs their said respective demands, by and out of the said intestate's personal estate and effects, if the same were sufficient for that purpose. And Plaintiffs have also applied unto said E. F. and requested him, that if the said Testator's personal estate and effects were not suffi- cient, by reason of any application thereof, or of any part thereof, to the payment of any specialty creditors of the said intestate, that he would consent that the deficiency thereof might be raised by sale of a compe- tent part of the said intestate's real estate, or that the said intestate's real and personal assets might be marshalled, and his personal estate and effects applied in payment of his simple contract debts, and his specialty debts paid out of his real estate. And Plaintiffs well hoped, &c. But now, &c. Preteml, that the said E. F. deceased, was not at the time of his death indebted to Plaintiffs or either of them in any sum or sums of money whatsoever, and that he never made or signed any such promissory note of hand to Plaintiff A. B. as aforesaid. Charge contrari/, and that the said intestate did duly make and sign such promissory note of hand in writing to him, for securing his said debt theretofore justly due and owing thereon, with interest, at and after the rale as before mentioned. Cfiar^re, tliat the whole of their said several debts and demands were, BILLS FOR CREDITORS. 199 rogelher with a large arrear of interest on Plaintiff A. B.'s said debt, justly due and owing to PlaiiitifT at the time of his the said E. F.'s de- cease, and which said Defendants will at other limes admit, but then S. F. Pretends, that personalty insufficient, and applied in payment of spe- cialties, but what specialty debts in particular she pretends to have paid thereout, refuses to discover. Charge contrary , and Plaintifls are advised, and humbly insist, that if said personal estate and effects of said intestate have been exhausted by the said S. F. in paying or discharging of any of his specialty debts, then that Plaintiffs, and the other simple contract creditors of the said in- testate, ought, and are entitled, in a court of equity, to have the said in- testate's assets marshalled, and to stand in the place of such speci- alty creditors, upon his real estates, and to have satisfaction for their re- spective demands thereout to such amount, and for so much as such spe- cialty creditors shall have received out of the said Testator's personal estates, and that such real estate, or a competent part thereof, ought to be mortgaged or sold for that purpose ; and the said intestate's per- sonal assets ought to be applied solely in discharge of Plaintiffs, and other the simple contract creditors of the said intestate. But, neverthe- less, the said Defendants, under such or the like pretences as aforesaid, refuse to pay Plaintiffs, or either of them, their said demands ; and the said Defendants refuse to come to an account for the real or personal assets of the said intestate. Charge, that said Defendants E. F. hath possessed the title deeds and writings belonging to and concerning the real estate of the said intestate, and which he refuses to produce or discover. All which, &c. To the end, &c. Prayer. That an account may be decreed to be taken of the monies due to Plaintiffs, in respect of their said several demands ; and that an ac- count may be also taken of the said intestate's personal estate and effects possessed or received by, or come to the hands of the said Defendant, S. F. or of any other person or persons, by her order or for her use. And also, an account of the rents and profits of the said intestate's real estate, possessed or received by or by the order, or for the use of the said Defendant E. F. ; and that Plaintiffs may be paid their said respective demands out of the said intestate's per- sonal estate, if the same shall be sufficient for that purpose, and to pay all other the said debts of the said intestate, as well by specialty ^s by simple contract. But if the same shall be insufficient for that purpose, then that the said intestate's specialty debts may be raised and paid otit of his real assets, and the simple contract debts of 200 BILLS FOR CREDrXORS. the said intestate, paid out of i)is personal assets; and that proper directions may be given in that behalf. And if any of the said intestate's estate shall be, or appear to have been applied in pay- ment of the specialty debts of t.he said E. F. the intestate, then that Plaintiffs, and all other his simple contract creditors, may be declared to be entitled to a satisfaction out of his real estates, and to such amount as specialty creditors shall have received out of his the said intestate's personal estate and effects ; and that a sufficient part of the said real estates may be mortgaged or sold, for raising the same ; and that all proper parties may be decreed to join in such mortgage or sale ; and that, by and out of the monies to arise therefrom, Plaintiffs, and all other the simple contract creditors of the said in- testate, may be respe<:tively paid and satisfied their said several de- mands and their costs of this suit ; and that all the title deeds and writings relating to the said estate may be produced, and all proper and necessary directions given for effectuating the several purposes aforesaid, and the payment of Plaintiffs' said demands. And for further relief, &c. E. K. A Bill by Specialty Creditor, against Administrator and Heir at Law of Intestate, for Sale of Mortgage Pre- mises, to pay off Mortgage, as far as they will extend ^ and in case of Deficiency, to he admitted a Creditor on the general Assets of Intestate ; and cdso for Pay- ment of an Annuity, secured by other Premises, and that they may be sold, and in case of Deficiency, to be admitted a Creditor on the general Assets of Intestate. Judgment having been entered up. Humbly complaining, sheweth unto your F^ordship, your Orator, H. of, &c. on behalf of him«oll and all other the creditors, Arc. that by in- dentures of lease and release, bearing date respectively the and days of , your Orator, in consideration of a certain post obit security, for the sum of £ tlierein mentioned, conveyed to the said T. II. the fee-simple and inheritance of freehold unfinished houses, situate and being, &'c. And your Orator sheweth, that by in- denture, bearing date on the same day of the said T. H. in consid<^'raiion of the sum of .£ , then lent and advanced by your Orator t'» the said T. II. granted and demised to your Orator of the btfi>rc mentioned houses, for the term of years by way of mortgage. KILLS FOR CREDITORS. 201 And the said indenture contains the usual covenant for payment of the said £ and interest, and the usual proviso of redemption. And your Orator slieweth, that by a certain other indenture, bearing date the same day of tlie said T. IT. granted and demised the other of the before mentioned houses, for the term of years, in trust for the further and better securing to your Orator, either from the receipt of the rents, or by sale or mortgage of the said last mentioned pre- mises, an annuity or clear yearly sum of cf , for and dtuing the natural life of your Orator, which had been before granted to your Orator by the said T. II. by a certain indenture, bearing date on or about the day of , as in and by the said several indentures, reference, &c. and your Orator further sheweth unto your Lordship, that the said T. H. depaited this life on or about the day of intestate, and without issue, leaving T. H. of, &c. his only brother and heir at law, and the defendant hereinafter named, him surviving; whereupon the reversion of the said houses at aforesaid, descended to and became vested in the said T. H. subject to the said two terms aforesaid. And your Orator sheweth, that upon, or soon after the death of the said in- testate, the said T. H. obtained letters of administration of the goods, chattels, personal estate and eftects of his said late brother, to be granted to him by and out of the proper Ecclesiastical Court, and, by virtue tliere- of, hat!) possessed himself of the personal estate and effects of the said intestate to a considerable amount. And your Orator sheweth, that the said intestate, in his life-time, paid the interest due to your Orator upon the said mortgage, up to the day of , and the arrears of the said annuity up to the of , but the whole of the said principal sum of £ , together with all interest thereon, from the said day of , now remains clue to your said Orator, as well as all the arrears of the said annuity, from the said day of And your Orator sheweth, that he is a judgment creditor of the said T. H. in respect of the said arrears of the said annuity, by virtue of a warrant of attorney, made and executed by the said T. II. at the time of granting the said annuity, and on which judgment hath been duly entered up by your Orator. And your Orator sheweth, that the said houses, comprised in the aforesaid mortgage, being an insufficient security, your Orator is advised that he is well entitled to have a sale of the said houses, and to have the produce thereof applied, as far as the same will extend, in payment of the said principal sum of £ and interest, and to be ad- mitted as a specially creditor against the general assets of the said intes- tate, for the deficiency ; and that he is also well entitled to have a value put upon his said annuity, and in like manner to have a sale of the said other houses, demised as aforesaid, for the security of the said an- nuity, and to have the produce thereof applied, as f:-ir as the ' auie wiil 27 302 BILLS FOR CREDITORS. extend, in satisfaction of the value which shall so be set on the said an- nuity, and of the arrears due thereon, and to be admitted as a judgment creditor against the general assets of the said intestate, in respect of any deficiency. And your Orator sheweth tliat he hath, by himself and his agents, repeatedly applied to the said T. H. for the purposes aforesaid. And your Orator well hoped, &c. But now, &c. absolutely refuses so to do. And the said Defendants, at some times, pretend, that the per- sonal estate of the said intestate is small and inconsiderable. Whereas your Orator charges the contrary thereof to be the truth ; and so it would appear, if the said Defendant would set forth, as he ought to do, a full and true account of the said personal estate and effects of the said intes- tate, and of his application thereof. All which, &c. To the end, &c. Prayer. And that the said Defendant may answer the premises ; and that an account may be taken of the principal sura and interest remaining due to your Orator on the aforesaid mortgage security, and that the said mortgaged premises may be sold, and the produce thereof ap- plied, as far as the same will extend, in satisfaction of what shall be so found due ; and that 3'our Orator may be admitted as a creditor against the general assets of the said intestate, in respect of the defi- ciency ; and that a value may be set upon the said annuity of £ , and that an account may also be taken of the arrears of the said an- nuity, and that the said houses, demised as aforesaid, for the security of the said annuity, may in like manner be sold, and the produce thereof applied, as far as the same will extend, in satisfac- tion of the value so set upon the said annuity, and of the said ar- rears, and that your Orator may be admitu'd as a creditor against the general assets of the said intestate, in respect of the said deficiency, and that an account may be taken of the said intestate's personal estate and effects, possessed or received by the said Defendant, or by any other person or persons, by his order, or for his use ; and als» an account of the said intestate's funeral expenses and just debts, and that the said personal estate and cflects may be applied in pay- ment of what shall remain due to your Orntor. in resjject of the mat- ters aforesaid, and of the other creditors of the said intestate, in a due course of aumiui«tralion. And for further relief, &c. J. L. BILLS FOR CREDITORS. 203 Bill by a Bond Creditor, for payment out of a Trust Estate, devised on Failure of personal Assets, that Deeds, l^c. may be set out. Humbly complaining, sheweth unto your Lordship, your Orator, A. B. a creditor of the right honorable R. C. heretofore of, &c. and late Lord Chipf J'i^rofits thereof, as a salary to the Algebra BILLS FOR CREDITORS. 209 Lecturer in the University of Cambridge, appointed the said T. P. to be the manager of the said estates, and the receiver of the rents and profits thereof, at a yearly salary of i,' . And, your, Sec. that the last ac- count settled by the said T. P. with your Orators, was, in respect of the said estates, up to and upon the balance of such accounts, there was due for the said T. P. to your Orators, as trustees as aforesaid, the sum of £ . And your, &c. that the said T. P. continued to be llie receiver of the rents and profits of the said estates until his death, which happened about the month of , and t!ie said T. P. not only received the rents of the said estate, which amounted to the yearly sum of ^ , from up to inclusiv^e, but the said T. P. also received from the sale of timber, cut and f^^llod on the said estates in the month of , the sum o( £ , and several other sums of money from other falls of timber on the said estates, be- tween and the time of his death. And your, &c. that the said T. P. remitted, in respect of ids said receipts, subsequent to , several sums of money, amounting together to £ , and no more ; so that at the death of the said T. P. a very considerable balance remained in his hands, in respect of the rents and profits of the said estates, and the produce of tlio said timber. And your, &c. that the said T. P, duly made his will, &.x. [appointed Defendants executors, who prov- ed will, and possessed personals, &c.] And your Orators have repeatedly applied, &c. and requested them to come to an account with your Orator in respect of the rents and profits received by the said T. P. from and timber money of the said estate; and if the said Defendants shall not admit assets, &c. tiiej) that an account, &c. and to pay unto your Orators what, upon such account, should appear to be due to them from the estate of the said T. P. And your Orators well hoped, &c. But now. Sec. Pretence personals insufficient. Charge contrary. All which, J. B. The prayer will be, that the bond shall be delivered up, and an injunction to stay proceedings at law. Bill to Iiavr, a Bond ddivcred up to be cancelled^ which ivas obtauird by a Misrepresentation, and Injunction from proceeding; on the said Bond. Humbly complaining, shew unto your Lordship, your Orators I. L. of, &c. farmer, and I. L. jun. of, &c. the son of your Orator I. L, that T. C. late of, &c. but now deceased, and who was a coach-master, and also a farmer, did, in or about the begiin)ing of the year dispose of* part of his business as a coach-master, and also his stage-horses to your Orator I. L. jun. for the sum of £ . And your Orators shew, that the said T. C. then occupied farms, at, &c. which were the pro- perty of F. S. ; and the said T. C. represented to your said Orator, that he was entitled to the said farms, for the residue of a term of years, commencing, as to the meadow land at Christmas , and as to the rest of the premises, at Candlemas , at the annual rent of BILLS TO CANCEL DEEDS, &C. 239 ^' . And the said T. C. proposed to sell his said interest in the said farms to your said Orator, for the residue of the said term of years, at the price of i^ . And your Orators shew, that your said Orator I. L. jun. thereupon agreed with the said T. C. to purcliase his said interest in the said farms, for the said sum of £ ; and your said Orator not being prepared to pay tlie money, it was furtlier agreed between them, that your Orator I. L. should join your Orator I. L. jun. hi a bond for securing the said sum of £ to the said T. C. And your Orators shew, that Mr. H. the attorney of the said T. C. liav- ingby his directions prepared a common money-bond, from your Orators t> him the said T. C. for the payment of the said sum of £ , and interest, your Orator I. L. objected thereto, and desired to have the tiansacJion stated in the bond, to which the said T. C. answered, that it mattered nothing between them, but your said Orator not being satisfied with such answer, desired the said Mr. H. to make a minute in writing of the consideration for which the bond was really given as aforesaid, and the said Mr. H. accordingly made such minute in writing, with the con- sent of the said T. C. and then read the same over to your Orators, and the said T. C. who, iipon hearing it, observed, that it was perfectly right, and your Orators then executed the said bond, which bears date, In or about the tnonth of . And your, &c. (hat upon the execu- tion of the said bond, your Orators entered into the occupation of the said farms, and have ever since occupied the same, but the said T. C. never made or executed any actual assignment of his said pretended Interest therein, to your Orators or either of them. And your, &c. that the said T. C. some time in the month of , departed this life, having first duly made and published his last will and testament in writing, and thereof appointed E. T. of, &:c. and A. G. of, &c. the Defendants hereinafter named, executors of his will, who thereupon duly proved the same hi the proper Ecclesiastical Court, and undertook the executorship thereof, and thereby became his legal [)ersonal representa tives. And your Orators shew, that in the month of last, the said E. T. as steward of the said F. S. served your Orators with a notice to quit the said farms at the end of the then current year, insisting, as the fact appears to be, that the said T. C was only tenant from year to year of the said farms, and had no power to dispose of the same to your OratoiN, for'the residue of the said term of years. And your Ora- tors shew tliat the said bond for £ and interest having therefore been given by your Orators to the said T. C. without consideration, and by reason of the false representations of the said T. C. that he had such interest in the said farms as aforesaid, your Orators have, by them- selves and their agents, repeatedly applied to the said E. T. and A. G. and have requested them to deliver up to your Orators the aforesaid bond to be ainrelkd. And your Orators well hoped, &c. And although 238 BILLS TO CANCEL DEEDS, icc the said Defendants well know that the said bond was given by youi- Orators as a consideration for the supposed interest of the said T. C. in the said farms, for the residue of the said term of years, yet Defendants have lately commenced an action at law in his Majesty's Court of K. B. by special testatum capias upon the said bond, and have caused your Orators to be held to bail thereon, and the said Defendants threaten, and intend to proceed to judgment and execution on the said bond, unless they are restrained therefrom by theinjuncfion of this honor- able Court. To the end therefore, &c. J. L. N. B. The prayer will be, for the bond to be delivered up, and an injunction to restrain proceedings at law. 241 SECT. XH. — BILLS FOR BOND CUEDITORS, &C. Bill by Bond and Simple Contract Creditors against an Executor. Humbly complaining, shew unto your Lordship, your Orators T. C. of, &c. and P. M. of, &c. executors of the last will and testament of R. B. late of, &c. clerk, deceased, and as such bond and simple contract creditors of I. T. late of, &c. deceased, and also your Oratrix M. N. of, &c. another creditor of the said I. T. by simple contract, on behalf of themselves, and all other the creditors of the said I. T. who shall come in and seek relief by and contribute to the expense of this suit, that the said I. T. having borrowed of, or being indebted unto the said R. B. in the sum of £ , he, for securing the payment thereof with lawful interest for the same, duly executed a bond or obligation in writing, bearing date, whereby he bound himself, his heirs, executors, and ad- ministrators, unto the said R. B. his executors, administrators, or assigns, of the said sum of ^ , with interest for the same, at the rate of £ per cent, per annum, at a time therein mentioned, and long since past, as in and by, &c. That the said principal sum of £ and all the interest thereof, from the, &c. now remains justly due and owing by virtue of the said bond. That the said I. T. on or about, &c. having occasion to borrow a cer- tain sum of money, on that day wrote and sent a letter to tlie said R. B. by C. R. then the said I. T.'s clerk, the said I. T. being an attorney, in the words and figures following, (that is to say,) &c. and in consequence of such letter, the said R. B. did, on the, &c. advance unto the said C. R. for the use of the said I. T. the further sum of £ , for which the said C. R. signed and gave a receipt lo the said R. B. in the words and figures following, that is to say ; as in and by the said letter and receipt, &c. That the said sum of £ , and ail interest thereon, now remain justly due and owing by virtue of the said letter and receipt. That the said I. T. having, on or about, &c. occasion to borrow a cer- tain sum of money, he on that day wrote and sent by tiie said R. C. his clerk, to Oratrix, in the words and figures following, that is to say, &c. in consequence of which, Oratrix, did, on, &c. advance unto the said R. C. for the use of the said I. T. the sum of £ , for which the said R. C. then gave Oratrix the following receipt, tliat is to say, Sec. as in and by the said letter and receipt, &c. 242 BILLS FOR BOND CREDITORS, &C. That the said I. T. departed tliis life, on or about, Sec. intestate, being indebted to the said R. B. and Oratrix in such sums as aforesaid, and to some other persons, and lie left M. T. the widow, and M. T. the younper, his only child and heir at law, and soon after his death, letters of his per- sonal estate and efiects were granted to the said M. T. the widow, by the proper Court. That the said- I. T. was at the time of his death possessed of. or entitled to a considerable personal estate, and seised or entitled in fee- simple, of, or to divers freehold messuages, lands, tenement?, and heredi- taments, situate. Sec. of large yearly value in the whole; and she the said M. T the widow, possessed all the said personal estate and effects, or so much thereof as she was able. And she the said M. T. the younger, or one of them, entered on the said real estate, and ever since have or hath been, and now are or is in possession of the receipt of the rents and profits thereof. That the said R. B. departed this life, on or about, cSl'c. having before his death duly made and published his last will and testament in writing, bearing date, &c. and thereby gave all the residue of his pci^-oiial estate, ante Plaintiffs, equally to be divided between them, and appointed them executors thereof. That shortly after his death, they proved the same in the Consistory Court of the bishop of N. and thereby became, and now are entilled to the sums of money due to the said R. B. as aforesaid. And IMaintiOs have at several times applied to the said M. T. the widow, and M. T. the younger, to pay the said several sums of money due to Plaiatifis respec- tively as aforesaid. And Plaintiffs well hoped. Sec. But now, &:c. Pretend, that the said I. T. did not execute such bond as aforesaid, and that neither he, nor tlie said C. R. signed such writings as aforesaid, or eitlier of them, and that no such sums as aforesaid were really advan- ced or lent to, or received by him the said I. T. or that, he in his life-time fully paid and satisfied all such sums, and all the interest thereof, and that therefore no money was reimining due from him, in respect thereof, at the time of. his death. Charge contrary, and so the said Defendants will at other times admit, but then the said M. T. the widow, pretends, that the personal estate and effects which the said L T. was possessed of, entilled to, or interested in, at the time of his death, were but of inconsiderable value in the whole, and that only some small part thereof was possessed by her the said M. T. the widow, or by her order, or for her use, and not near su/Ticient to satisfy Flainlilfs' said demands. Charge contrary, and particularly, that he w as at the time of his deatli possessed of divers messuages, &:c. for some long term of years, at small rents, and that the said M. T. the widow, is now in the possession and BILLS FOR BOND CREDITORS, Scc. 2-13 receipt of the rents and profils of all such messuages, &:c. unless she has sold the same, in which case a large sum of money has been received by her, or by her order, or for her use, as a consideration for the sale thereof, and he was also entitled to considerable suras of money due on bonds, mortgages, and other seciuities ; but in order to conceal the real value of such personal estate, the said M. T. the widow, hath not exhibited inlo the proper Ecclesiastical Court, or caused to be made, any appraisement or inventory thereof, or if any such were exhibited or made, llie same was defective, and many particulars of the personal estate which he was really possessed of at time of his death, were wholly omitted therein, and most of the particulars which are contained in such appraisement or inventory, are therein apj)raised at sums much less than the same respec- tively were really worth, or than they were, or might have been afterwards sold for. And Plaintifls are advised that the personal estate of the said I. T. ought to be first applied to pay the whole of the debts owing by him at the time of his death, on specialty, in preference to all his debts on simple contract, and that if such personal estate be not sufficient to pay the whole of his debts, then Plaintiffs and his other specialty credi- tors are by law entitled to be paid the remainder thereof out of his freeliold estate, and Oratrix and his other creditors on simple contract are entitled in equity to a satisfaction of their respective debts out of his f;-eehoId estate, so far as iiis personal estate may be exhausted by his spe- cialty creditors to the prejudice of his creditors on simple contract, and such real estate ought to be sold, and the rents and profits thereof receiv- ed since his death ought to be accounted for. But then the said M. T. the widow, and xM. T. the younger, Pretend, that most of the messuages, &'c. whereof the said 1. T, was in possession at the time of his death, are copyhold, and that such parts thereof as are freehold were settled for the benefit of them, or one of them, and that therefore no part thereof is subject to the payment of his debts, either in law or equity. Charge contrary, and that the said Defendants refuse to discover the particulars and nature of such messuages, &c, or the particulars of any settlement or settlements. And at some times, the said M. T. the widow claims to be entitled to dower out of all, or some part of such freehold estates. Plaintiffs insist that she is not entitled to dower out of any part thereof, the said I. T. having only an efjuitable estate therein, or some other estate whereof she is not dowable. Claim some other right or interest to or in the said freehold messuages, &c. or part thereof, but they refuse to discover the particulars thereof, or how or in what manner they make out the same. Pretend, that there are or is some other mortgages, &c. ; and under such or the hke pretences, or others equally unjust and unreasonable. 244 BILLS FOR BOND CRECITORS, ^C. they the said M. T. the widow, and the said M. T. the younger, refuse to pay the monies due to Plaintiffs respectively as aforesaid, or any part thereof, or to sell the said freehold messuages, &c. or any part thereof, for such purpose. And they having got into their possession, custody, or power, the deeds and writings relating thereto, they refuse to produce the same. All which, &c. To the end, &c. Prayer. That an account may be taken of the money due to Plaintiffs re- spectively for principal and interest as aforesaid, and of the other debts owing by the said I. T. at the time of his death ; and als6 an account of the personal estate and effects of the said I. T. pos- sessed or received by, or by the order, or for the use of her the said M. T. the widow ; and that such personal estate may be ap- plied in payment of his debts in a course of administration, and that the remainder of such debts may be paid out of his real estate, and the rents and profits thereof become due since his death, and possessed or received by, or by the order, or for the use of thera the said M. T. the widow, and M. T. the younger, or either of them, and that for that purpose such real estates, or a competent part thereof, may be sold, and that all proper parties may join in such sale, and that an account may be taken of all sucli rents and profits ; and in order to such sale, that all the tille-deeds and writings relat- ing to such real estates may be produced. And for further relief, &c. R. P. Bill by a Bond Creditor against Trustees, under an As- signment of joint and separate Debts for an Account of separate Estate of Obligor^ and to be jmid, pari passu, with the other Creditors, and also an Account of the joint Trust Property. States, that t'le Defendants J. S., &c. who had for some time carried on the trade or business of bankers in copartnership together, in New Bond-street aforesaiti, under the stile or firm of Messrs. S. and Co. did, in or about the month of , become embarrassed in their circum- stances, and stopped payment. That by a certain indenture of bargain and sale and assignment, of three parts, bearing date, &c. and duly made and executed by and be- BILLS FOR BOND CREDITORS, &C. 245 tween (the Defendants, the bankers, assigned over their estates and pro- perty to Defendants T. &c. the trustees, for the benefit of creditors, and upon the trusts therein mentioned.) That by a certain other indenture, bearing date on or about the , and duly made and executed by and between, &c. (a further assignment,) as in and by, &c. That Plaintiff was a party to, and signed the said trust deed as a joint creditor of the said Defendants J. S. &c. for the sum of £ and upwards, which was then justly due and owing to Plaintifl' from ihcm on ihe balance of his banking account. That he was at the same time a joint and separate creditor of the said Defendants J. S. &:c. upon the joint and several bonds of the said J. S , Sec. together with one G. T. S., who was, at the time of executing of such bond, carrying on trade and commerce in co- partnership with the said Defendants J. S. &c. conditioned for re-trans- ferring to Plaintiff at the time therein mentioned, and long since past, the sum of £ of certain stock therein mentioned, which Plaintiff had lent to the said banking-house, for payment in the mean time to Plaintiff of the dividends that would have accrued due to Plaintiff on the said stock, if the same had not been transferred by him. That the said Defendants I. T. Sec. took upon themselves the execu- tion of the said trusts, and by virtue thereof possessed themselves oC all the said trust property, and have by sale thereof, and by collecting in the debts due to the said banking-house and otherwise, received monies to a very large amount. That the said trustees never, until the month of last, made any dividends of the said trust effects, and then divided only in the pound to the joint creditors of the said banking-house. That they had long before in their hands a much larger sum of the joint property than was necessary to have made a much more consider- able dividend, and they have also long had, and now have in their hands, very large sums of money arising from the separate estates and effects of the said Defendants J. S. &c. and particularly of the said Defendant J. S., but all such monies being deposited in the banking-house of, &c. of which the said Defendant I. T. is a partner, and the said I. T. being the trustee who has chiefly acted in the said trust, monies have been per- mitted to remain in the said banking-house of the said Messrs. &c. with a view to the private advantage of the said banking-house. That the trust funds in the hands of the said trustees would have been greatly increased, but that the said trustees, under pretence of some custom or usage amongst bankers as to short bills, paid over to certain country bankers, or permitted them to receive the same, several sums of money, amounting in the whole to £ and upwards. 2^ BILLS FOR BOND CUKDIIORS, icc. That such payments were matie with a view to give a prelercuce to such country bankers, or some of them, with whom the said trustees, or some or one of them, were c^was in some manner connected. That there, are various parts of the said trust effects, to tlie amount of £ and upwards, which have not been received, and by reason o( the negligence of the said trustees, have become in a doubtful state. That it was not required or expected that the creditors of the said Defendants J. S. Sec. who had security for their debts, should become parties to the said trust indentures, and Plaintiff therefore having, in re- spect of the said joint and several bond of the said J. S. &:c. a collate' ral security by the assignment of certain mortgages on the property of P. B. esq. at, &c. and by a lien on an assignment of certain legacies payable at the death of a Mr. A., and known in the transactions of the said house of S. and Co. by the term of the Berkihire legacies ; Plain- tiff had been party to the said trust indentures only in re.'pect of tl|e sum of £ and upwards, due to him on the balance of his banking account, and not in respect of the said joint and several bond of the said house. That learning that the said Defendants I. T. &c. had in their hands very large sums of money arising from the separate estate of the said Defendant J. S. unapplied by them to the purpose of their trust. Plain- tiff, as a sejjarate creditor of the said Defendant J. S. by virtue of the said joint and separate bond, caused the same to be attached in tiic hands of the said trustees, by a proceeding in the lord mayor's court of Lon- don, in or about the month of That PlaintitYafterwards withdrew the said attachment, in consequence of two agreements in writing, one of which was signed by the said De- fendants L T. &c. and the other of which was signed by W. L. as the solicitor of your Orator, and such agreements were in the words and figures, or to the purport and effect Adlowing, that is to say, [state them,) as in and by, Sec. That although the said trustees did in the month of in tiie said agreement mentioned, declare the said trust to be perfected, and did then make such divideml of in the pound, on the joint estate as herein before stated, yet the said trustees have rendered n© account to Plaintiff of the separate estate of the said Defendant J. S., nor have made to him any payment in respect of his said bond, altliough they have, and then had in their hands, much more than sufficient to pay Plaintiff in full in respect of his said bond, and to pay in full all other, if any, the separate creditors of the said Defendant J. S. That he hath by himself and his agents, since the said day of repeatedly applied to, and requested the said Defendants I. T. S:c. to come to a just and fair account with Plaintiff, in respect of the BILLS FOR BOND CREDITORS, SlC 247 separate estate of tlie said Defendant J. S. and to pay to Plaintiff what is due to liim on the said bond pari passu, with the other separate cre- ditors of the said Defendant J. S., and Plaintiff hath in like manner ap- plied to the said Defendants to come to a just and fair account with Plaintiff and the other creditors who were parties to the said trust, for all other the sums of money received by them, or eitiier of them, under and bv virtue of the said trusts. And Plaintiff well hoped, &:c. Pre- tence insufficiency. Charges contrary, &c. and so it would appear if the said Defendants the trustees would set forth, as they ought to do, a full, true, and par- ticular account of all and every the said trust estates and effects pos- sessed or received by them, or any, or either of them, or which, but for their wilful default, they might have possessed or received, and of their application thereof. Charges, that the said Defendant J. A,, party to the said trust inden- tures, had, before the making thereof, been found and declared a bank- rupt, and an assignment of his estate and effects had been made to the said Defendants E. H. and T. S. together with IT. E. of, &c. but 9i the time of executing the said trust indentures, it was expected that the said commission would be superseded, and it was thereby provided, that if the said commission was not superseded within a certain time therein mentioned, and long since past, that the said indentures should be con- sidered as void against the said Defendant J. A. but should nevertheless be in full force with respect to all other the parties thereto, or to such effect. Charges, that the said H. E. was soon afterwards removed from being such assignee, and the said Defendant I. T hath been duly chosen as- signee in his stead, and a proper assignment of the estate and effects of tiie said Defetidant J. A. hath been executed unto the said I. T., toge- ther with the said Defendants E. H. and J. S. Charges, that the said Defendants E. II., J. S., and I. T., as such as- signees or otherwise, claim to be interested in the execution of the trusts of the said indentures. Charges, that the said Defendant J. S. is now resident at IM. in the Easi Indies, and the said Defendant G. P. at the island of M. or at some other places beyond the seas, out of the Jurisdiction of this Court. All which, &c. {Interrogate, S^c.) Prayer. And that the said Defendants may set forth a full, true, and particular account of all and every the said trust estate and effects, and all the particulars whereof the same consisted, and the quantities, qualities, full, real, and true values of all and every soch particu- 248 BILLS FOR BOND CREDITORS, &Ci lars which have been possessed or received by, or come to the hands of the Defendants the trustees, or of any other person or persons by their, or any of their order, or for their, or any of their use ; and how and in what manner, and when, and where, and by, and to whom, and for how much the same and every part thereof have been sold and disposed of, and what parts thereof, and to what value and amount, now remain undisposed of, and what are become thereof. And that the said Defendants may answer the pre- mises. And that an account may be taken of the separate estate and effects of the said Defendant J. S. which have been possessed and received by the said Defendants the trustees, and also an account of the separate debts of the said Defendant J. S. and that Plaintiff in respect of his aforesaid bond may be paid from the separate estate of the said Defendant J. S. pari passu, with his other separate creditors. And that the said deed of trust may also in all other respects be established and carried into execution, by and under the direction of » this Court, and that an account maybe taken of all and every other the trust estate and effects which iiave come to the hands of the said Defendants the trustees^ or of any or either of them, or of any other person or persons by their, or any or either of their order, or for their, or any or either of their use, or which, without their wilful neglect or default, might have been received by them. And that an accoimt may also be taken of the payments and disburse- ments of the said Defendants the trustees, for and in respect of the matters aforesaid, and that some proper person may be appointed to receive and get in the outstanding joint and separate estate and effects of the parties aforesaid. And for further relief. Bill by a Bond Creditor against Executor of Obligor for satisfaction out of real and personal Estate^ and against Co-obligor, to supply the Deficiency. Humbly complaining, shew unto your Lordship, your Orators A. S. and R. P., both of, &c. bankers and copartners, that T. T. late of, &c. deceased, and F. J. of the same place, hosier, the said T. T. and F. J» being in the said T. T.'s life-time copartners in trade, in or about ihe, &c. having occasion for the sum of £ , applied to and requested your Orators to lend them the same, and your Orators lent and advanced them such sum of c£ , and for securing the repayment thereof with interest, the said T. T. and F J executed a bond to your Orators, bearing date, &c. whereby they l)ound themselves, <^-c. (state bund in the usual way,) as in and by, d'c. And your, Arc. that the said T. T. and F. J. or either BILLS FOR BOND CREDITORS, &C. 249 of them, did not pivy unto your Orators the said principal sum of £ , or any part thereof at the time mentioned in the condition of the said bond, or afterwards, and the said principal sum and an arrear of interest for the same remained due to your Orators on the said bond from the said T. T. and F. J. at the time of the death of the said T. 'T. and still remains due to your Orators. And your, &c. that the said T. T. was in his life-time, and at the time of his death, seised in fee-simple of, or well entitled to, some freehold messuage, lands and tenements, subject, as it- is alleged, to some mortgage or mortgages of part thereof, and seised to him and his heirs of, and well entitled to, certain copyhold messuages, cottages, and tenements, according to the custom of the manor of which the same were holden, and which had been surrendered by him to the uses of his will; and possessed of, and well entitled to, or interested in a very considerable personal estate, consisting of, &c. and of divers other efifects, to a considerable aniount or value in the vvlwle ; and being so, seised of or entitled to such freehold and copyhold estates, and being of sound and disposing mind, memory, and understanding, the said T. T. in or about, &c. duly made and published his last will and testament, in writing, and which was signed and published by him, and attested in such manner as by law is required for devising freehold estates of inhe- ritance and he thereby first ordered and diiected that all his just debts should be fully paid and satisfied, and subject thereto he gave and de- vised, &c. (stale loill) as in and by, «fec. And your, &c. that the said Testator departed this life in or about , without having revoked or altered his said will, without issue, leaving the said S. T. his wife, and the said M. T. his sister and heir at law, and also his heir by the custom of the manor of wliich his said copyhold estates were holden ; and the said S. T. upon or soon after his death, duly proved the said will in the Exchequer Court of York, being the proper Ecclesiastical Court, and took upon himself the execution thereof; and she, or some person on her behalf, or with her permission, by virtue of the said will or the pro- bate thereof, upon or soon after the said Testator's death, entered upon, and took possession of, all his freehold estates by his said will devised to her for her life, and of v. hich she hath ever since been, and now is, in possession, and in the receipt of the rents and profits thereof, and pos- sessed himself or herself of all the personal estate and efTect?. of the said Testator to a very considerable amount ; and she thereout, or out of the produce thereof, paid the said Testatoi's funeral expenses, and all, or most of his debts, your Orator's said debt excepted ; and the said JVI. T. and the said Testator's mother, upon or soon after his death, entered upon and took possession of the said co|)yhold messuage or tenement devised to her for her life as aforesaid. And your, &c. that the said principal sum of ,£ remaining due and owing to your Ora- -tors, with an arrear of interest, and your Orators having frequently since .83 250 BILLS FOR liOiND CUKDiTORS, &,C. tlie said Testator's death, by themselves and then- agents, applied to the said S. T. as his personal representative, and requested her to pay the said bond-debt and interest. And yonr Orators well hoped tliat she would have paid the same accordingly, and that in case of any deficiency of the said Testator's personal estate, the same would have been an- swered and made good out of the said freehold and copyhold estates, as injustice and equity ought to have been the case. But now so it is, &c. absolutely refuses so to do. And pretends that the said Testator at the time of his death was indebted to several persons besides your Orators, on bonds and specialties, and otherwise, in several considerable sums of money, and that the said Testator's personal estate and eflects which have been paid by her order, or for her use, were inconsideiable and in- sufficient to answer and satisfy such oilier debts by specialty, and the said Testator's funeral expenses and testamentary charges, and other charges respecting the administration of his estate and effects, and some of his debts ; and she also pretends, that there is not any part of the said Testator's personal estate and effects outstanding and undisposed of, or unpossessed of, or unadministered by her, except what may be coming from the said F. J. in respect of the said copartnership in which the said Testator was engaged with him, and that she hath used her best endea- vours, and taken all due care and diligence to settle the accounts of the said copartnership with the said F. J. to obtain payment from him of what is coming tlierefrom to t!ie said Testator's estate, but hath not been able as yet so to do. And she also pretends, that the said Testator was not, at the time of his death, seised of or entitled to, or interested in, any fr< ch.«ld lands, tenements, or hereditamerits, or if he was, that she or any j^erson on her behalf, or claiming under her, has not been, nor is in possession of the rents and profits tliereof, or at least that she is entitled to the rents and profits thereof for her life. And your Orators having in Easter term last, brought an action on the said bond against the said Defendant J. T. as executrix as aforesaid, in his Majesty's Court of K. B. at Westminster, the said Defendant liath put in a plea to the said action, and pleaded that, &c. and thereupon the said A. S. and D. S. who survived the said IM. S., lor the recovery of the said debt, in Easter term aforesaid impleaded tiie said Defendant as executrix of the said T. T. for the sum of X upon the said writing obhgatorv iu the saiil Court of K. B., and stand judgment against her, and that the said judgment remained unsatisfied, and that the money secured by the said bond remains due and owing to the said A. S. and D. S. as surviv- ing obligees, siie not having possessed assets of the said Testator suflicient to satisfy the same, nor having paid the same or any part thereof. Charge contranj, and charge tiiat tlie said Testator, at the time of his death was possessed of or entitled to, a considerable personal estate and effects and more than sufficient to satisfy his funeral exnenses and debts, BILLS FOR BOND CREDITOHS, &:c. 251 or at least his debts by speciahyj and this the said Defendant, or some person by lier order, or for her use, liath possessed or received, or without her wihul neglect or defauU jnight have possessed or received, the whole of such personal estate and eflects, and that a considerable part of the said bond debt on which the said judgment hath been re- ceived has been satisfied, and that little, if any, remains due in respect thereof. But your Orators charge, the said Defendant S. T. hath wasted and misappUed part of the said I'estator's personal estate, and has made divers payments thereout which ought not to have been raaile thereout, and hadi permitted parts of the said Testator's personal estate to be possessed or received by other persons as a legacy, or in satisfaction of debts by simple contract, and so the same would appear if the said Defendant would set furtii a full, just, and particular account of all the said Testator's personal chattels and eflects possessed by her, or by any person or persons on her behalf, or for her use, or by her jjermission ; and would set forth how she has sold and disposed of, and applied the same, and of the produce of the said Testator's personal estate and eflects remaining outstandmg and unpossessed of by her, but tiiis she refuses to do ; and in case the said Testator's personal estate shall not on a fair account to be taken thereof, be suflicient to answer your Orators' said debts, your Orators insist that the deficiency ought to be made good out of the said Testator's freehold and copyhold estates, and the same, or a sufficient part thereof, ought to be sold for that purpose j but this the said Defendant, S. T. and J. P. and M. his wife, W. T. T. R. and M. T. severally refuse to consent to, although they have not any title to the said freehold and copyhold estates, or any part thereof, e.xcept under the said Testator's will ; and the said S. T. and M. T. refuse to aocounl for the rents and profits of the said estates received by them, or for their use or to apply the same in or towards the payment of your Orators' said debt. And W. T., J. R., M. T., J. P. and AL, his wife, severally pretend that the said Testator's personal estate and eflects are suflicient to an- swer and satisfy your Orators' said debt, and all the other debts, and the}' therefore object to any sale being made of any of the said freehold and copyhold estates, for payment of your Orators' debt. And the said seve- ral Defendants, or some of them, at times, set up divers claims to the said freehold and copyhold estates, in opposition to the said v^ill. And they at times pretend and insist that the said F. J. as a co-obligee on the said bond, or as the surviving partner of the said Testator, ought to pay your Orators the said bond debt ; but the said F. J. pretends and insists that the said Testator, or his estate has had the benefit of the said sum of £ , the consideration of the said bond, and that he has not any effects of the said Testator in his hands, coming to the said Testator's estate, and therefore that the bond ought to be paid by the said S. T. out of the said personal estate; or in in case of a deficiency of such personal 262 BILLS FOR BOND CREDITORS, hc. estate, out of the said freehold and copyhold estates. Whereas yourOra-' tors insist, that in case of any deficiency of sitch personal estate, to sa- tisfy the said bond debt, the said F. J. ought to answer and pay the same, and make good the said defiriency, but he refuses or di^clines so to do. All which, Sec. To the end, &c. Praijer. And that an account mav be taken by and under the direction and decree of (his honorable Court, of wliat is due for principal and interest on the said bond ; and that an account may al-o be taken of the personal estate and effects of the said Testalor, possessed by or come to the hands of tlie said S. T. or any person by her order, or for her use, or with her permission, or which, without her wilful default or neglect, might have been possessed by her ; and that she may be decreed to pay your Orators what shall appear to be due and owing" to them for princip£' > BlLLb FUR liOiND CKEDITOKS, SiC 263 on a bond or obligation given by the said A. W. to your Oratrix bearing flate on or about the ■* , in the penalty of =£ , conditioned (or the payment of £ on the day of , with inte- rest, after tlie rate oi £ per cent, and the same, together with tlie in- terest accrued tliereon, is still due and owing to your Oratrix. And your Oratrixfurtlier shewelh, &:c. tliat the said A. W. being thus indebted and possessed of a very considerable personal estate, and greatly more than sufficient to pay his Just debts, and being also seised, posseiseenses. and this the said L. B. W. will at other times ad- mit ; but then he pretends that he cannot sell any part of the real estate of the said A. W. without the concurrence of the said other Defendants, who refuse to concur therein without the sanction of this honorable Court. All which, &c. To the end, therefore. Prayer. And that the said Defendant, L, B. W. may admit assets, or set forth an account of the personal estate and efl'ects of the said A. W. come to his hands or possession ; and that an account of what xi due to your Oratrix, for her said debt, and the interest accrued due thereon, may be taken. And if the said L. B. W. shall admit assets, then that the same, when so ascertained, may be paid to your Oratrix out of the personal estate and effects of the said Testator; and in case Uie said L. B. W. should not admit assets, then that an account may be taken of the personal estate and effects of the said Testator, come to the hands or power, or possession of the said L. B. W. And in case it should appear that the said personal estate and effects are not sufficient to pay your Oratrix's said debt and interest, then that the said term, devised to your Oratrix by the said will of the said Testator, may be sold by and under the decree of this honorable Court. And for further relief. .T. A. Fray Suhpmnn agrtinH tht: heirs, and Jj. B. W. Bill to have a Bond, and other Seciiriiies, delivered tfp, Part of the Consideration being Money ivon at Play. That Plaintiff, C. some time in or about, &c. was in company with T. B. of &c. the Defendant hereto, at the house of one Mr. D. in &c. and dice being introduced, Plaintiff set down to play with dice with the Defendant, and thereupon the Defendant, at such meeting, won of Plain- tiff, by playing at dice, the sum of , and Plaintiff being after- wards, and in or about, &c. indebted to the said Defendant in a sum of money for clothes, which the Defendant had made for Plaintiff and ano- ther person, at the instance and request of Plaintiff, and he, the Defend- ant, having satisfied and discharged the debt and costs incurred in an ac- tion at law, in which he had been bail jointly with Plaintiff, Defendant caused Plaintiff to be arrested, and held to bail, in an action at law for recovery of the money due to him as aforesaid, for clothes; and Plaintiff BILLS FOR BOND CREDITORS, &C. 255 being at tliat time unable to pay or to advance the same, Defendant pro- posed and ofi'ered to drop tiie said suit, and to discharge the said arrest in case Plaintitit' would enter into and execute a bond or obligation to him, tlie Defendant conditioned for the payment, as well of the said sum of , won by him at dice as aforesaid ; as also of his said other demands, amounting to the sum of =£ in the whole, and accordingly TlaintifTwas prevailed upon to execute, and did actually execute a bond or obligation, bearing date, &c. conditioned for the payment to the De- fendant of the sum of £ , by instalments at the several days, and in manner therein mentioned. That part of the consideration of the same bond or obligation was the said sum of £ , won by the said Defendant of PlaintifT, by playing at dice as aforesaid. That on or about, &r. last, Defendant applied to Plaintiff, and pro- posed to deliver up the said bond for £ , upon Plaintiff's entering into, and executing in lieu thereof, a new bond or obligation to the said Defendant, in the penalty of ^ , with consideration of the payment of the said sum of c;£^ ,by instalments, at two equal payments ; and also a warrant of attorney to confess judgment thereon, and upon Plain- tiff's giving and subscribing two promissory notes for the payment of £ each, the one due at Chiistmas next, and the other at Christmas in the year ; and also another promissory note for the payment of £ ibr the interest thereof; and thereupon Plaintiff, at the intreaty of the Defendant, did execute to him a bond or obligation, bearing date, &c. in the penalty of <£ , or some other considerable sum of money, with condition thereunder written, for the payment to Defendant of the •sum oi £ , with interest at the end of two months from the date thereof, and of the further sum of £ , and interest, at the end of five months from the date of the same. And Plaintiff also at the same time, executed a varrant of attorney to confess judgment in his Majesty's Court of K. B. at W. on the last mentioned bond. And Plaintiff also then cave and subscribed to the Defendant a promissory note for the payment of the further sum of ^ , at Christmas next, and another promissory note for the payment of the further sum of =£ at Christmas, in the year, and also a promissory note for the payment of £ on account of interest of the said sums, as by, &c. That the last mentioned bond, warrant of attorney, and promissory notes, were entered into and executed by Plaintiff, in lieu of the first mentioned bond for the payment of the sum of ot , and without any other con- sideration paid or given to Plaintiff by the Defendant, save the delivering up of the same bond for £ That soon after the first payment on the said bond for £ became due, he tiie said Defendant entered up judgment ott the same bond, in 256 BILLS FOR BOND CREDITORS, &C. pursuance of the said warrant of attorney in tlie Court of K. K. and on or about, Sec. Defendant sued out a writ of capias ad satisfaciendum on Ihe said judgment, and Plaintiff was taken in execution thereon for the penahy of the said bond, being the sum oi X , and Plaintifl' being in custody on the said execution. Defendant, on the day following, ollered and agreed to release FlaintifF from the said execution, if PlaintilT would draw a bill of exchange on T. B. Jun. esq. for the sum of <£ , then due upon the said bond, payable in fourteen days, and procure him, the said T. B. to accept the same bill. And if Plaintiff and the said T. B. would also enter into and execute a warrant of attorney to confess judg- ment for the sum oi £ , to which Plaintiff, in order to procure \\\i discharge out of custody, consented, and accordingly, Plaintifi'drew a. bill of exchange on the said T. B. requiring him to pay to the Defendant, or order, the sum of =£ , after fourteen days from the date thereof, being the first payment that had been due on the said bond for the £ , and Plaintifi', together with the said T. B. at the same time entered into and executed a warrant, to confess judgment in his Blajesty's Court ol K. B. to the said Defendant, in the sum oi' £ ; and the Defendant, or J. D. his attorney, subscribed an acknowledgment that the same was given as a security for the payment of the said bill of exchange, and that judgment was not entered upon the b^aid warrant of attonu y until the s.aid bill became complete, as by, c^x. That Plaintiff is advised that the securities given and entered into by Plaintifl'as aforesaid, are all null and void, and ouglit to be delivered up to Plaintiff and cancelled, and vacated of the consideration for tlie same, being to secure tiie sum of , so won by Defendant at playing at dice as aforesaid. And Plaintiff hath frequently applied to the De- fendant, and requested him to deliver up the several securities as afore- said, so entered into by Plaintiff as aforesaid. And Plaintiff wdl hoped, &c. But now, &c. Insists upon the benefits of all the aforesaid securities, and threatens, in case the said bill of exchange is not paid on the day the same is made public, that be will enter up judgment on the said warrant of attorney, so executed by Plaintiff and the said T. B. and sue out execution thereon. And that he will also commence actions against Plaintiff on the several other securities given and entered into by Plaintiff as aforesaid, to re- cover the mortgage mentioned therein respectively ; some times pretend- ing that all the securities were given for a good and valuable considera- tion bona fide paid by Defendant to Plaintiff, and that no part of the consideration thereof was for money won at dice, or any other play. Char;rc coiitran/, which Defendant at times admits, but Pretends, that although part of liie consideration of the first mentioned hond was for the sum of guinea-*, won by him at dice as aforesaid, EILLS FOR lUJND CREDITORS, &€• 257 yet, as such bond was affenvaids delivered up to Pluititifl' and such new securities entered into by him as aforesaid, in Hou of the former, the said bond for £ and warrant of attorney to confess judgment thereon, and also the said promissory notes, given by Plaintiff were to be consi- dered as distinct and independent securities, and for a good and valuable consideration, and are not void within the meaning of the stat. 9 Ann. c. 14. and therefore tiiat the Defendant hath n right to the benefit thereof, and to receive the money mentioned therein. Charge, that the said bond for £ , and the warrant of attorney to confess Judgment tliereon, and the said promissory notes given as the fact is, by Plaintiff, in lieu of the first mentioned bond, and for no other different consideration, are equally null and void, and ought not to be put in force against Plaintiff, part of the consideration for the same, being tlte money won by Defendant of Plaintiff, at playing with dice as aforesaid. All which, &c. To the end, Sic. Prayer. That the said bond so executed by Plaintiff to the said Defendant, for the payment of the said sinn of c£ , and the warrant of attorney aforesaid, to confess judgment thereon, and also the said promissory notes so given and entered into by Plaintiff to the Defendant, and all other the securities entered into and executed by Plaintiff to the said Defendant in manner and for the consideration aforesaid, may be declared null and void, and that the same may be delivered up to Plaintiff, to be cancelled; and that in the mean time the said Defendant may be restrained by the order and injunction of this honorable Court from commencing or prosecuting any action or ac- tions at law against Plaintiff, upon the said securities, or any of them, or from entering up judgment on the said warrant of attorney, exe- cuted by Plaintiff and the said T. B. or from any proceedings there- on. And for further relief. J. R. 34 'J58 SECT. xm. — BILLS FOR TNFANTS. Bill to have a Sum of Money which tons a specific Le;^acy, and appropriated, invested in the Accountant General, for the Benefit of Infants, Guardian, Allowance, ^c. Humbly complaining, shew unto your Loidsliip, your Orators and Ora- trix E. II., I. H., T. H., and M. A. II., infants, under the age of 21 years, by I. E. of. Sec. their next friend, that E. H. the elder, late of &c. farmer, but now deceased, duly made and published his last will and testament in writing, bearing date, &:c. and thereby amongst other things, directed, that W. T. of &c. and E. B. the Defendants hereinafter named, and C. G. of, &c. who were the Trustees and executors in his said will named, should out of the monies which should come to their hands in manner therein mentioned, lay out and invest in, or upon govern- ment or real securities at interest, the sum of £ upon trust, &c. (to pay a moiety of the dividends to E. II. then the widow of the testator's son T. for lite, or daring widowhood, and alter her decease or n^iarriage, the whole of the dividends were to be applied by the Trustees for the maintenance and education of testator's grandchildren, the PlaintilFs to whom the principal was to be transferred at ~1 years or mairiage, as to the daughter,) as in and by, &c. And your, &c. that the said Testator departed this life in or about the month, &c. without having in any man- ner revoked or altered the said will, except by a codicil, bearing date, S^c. which did not relate to, or effect the said trusts of the said sum of £ And your, &c. that W. T. and E. B. and tlie said C. G. duly proved the said will of the said testator, and acted in the trusts thereof, and out of tlie monies which came to their hands from the e^tale and effects of the said testator, in or about, Arc. appropriated the sum of £ , in satisfaction of the aforesaid legacy, in the purciiase of the sum of £ ,3 per cent, consolidated annuities, and the said sum of stock is now standing in their nifnies in the books of the Governor and Company of the Bank of England. And your, &c. that the said C. G. Jiath departed tliis life, and that the said E. H. on or about, &c. intermarried with, and is now the wife of the said I. E. whereupon the interest of the said E. H. in the said sum of <£' .3 per cent Ssc. wholly ceased. And that your Orators and Oratrix shew, that the said Defendants paid to the said J. E. and E. his wife, the years dividends which became remises should have been sold separately from that belonging to said T. C. and A. his wife, would have been con- siderably diminished in its value thereof, and notwithstanding it was for the benefit of said T. C. and A. his wife, and all persons who might claim any interest in the said one part of said premises, should be sold entire, yet, by reason of the lunacy of said T. C. a good title could not be made to a purchaser of the said one part of said premises, belonging to said T. C and A. his wife, without the aid of parliament, whereupon application was in made to parliament, for an act for that purpose, and a,ccordingly, by an act, intituled, "An act for sale of the real estate of T. C. and A. his wife, and for laying out the money aris- ing by such sale, in the purchase of other lands and hereditaments, for the benefit of said T. C. and H. his wife," duly made and passed in the year of his present majesty's reign, it was, amongst other things, enacted, that, Sec. That in pursuance of said act of parliament, ^aid premises were, in , sold and conveyed to A. B. for £ , and after de- ducting the expenses attending the procurement of the said act and sale, the residue of the money arising by sale of said one-fourth part of said T. C. and A. his wife, was, in pursuance of said act, paid into the bunk in the name of the Accountant-Goneial, and afterwards, by an order of laid out in the purciiase of dj 3 per cent, consolidated bank annuities, which were transferred to, and are now standing in the name of the said Accauntant-General, on the trusts in the said act men- tioned, and the dividends thereof were applied for the benefit of said T. C. and A. l>is wife, during their respective lives. That the said A. C. departed this life on, &c. leaving said T. C her s^urviving, and the said F. II. widow and relict of said W. H. her heir at law : and having fust made her will in writing, bearing date, &c. whereby, after reciting the power and authority given to her by said indenture of of , she, by virtue thereof, did give, &c. (a third part oi' what she had jjower to dispose of, to W. C. and E. his wife, and if the) died in her life-time, to the children of R. P. by C. his wife; the other third to W. II. and F. his wife, with the same limitation over in case of their deaths before the Testatrix, and the remaining third she gave to said 151 LI. S FOR INFANTS. 265 M. S. for life, remainder to children of R. P. and said E. his wife, and appointed W. C. sole executor.) That the said F. H., who survived said W. 11. her husband, departed this life on, &"c. leaviiio Defendants K. T. widow, and W. T. her heirs at law, having first duly made her last will in writing, bearing, &'c., and thereby, amongst other things, devised, iVc. (all that she was entitled to under the will of her sister A. C. to W. C. for life, and after his death, to assign a third of the monies arising from the sale to M. B. M., the other third to T. S., and the remaining third to E. P. for life, remainder to all her children except M. F.,) and appointed R. M. husband of M. B. M. and W. II. executors of her said will, who proved the same in the proper Ecclesiastical Court, and are become her personal repre- sentatives, and have paid all her drbts. * That said W. C. who survived said E. his wife, died on, &:c. leaving T. M. his heir at law. having first made his last will, bearing date, S:c. and thereby, among other things, gave and devised, Sec. (all what he was entitled to under the will of A. C. to all the children of R. P. the elder, as tenants in common.) and appointed W. H. and L. II. executors, De- fendants, who proved same in the proper Ecclesiastical Court, and paid all his debts. That said T. C died on, Sec without ever having enjo3'ed any lucid intervals from the time of having been first found a lunatic, and without having executed such appointment as by said indenture of he was empowered to make; and that said F. H. as heir at law of said A. C. being, by virtue of the limitations contained in said indenture in favor of her right heirs, well entitled to one moiety of said £ , or the lands to be purchased therewith, by virtue of said A. C.'s will, and her having survived said VV. H. her husband, such the right of said F. H., by virtue of her said will, and no appointment having been made by said T. C, vested in the Plaintifl' R. \V. and Defendant W. H. upon the trusts therein mentioned, and by virtue of the benefits contained in the wills of said A. C. and W. C, the PlaintilTs R. P. the younger, W. P. &c. &c. became entitled to the other two-thirds of a moiety of said £ , or the lands to he purchased therewith, as in said two wills particularly mentioned. That said E. T. is lately dead, leaving said Defendant VV. T. her heir at law, and also solfe heir at law of F. 11. deceased. That said £ 3 per cent, annuities have not been laid out in the purchase of any lands, &c. but are still standing in the name of said Accountant General, in trust, in the said matter of A. B. the purchaser, and the dividends which have accrued thereon since the death of said T. C. up to, &c. amounting to £ , have been received by said Accountant-General, and placed to the credit of said matter. And the 266 rilLLS FOR INFANTS. Plaintids being respectivefy interested in said £ and the dividends tlicreot", hoped to have had the said bank annuities and said dividends transferred and paid accordingly, and that no opposition would have been made thereto, but that the said Defendants A. C. and T. C. object thereto, under a pretence that they are interested in said stock and divi- dends, alleging that said T. C. betbre he became a lunatic, and on, &:c. duly made his last will in writing, in the presence of three subscribing witnesses, and thereby gave to them anrl to G. C. and H. C. who died in the lite-time of T. C. c£ , share and share alike, to be paid to them on the death of his said wife ; and that the said T. C. by said pretended will, charged said one-fourth part of. said moiety of said premises with the payment of said legacy, and that by virtue of said will, which they allege is a due execution of the power reserved to him by said indenture of, «fcc., they are now entitled to be paid the said legacy of £ out of said £ 3 per cent. Consolidated Bank Annuities. Charge contrary, and that said T. C. never did execute any will, or if he did, such will was not duly executed, &c. as required by said in- denture ot", &c. or as required by law, Ac. ; but if said T. C. ever exe- cuted such will, and according to the terms of the power given him by said indenture of, &c. which they do not admit, yet they charge that he afterwards destroyed or cancelled the same, which Defendants will some- times admit. Pretend, that he destroyed or cancelled the same during his insanity. Charge conirari/, and that if there ever existed such supposed will, the said T. C. destroyed or cancelled the same previous to his lunacy, and whilst compos mentis, and in some lucid interval. But even if the claim of said Defendants could be siihslantiated, Flaiutilf K. M. and Defen- dant W. H. allege that they are, under said will of said F. II. entitled in trust to all such part o'' said moiety as is not effectually disposed of by said will, and that said E. T. and W. T. who are heirs at law of said F. H. and also of said A. C, and T. JM. who is heir at law of said W. C. make some objection to said stock and dividends being so trans- terred, alleging that the wills of said A. C, F. H., and W. C. were not executed so as to affect their interest therein, and that they are re- Sjjectivcly entitled to some shares or interests therein, and of the divi- dends thereof, or of the lands to be purchased tlierewith. And the said T. xM. as heir at law of said W. C. the trustee named in the said act, also makes some objection to such transfer without the decree of this honorable Court. To the end, &c. PruTjer. That the wills of the said A. C. &c. u)ay be established, and that it may be decreed that the Accountant-General do transfer to Plain- BILLS FOR INFANT3- 267 tifl's R. M. and Defendant W. H. upon the trusts aforesaid, one moiety, and also one-third of a moiety of said £ 3 ptr ti;,it. &c. and pay them a just proportion of said di%'idends accrued due thereon since the death of said T. C, and to accrue due thereon before such transfer, and that he may also transfer the remaining two-thirds of one moiety of said £ and the dividends thereof, to or for the use of the Plaintifls R. P. the younger, W, P. &c. iii equal proportions, and that in case any such will shall be pretended to have been made by said T. C. as aforesaid, then that an issue may be directed to try the validity thereof, and if such will shall be found on the trial of such issue to be vahd, then that so much of said moiety as is not efiectually disposed of may be paid to Plain- tiff R. M. and Defendant W. H. with the dividends thereof, upon the trusts aforesaid ; and for further relief. Bill to raise a Sum of Money ivliich had been paid by Plaintiff, Tenant for Life under a Will, to make up a Legacy charged on such Estate, the next Tenant in Tail being an Lfant. Freehold — Copyhold — Rever- sions — Personals. States, that J. N. late of, &c. deceased, in his life-time was seised of in fee-simple, and in posiession of, divers freehold manors, messuages, farms, lands, tenements, and hereditaments, situate, &c. and also seised of, or well entitled to him and his heirs, according to the custom of tlu.- several manors of which the same were holden, of divers coj.vhold lands, hereditaments, and premises, situate, &c. ; and also entitled to the re- version in fee-simple, expectant on the death of, &c. of or to divers other freehold lands, estates, or premises, &c. situate, &c. of consider- able yearly value in the whole; and also possersed of or entitled to a personal estate and effects, to a large amount and value in the whole, and being so seised, and having duly surrendered his copyliold lands and premises, according to the custom of the several manors of which the same were respectively holden, to the uses of his will^ duly made and published his last will and testament in writing, &c. It then goes on to state the death of Testator, lertvingPlaiPilifT, an in- fant, his eldest son and heir at law, his daughter, also an infant, him sur- viving. Executors proved. But two of the trustees never in any manner acted in the trusts and executorship of will, or possessed any part of Tes- tator's estate or effects, or of the produce tlif reof; W. R. alone acted in Ifhe trusts and executorship of will, and by virtue thereof, or of th? pro- 268 BILLS FOR IM'ANTS. bale therpof, possessed himself of the personal estate and effects of or be- longing to ihe said Testator at the time of his death, to a large amount and value in the wiiole, and mucli more than sufficient to pay all his funeral ex- penses, debts, and the several legacies given and bequeatlied I)y his said will, except said legacy ol £ to said W. his daughter, IMaintilf's sister ; and soon after Testator's death, all his debts, together with the several legacies given by his will, except £ were duly paid and sati.^fied out of Testator's personal estate and effects not specitically betjueathed by will. That in tenant for life of estates mentioned in the will died, Plaintiff attained his age of twenty-one. and became entitled, by virtue of will, as tenant for life, to possession of all his aforesaid estates, and he accordingly entered upon and took possession of same. That W. R. who alone acted in the trusts and executorship of will, upon or soon after Plaintiff 's attaining his age of twenty-one, {)assed or settled his accounts with Plaintiff touching the personal estate and ef- fects of Testator, and paid unto Plaintiff the sum of «£" , being the balance then appearing to remain in his hands 0:1 the taking said account, and also transferred unto or into the nanu" of Plaintiff, several capital or principal sums in goverment securities, and in the stocks or funds, to the amount or value of £ or thereabouts, being the remainder of the residue and clear surplus of said Testator's personal estate and effects. That in , W. N., Plaintiff's sister, intermarried with the right bon. sir J. S., bart., and that they had issue one son only, J. S. now an infant : in Plaintiff's sister died, leaving her husband sir J. S. and the said J. S. then and still an int'ant, her eldest and only son, and also her heir at law, her surviving. W. R. during minority of I'laintiff, paid respective smns, given and directed to be paid by the will, for the maintenance of W. N. Plaintiff's sister, out of personal estate of Tes- tator. And from and after Plaintifl's attaining his age of twenty-one years, Plaintilf from time to time paid out of his own proper monies such sums for the maintenance of his sister until the day of when she attained the age of twenty-one, and from that time tlie interest of said principal sum of .£ That in Plaintiff paid unto sir J. S., who hath since the death of the said VV. his said late wife obtained letters of administration of her personal estate and effects, and thereby became her personal represen- tative, out of his own proper monies, the principal sum of £ , Plaintiff's said ii.ster's fortune, and the arrears of interest for the same to that time. And sir J. S. signed and gave unto Plaintiff a receipt for same, ao in and by the receipt, Sec. BILLS FOR INFANTS. 269 That Plairilirf, in consequence of such payment, became a creditor upon said real estates, charged by his said father's will with payment of said legacy, for so much and such part thereof as the residue and clear surplus of Plaintifl"s father's personal estate and effects, or of the pro- duce tliereof, paid to Plaintifl'as aforesaid by the said W. R. would not extend to pay. That in , by an act of parliament made and passed in the year of the reign of his present Majesty, and in the year , intituled, " An actfor vesting part of the settled estates of J. N. esq. in the coun- '' ties of, Sec. in trustees, to be sold, and for purchasing other estates in « lieu thereof, to be settled to the same uses." whereby, after reciting, &c. That since passing of the said act, and in pursuance of ihe powers in them thereby vested, trustees have sold several parts of the estates therein comprised, and have invested the produce of money arising by sale thereof in the purchase of other estates, situate in the several parishes of, &c., and which have been by certain deeds or instruments in writing, bearing date respectively, &c. duly and properly conveyed and settled under the direction of this honorable Court, to the uses of said will of said Testator. That Plaintiil' having paid said legacy of £ to sir J. S. is entitled to have so much thereof, or such sum of money as exceeded the amount of said Testator's personal estate, paid and transferred to him as afore- said, by W. R. Testator's only acting executor, raised and paid out of saitl real estates devised by his will, and conveyed and settled as afore- said, pursuant to said act of parliament, and also out of his father's real estates remaining unsold, situate, &c. and devised by his said will. And Plaintiff well hoped same would have been raided and paid to him ac- cordingly. But now, &c. that the said J. S. the infant, who by virtue of the will is first tenant in tail of all the aforesaid real estates devised by Testator's will, and also of estates conveyed and purchased as aforesaid pursuant to said act of parliament, (Plaintiff being unmarried and having no issue male,) objects to or opposes the raising and paying unto Plaintiff any part of said legacy of £ out of the aforesaid real estates, or any part thereof, at sometimes alleging that W. R. only acting executor of Testator's will, possessed assets more than sufficient for payment ol aforesaid legacy or portion of £ , or however that the balance re- maining in his hands on settlement of accounts with Plaintiff, touching such personal estate and effects, exceeds the amount of the money paid and transferred to Plaintiff as aforesaid, notwithstanding said W. R. al- leges and insists to the contrary. P>y reason whereof, and also of in- fancy of said J. S. Plaintiff h unable to get such sums raised and paid 270 BILLS FOR INFA-NTS. out of the aforesaid estates, pursuant to directions of said Testator's will, without the aid or assistance of this honorable Court. At sometimes Defendant J. S. the infant, claims some other right or interest in the aforesaid estates or premises, or some parts thereof; but at sometimes refuses to discover the particulaurs thereof, or how he de- rives or makes out the same. Pretence some other mortgages, &c. Prayer. And that a sura of money may be raised out of Testator's real estates situate in, &c. not comprised in the aforesaid act of parliament, and also out of the estates purchased with the money arising by sale of Testator's real estates sold pursuant to the directions of the said act, sufficient or competent with the money paid and transferred to Plamtiffas aforesaid by W. R. the Testator's acting executor, as the balance of his accounts of the said executorship, to make up the aforesaid principal sum of £ , paid by Plaintiff a« aforesaid to sir J. S. in satisfaction or discharge of the legacy or portion by the said will given to Plaintiff's said sister. And that the aforesaid real estates, or a competent part thereof, may be sold or mortgaged for that purpose ; and that all proper parties may join therein, as this honorable Court shall direct ; and that such money, when raised, may be paid to Plaintiff. And for further relief. J. S. 271 SECT. XIV. — BILLS FOR LEGATE^. Bill by Legatees against Executors, for Payment of Legacies, and Account. Humbly complaining, shew unto your Lordship, your Orators and Oratrixes, H. K. the elder, of , administrator of the goods and chat- tels, rights and credits, of F. K. late of , and son of the said H. K. deceased, H. K. the younger, of , and S. K. an infant, under the age of twenty-one years, to wit, about the age of twenty years, by the said H. K. the elder, her father, and next friend, that J. R. late of C, &c. being possessed of or well entitled unto a considerable personal estate, duly made and published his last will and testament, and a codicil there- unto annexed, in writing, the said will bearing date on or about the day of , and by his said will amongst other things, gave and be- queathed unto your Orator S. K. the sum of ^ , of lawful money, &c. to be paid at the age of twenty-one years, or day of marriage, which should first happen ; and the said Testator also gave and bequeathed unto your Orator H. K. the sum of £ , of like lawful money, to be paid to him on his attaining his age of twenty-one years, and the said Testator after giving divers other legacies, gave and bequeathed unto R. B. the Defendant hereinafter named, and W. R. H. of , and who departed this life in the life-lime of the said Testator, the rest and residue of his estate and effects in trust, to be equally divided between such children of his, the said Testator's niece, M. K. as should still be living at the time of his decease, and thereby appointed the said Q. H. and R. 11. executors of his said last will and testament, as in and by, &c. And, &c. that the said J. R. departed this life on or about the without revoking or altering his said will, save by the said codicil, and, without revoking or altering the said codicil or any part thereof; where- upon the said R. B. the executor in the said will named, duly proved the same in the proper Ecclesiastical Court, and undertook the Executorship thereof, and possessed himself of the personal estate and effects of the said Testator to a very considerable amount, and more than sufficient to dis- charge his just debts, funeral expenses, and legacies. And, &c. that the said F. K. in tlie said will of the said Testator named, and your Orator and Oratrix, H. K. the younger, and S. K. were the only children of the said M. K. in the said will named, who were living at the time of the death of the said Testator, became entitled to have and receive his said legacy of ^^ , so bequeathed to him ns aforesaid, and also his third 272 BILLS FOR LEGATEES. part or share of ihe said residue of the personal estate and effects of th^ said Testator after payment of all his just debts, legacies, and funeral ex- penses ; and your Oratrix, S. K. is entitled to have her said legacy of £ , and also her tiiird part or share of the said residue secured for her benefit, until she shall attain her age of twenty-one years, or day of marriage ; and your Orator, H. K. the elder, is entitled, as such admi- nistrator of the said J. K. as aforesaid to have and receive the remaining third part or share of the said residue. And, &c. that the said J. K. departed this life on or about, S:c. intestate, and that, since his death, your Orator, the said H. K. the elder, has obtained letters- of administra-' tion of the personal estate and eflixts of the said J. K. And, &:c. that your Orator, II. K. the younger, attained the age of twenty-one years, on or about, &c. and being so entitled, your Orators have made frequent apphcations to the saidR. B. to have the said legacy of i^ , and the said two-third shares of the residue paid to them respectively. And your Oratrix hath also applied to him, the said R. B. to lay out and in- vest her said legacy of £ , and her third share of her said residue, upon some proper security, for her benefit, until she shall attain her age of tweuty-one years, or day of marriage, with which just and reasonable requests your Orators and Oratrix well hoped that he, the said Defen- dant, would have complied, as injustice and equity he ought to do. But now so it is, Szc. absolutely refuses so to do, sometimes pretending that the said Testator never made any such « ill, as is hereinbefore stated. Whereas your Orators and Oralrix charge the contrary thereof to be true, and so the said Defendant will at other times admit. But then again he pretends, that the said Testator's personal estate was very small and inconsiderable, and not nearly sufficient to pay and satisfy his just debts and funeral expenses. Whereas j'our Orators and Oratrix ex« presslv charge, that the personal estate and effects of the said Testator were much more than sufficient to discharge the said Testator's just debts, funei-al expenses, and legacies; and so it would appear if the said Defendant would set forth a full, true, and particular account, of all and every the personal estate and effects of the said Testator, come to his hands or use, ajid also a full, true, and particular account of the manner in which he hath disposed of or applied the same, but which the said Defendant refuses so to do. All wliich, &rc. To the end, therefore, &c. that they may set forth whether the said Testator did not make his will and codicil of such dale, purport, and eflect, as are hereinbefore stated, •r of some other, and what purport and effect in particular ; and whether the said Testator did not dejjart this life at or about the time in that be* half btfore mentioned, Qr any, and what other time, and whether he ever, and wiicn, and Ijow in particular, revoked or altered his said "fvill; <^ve inaismuch as the same might be revoked by the said codiciK and BILLS FOR LEGATEES. 273 wiu.'tlier lie ever, and when and how, revoked the said codicil ; and whe- ther the said 11. II. in the said will named, did not die in the lile-time of the said Testator, and whether the said Defendant did not prove the same in some, and what Ecclesiastical Court, and did not take upon him- self the execution thereof, and is not the personal representative of the said Testator, or who is such personal representative in particular; and whether the said Defendant hath not possessed himself of the said Tes- tator's personal estate and effects to a considerable, or some and what amount, and whether the same are more than sufficient to discharge his just debts, funeral expenses, and legacies ; and whether the said J. K. deceased, and your Orator and Oratrix, H. K. the younger, and S. K. were not the only children of the said M. K. in the said will named, who were living at the time of the death of the said Testator ; and whetlier J. K. did not depart this life on or about the time aforesaid ; and whether the said J. K. did not die intestate ; and whether your Orator, the said II. K. the elder, has not obtained letters of administration of his personal estate and effects, to bo granted to him, or who else in particular has obtained such letters of administration, and whether your Orator, the said H. K the younger, did not, at or about the time aforesaid, attain his age of twenty- one years, or at what other time, and whether your Orators and Oratrix are not entitled as aforesaid or if not, why not ; and whether they have not made, or caused to bo made, some such applications as aforesaid, or some other, and what applications ; and whether the said Defendant hath not refused to comply therewith, and for what reason in particular, and that the said Defendant may set forth a particular account of all and every the personal estate and effects of the said Testator, come to his bands or use, ar^d also an account of the manner in which he hath, or dis- posed of the same, and every part thereof. Prayer. And that the said Defendant may answer the premises, and th.at an account may be taken of the personal estate and effects of the said Testator, come to the hands of the said Defendant, and also an ac- count of his funeral expenses, debts, and legacies, that the same may be applied in a due course of administration, and that the said De- fendant may be decreed to pay to your said Orator II. K. the youaiger^ his aforesaid legacy of £ , and that the clear rcsidu/; of the said Testator's personal estate and effects may be ascertained, and that such share thereof as shall appear to belong to your Ora- tors, may be paid to them respectively, and that your Oratrix's said legacy of £ , and also sujcIi share of the said residue as she shall appear to be entitled to, may be s,ecured for her benefit ; and that, for those purposes, all proper directions may be given. And for general relief. Sec. J. L. 36 In BILLS FOR LEGATEES. Bill bij residuary Legatees against Executors to establish a Will for the usual Accounts^ that Executors may be charged ivith any Losses for not laying out Money as directed ; that fVidoiv may sign and deposit an Inven- tory of Household Furniture to which she ivas entitled for Life. Humbly complaining, shew unto your l^ordsliip. yora- Orators and Oratrixes J. A., of, Sec. S. P., of, &c. widow, E. U., of, Sec. spinster, R. A., of, &,c. widow, and G. T. W. and A., his wife ; that K. A., late of, Sec. duly noade and published his last will and testament, in writing, bearing date, &■€., which was executed and attested, as by law is required tor passing real estates b}' devise, and therein-, after giving two ■pecuniary legacies, the said Testator gave, devi.;ed, and bequeathed all his estate and effects, as well real at; personal, whatsoever and wlienso- ever, and of what nature, kind, or quality «oever, unto his brother, your Orator, J. A., and his friends W. N., of, dc. W. II., of, cVc, one of the Defendants hereinafter named, and T. S., another Defendant hereinafter named, their executors, upon trust, ttc. (to make sale of his estate, and in so doing sliould give a preference to his relations, and out of the produce to pay debts and legacies, &c. and to invest £ , to be payable to hi? niere A. V. at twenty-one, or marriage, who aftprwards died in Testa- tor's lile time, to pay his wife an annuity of £ . and as to £ for such per«ons as bis wife should appoint ; and as to the remainder, one- fifth to his nephew J. A., another Defendant, and S. P., the children of his brother R. ; one-tilth to his nieces, plaintiffs, E. V., R. A., and A. U., who died in Testator's life-time, one-fifth to phiiniiff J. A. ; one- "fiftii to the ciiildren of his brother R ; and the remaining fifth part tQ the children of his sister M., then the wife of \V. N.) And your, &c..'that the said Testator afterwards duly made and published a codicil, I'xi writing, to his will, bearing date, «S:c. and executed, Sec. and thereby, alter reciting, &c. (appointed J. R., of. Sec. J. K., of, Sec. two other Defendants, and his wife S. A., executors, instead of those mentioned in said will j and stating that he had purchased some lands, and directing them to be sold to pay debts and legacies, Sec. and the overplus to be placed out .at in- tere^t and paid to his wife, and giving her the use of the furniture, and cows and horses for her life, and, after her decease, llie principal to be paid to nephews and ni^^ces, as directed by the will,j as in aiul by. Sec. And your, Sec. that the said Testator K.' A. departed this life, on or about, &c. without issue and without having altered or revoked his said will, other than by the said coilicil. and williout having altered or revoked his BILtS FOR LEGATEES. 275 saW codicil, leaving his nephew, the said J. A. one of the Defendants, &;c. who was the only son of the said R. A. the elder brother of the said Testator his heir at law ; and thereupon the said S. A. the widow of the said Testator, another Defendant, &c. the said J. R. and J. K. the executrix and executors, in the said codicil named, duly proved the said will and codicil in the proper Ecclesiastical Court, and undertook the executorship thereof, and by virtue thereof possessed thpni?elves of the personal estate and efiects of the said Testator to an amount and value greatly more than sufficient to pay and satisfy his funeral expenses, just debts, and legacies ; and tli^ said S. A., J. R. and J. K. also entered into the possession of the freehold and leasehold estates of the said Tes- tator, or into the receipt of the rents ai%\ profits thereof, &c. And your, &c. that your Orator J. A. hath aot, nor had, at the death of the said Testator, any child, and that your Oratrix, A. W. was at the death of the said Testator, the only surviving child of the said Testator's brother R. A., and, as such, is sole legatee of onofifth of the said Testator's residuary es- tate ; and that \V. N. the younger, who survived the said Testator, but is since dead, and T. N., of, &c. another Defendant, &c. were, at the death of the said Testator, the only surviving children of the said Testator's sister M., and, as such, were legatees as tenants in common of one other fifth part of the said Testator's residuary estate. And your Orators and Oratrixes shew, that tiie said W. N. the younger, had before his death, attained his age of twenty-one years, and that he duly made and publish- ed his last will and testament, in writing, and thereby appointed his said brother the said Defendant T. N. and J. II., of, &c. and S. H., of, dr. other of the Defendants hereinafter mentioned, the executors thereof, who have duly proved the same in the proper Ecclesiastical Court, and are thereby become representatives of the said W. N. ; and your Orators and Oratrixes shew, that the said A. U., afterwards A. L., one of the nieces of the said Testator, having died in his Hfe-time, the one-third of one-fifth part of the said Testator's said residuary estate, bequeathed to her as aforesaid, became lapsed. And your, &c. that your Orators and Oratrixes, except your Orator G. T. W., are next of kin of tlie said Tes- tator, and were with the said W. N. the younger, deceased ; and the said Defendants J. A. the younger, and T. N., the only next of kia of the said Testator, at his death, and are, together with the said S. A., the widow of the said Testator, entitled to divide thp said lapsed legacy amongst them, according to the proportions specified in the statute of distributions. And your Orators and Oratrixes shew that your Orator J. A. hath, on their part, in a friendly manner repeatedly applied to the said Defendants S. A., J. R., and J. K., and hath requested them to come to a just and true account of their receipts and payments as execu- trix and executors, and in thf^ trusts of the said T^stator',^ will, and to 276 BILLS FOR LF:GATELb. lay out and invest the said Testator's residuary estate;, upon proper secu- rity, particularly in the public or government funds, for the benefit of all parties interested therein ; and your Orators and Oratrixes well hoped, &c. refuse so to do. And the said Defendants, at some times, pretend, that the personal estate and effects of the said Testator were small and inconsiderable, -«nd not sufficient to pay and satisfy his funeral expenses and just debts, and that they have been obliged to apply the rents, profits and produce of the real estate of the said Testator, in aid of his personal estate, in payment of his funeral expenses, debts, and legacies, whereas your Orators and Orutrix charge, that the personal estate of the said Testator was greatly more than sufficient for payment of his funeral expenses, debts, and legacies, and tliat so it would appear if the said Defendants would set forth, as they ought to do, a just and true account thereof, and of their application thereof; and your Orators and Oratrix further charge, that the freehold and leasehold estates of the said Tes- tator, or some of them, have been sold by the said Defendants and a very larii;e sum of monej', but for the default and neglect of the said Defen- dants might have been produced therefrom, and invested ujwn the trusts of the said Testator's v.ill, to the great advantage of the residuary lega- tees who are ultimately to divide the capital of the said residue; and your Orators and Oratrix charge, that the said Testator died seised, among other estates, of a certain messuage, tenement, or farm, called, &c. and tliat the said Defendants, under the pretence of some verbal agrec- nvent made by the Testator in his life-time, but which was in no manner binding upon them, have sold the raid messuage or tenement and farm at considerably less than its real value, or what the same would have pro- duced at a public sale, and in the place of laying out and investing the purchase-money in such manner as should Ge most for the advantage of the residuary' legatees. Defendants have permitted the purchase-money, or the greatest part thereof, to remain in the hands of the purchaser on hi. personal security, and Defendants have sold other parts of the real estates of said Testator by auction, particularly a part of his estate at, &c. in a very improper and incautious manner, and have in like manner neglected to get in, lay out and invest the produce thereof, as should be most advantageous for tlie residuary legcitees, and have permitted the same or the greater part thereof, to remain en mortgage of the estate so sold as last aforesaid, and in such several sales have neglected to give a preference to the relations of the said Testator, pursuant to the directions in his said will for that purpose; and your Orators and Oratrix further charge, that the said Defendant, J. A., protends that the said will anu codicil of the said intestate were not executed and attested so as to pass real estates by devise, and that he is therefore entitled to the real estate of the said Testator, as his heir at law; and your Orators and Oratrix. BILLS FOR LEGATEES. 277 fiirther charge, that the said Defendants, W. N., the elder, W. 11., and J. O., who witli j'uur Orator, J. A., are the surviving trustees and de- visees, named in the will of tlie said Testator, claim to have some legal estate or intercsi in the freehold piroperty of the said Testator, under and by virtue of his said will ; and your Orators and Oratrix charge, that the said defendant, S. A., ought to have made out and sign, and ' liould now make out and sign, upon oath, and deposit with one of the Masters of this honorable Court, for the benefit of all persons interested, an inven- tory of the horses, cows, and furniture, which she claims to have the use of, for life, under the ?aid will and codicil of the said Testator. All which, &c. Prayer. And that the saixl Defendant may answer the premises, and that the said will of the said Testator may be decreed to be well proved, and the trusts thereof performed and carried into execution ; and that an account be taken of the personal estate and effects of the said Testator which have come to the hands or use of the said De- fendants, S. A., J. R., and J. K., or either of them ; and that an account may also be taken of the rents, profits, and produce of the real estates of the said Testator which have come to the hands or use of the said Defendants, or either of them, or but for their wilful default or neglect might have been received by them, some, or one of them. And that the estates of the said Testator, if any, remain- ing unsold, may forthwith be sold, by and under the direction of this honorable Court. And that all proper parties may join in such sales, and that the said Defendants may be made answerable for such loss or losses as shall appear to have been sustained, to the prejudice of tixe said Testator's residuary estate, by reason of the said Defendants having refused or neglected to lay out and invest the same according to the trusts of the said Testator's will and codi- cil; and that an account may be taken of such loss. And that an account may also be taken of the funeral expenses, debts and lega- cies of the said Testator, and that the same may be duly paid. And that the clear residuary estate of the said Testator may be ascer- tained and secured by this honorable Court, for the benefit of all , persons interested therein. And that the said Defendant S. A. may sign and deposit with one of the Masters of this honorable Court, an inventory of the horses, cows, and furniture which she claims to be entitled to for her life, under the said Testator's will and codicil. And for further relief. . BUI to have Arhliration Bonds deUvcred up iu be cancelled, the Award being void, and an Injunction from proceed- ing on Said Bonds. Humbly complaining, shew unto your Lordsliip, your Orators P. 15. <,f ' , and C. M. of ; that W. W. of , and J. B. of the same place also, druggist and chemist, Defendants hereinafter named, did, in or about the month of , carry on the trade or mystery of druggists and chemists together as partners, under certain articles of agreement, theretofore made between them, and bear- ing date on or about the day of whereby they had agreed to become copartners ,in the said trade or mystery of druggists and chemists for the term of 21 years, from the day of the date thereof, if they should so long live, but determinable nevertheless by either of them, upon the first 7, or first J4 years of the said term of 21 years, upon, under, and subject to ceitain terms and conditions in the said articles of agreement expressed. And your Orators, Sec. that certain differences and disputes having arisen between the siiid W. W. and J. B. It was agreed, by and between them, to refer their said differences and di!?|iutes to arbitration, and thereupon the said R. W. and J. B. each duly made, executed, and delivered to the other, a certain bend or obli- gation in writing, bearing date on or about the , whereby they re- spectively bound themselves, their heirs, executors, and administrators the one to the other of them, in the penal sum of £ ^ vvith a condition to each of the said bonds respectively underwritten, whereby it was provided, that if the obligor to such bond, his heirs, executors or administrators, did and should, &c. (^fstate condition of the bond) as by the said bonds or obligations, and the said conditions respectively there underwritten, reference being thereunto had, when produced to this honorable Court, will, amongst other things, more fully and at large appear. And your Orators, &c. that the said R. W, and the said P. S. (the two arbitrators) pro,cc«led on the said arbitration, biii not agreeing to make an award therein, did on or about the under the power by tlie said arbitration bonds, in tliat behalf given, nominate and appoint R. F. of , an umpire between them respectively, of the matters so referred and submitted as aforesaid. And your Orators, &c. that in the course of the investigation of the aforesaid matters, it was suggested to the said W. W. by the said arbitrators, or one of them, ^80 HILL TO SE'i ASIDE AN AWARD. that if the said arbitrators slioiild determine upon a dissoliitioia ot the aforesaid partnersliip between him the said ^V. W. and the said J. B. and should award that tl)e said W. W. should continue in t!)e busi»- hess, and pay and secure all debts owing by or to the said partner- ship concern, and should also pay a certain simi of money to the said J. B. a diflinilty would arise for want of a sufficient security to the said J. B. against the outstanding debts and claims upon the copartnership, and for the dire payment of the said sum of money which might be so awarded to him as aforesaid. And your Orators, iVc. tliat the said W. W. in order to obviate and remove the said difliculty, applied to your Orators and riequested them to join him as securities in a bond to the said J. B. for that purpose, and your Orators having consented thereto, they, and the said AV, W. did, by a certain bond or obligation, sealed with their respective seals, and bearing date on or about the , jointly and severally bind themselves, and each of their heirs, executors, and administrators, for the payment of the sum of.^ to the said J. B. with a consideration thereunder wriilen, whereby, after reciting the said arbitration bonds, and the appointment of the said R. F. ns umpire as aforesaid, and the difliculty suggested as aforesaid, to the said W: \V. it was provided, that, &c. as in and by the last-mentioned bond or obligation, and the consideration thereto reference, Sec And your Orators further shew unto your Lordship, that the said P. S. and R. F. did, on or about the said sign a certain instrument in writing, purporting to be their anard in the matters aforesaid, whereby, after reciting the purport and effect of the said arbitration bonds, and the appointment of the said R. F. to be such umpire as aforesaid, and reciting further, that under such reference, 6cc. (slate that part of the award wl»ch hcrirrt upon the case) as in and In' the said awaid, reference, &:c. And vour Orators, &:c. that although it is in the said award recited, that the said R. !•". had taken upon himself the burthen of the said refe- rence and sul>mi:;sion, and haii deliberately heard and considered the al- legations and proofs of the said W. W. and J. 13. respectively ; and had perused, examined and considered their account, yet, in truth, the said R. F. did never in any manner enter upon the subject of the said relerencc nor heard or considered any allegations or proofs of either of the parties, nor ever in any manner perused, examined, or considered any accounts relating to the said matters in difl'erenee, or ever exercised any judgment whatsoever, as to any of the said matters; but the said award was prepared by the instructions of tlie said P. S. alone, without any interference whatever on the part of the said R. F. who was pre- vailed upon to sign it, by being assured, that his signature thereto was a mere matter of form. And your, &c. that since the making of the said award, a commission of bankrujit under the great seal of Great Britain BILL TO 3LT ASIDE AN AWARD. 281 iialb been awaitled and issued against liie said W. W. who liatli I)ceu thereupon duly found and declared a bankrupt, and the usual assignnierit of his estat-- liatli heen duly mad:- to Dcfentlants hereinafter named, wlio were duly rhosen by the creditors as the assignees of the said bankrupt's estate. And your, cVc. that the said award, so made as afore- said, being utterly void as against your Orators, by reason that the same was signed by the said R. F. under tli<^ circumstances, yom- Orators have, by themselves, tie. to deliver np to your Orators the bond in which they had joined as the secmities of the said W. W. as aforesaid to be can- celled, and your Orators well hoped, &c. refuses so to, do, and the said VV. W. not liaving paid to the said J. B. the said several sums men- tioned in the said award, nor having disciiarged the debts of the said copartnership, the said J. I>. threatens and intends to connnence an action at law against your Orators upon their said bond. Charges, that the said assignees of the said W. W. refuse to join your Orators in the said suit. To the end, &c. Prayer. That the said bond, so as aforesaid entered into by yo-r Orators and the said W. W. may be delivered up to your Orators to be cancelled, or may be declared void so Cav as the same respects your Orators, and that in the meantime the said J. B. may be restrained by the order and injunction of this honorable Court from commencing, prosecuting or proceeding in any action or actions at law against your Orators, or either of them, in respect of the said bond, And for general relief, may it please, Sjc. J. r. Fra;/ Subpoena against J. B. and assi<{7iees of JJ\ W. 37 282 SECT. XVI.— BII-L FOR AN ANMLl'l A.NT Bill by Annuitant fui an Account of Money produced by Sale of timber, it having been felled for the purpose of redeeming his Annuity, and the trustees having applied it in discharge of the Arrears of another Annuity. Humbly complaining, slieweth unto your Lordship, your Orator, J. B. of, Arc. that by indenture bearing date. Sec. , C. S. of, &r,. did grant unto your Orator, an annuity of £ payable half yearly during the life of the said C. S. and for the better securing the repayment thereof, the said C. S. did thereby assign unto, or in trust for your Orator, the dividends and interest of the sum of £ 3 per cent, consdi- dated Iiank annuities, then standing in the name of, &c. trustees named in the marriage settlement of the said C. S. And it was thereby provided and agreed, that the said C. S. should be at liberty to re-purchase the said annuity upon giving three months notice thereof to your Orator, his executors, administrators, and assigns, as in and by. Sec. And your, &c. (hat the said C. S. being entitled, as tenant for lil'e, and in the possession of certain real estates hereinafter mentioned ; and the said C. S. having proposed to purchase the said annuity, uj)on the terms provided by tlie said indenture of the , and to raise the sum necessary for tltat purpose, by a fall and sale of timber then standing upon the said estates to which your Orator consented and agreed, the said C. S. duly executed a cfitain instrument in willing, or power of attorney bear* iug date, Arc. whereby, after reciting, &c. (appointed I. H. of, &:c. W. B. of, Arc. and W. C. of, A':c. three of the Defendants as tlie attor- nies, to fell the timber, and to s<-ll and to apply the produce in the redemption of the annuity. And your, A^c. that by an instrument in writing, bearing date, &c. (being a declaration of trust, that the money received by the trustees in the fall of timber, was to be applied in the re-purchase of riaintilFs annuity) as in and by,&c. And your, Arc. that after the execution of the said last mentioned instrument, the said I. II. W. B. and W. C. by virtue of the said power of attorney, caused divers large quantities of timber, whicli were growing on the said manors and estates, or some of them, to be fcilcd or cut down, and sold and dis- posed of, and the said W. C. received the monies arising by such sales, which amounted in the whole to the sum of of and upwards. And your. Arc. that the said W, C. notwithstanding the directions contained in BILL FOR AN ANNUITANT. 283 the said instrument or power of attorney, refused to apply the money received by him from the sale of the said timber in the repurchase of your Orator's said annuity, but hath witli the consent of the said I II. and W. B. applied the same to his own use, or for some purposes not autho- rized by the said power of attorney, and without your Orator's concui"* fence and consent, and expressly contrary to a notice given to him by your Orator's solicitor in that behalf, and which application so made by him the said W. C was in direct breach of the trust reposed in the said I. H., W. B. and W. C. by the said instrument or power of attorney, and which they undertook to execute. And your, Szc. that your Orator was and is, under and by virtue of the aforesaid power of attorney, and the appropriation thereby made of the said timber, and the money to arise by sale thereof, entitled to have a sufficient part of the said money (after deducting the charges and expenses attending the said sale, and the execution of the said trust) applied in the repurchase of your Orator's said annuity, upon the terms provided by the said inden- ture of the day of ; and yoiu" Orator being so entitled as aforesaid, he has, by himself and his agents, many times applied to the said I. H., W. B. and W. C. and requested them to account with your sOrator for all the monies which have been received by them or either of them, or by any other person or persons, by their or any of their order, or for their or any of their use, for or in respect of the sale of the said timber, and to pay the same, or a sufficient part thereof, in or towards the repurchase of the said annuity of £ . And your Orator well hoped, &c. But now so it is, &c. they the said Defendants refuse to comply with your Orator's said request, some- times pretending that the said C. S. never executed such instrument, or power of attorney as aforesaid, or any other instrument or power of attorney whatever, for the purposes aforesaid. Whereas your Orator charges the contrary of such pretence to be true as aforesaid. And so the said Defendants will at other times admit. But then they pre- tend, that they the said J. H., W. B, and W. C. never did cause any timber or other trees whatever, which were growing on the aforesaid manors and estates, or any of them, to be felled or cut down and sold and disposed of, under and by virtue of the said power of attorney, nor ever receive' any sums or sum of money arising by such sale, or any part thereof. Whereas your Oi-ator charges the contrary of such pre- tences to be true, and so the said Defendants will at other limes also admit. But then they pretend, that the said W. C. hath accounted for. and paid the money arising from the sale of tiie said timber to the De- fendants J. W. and F. E. and to their lale partner F. B. now deceased, who, as such copartners, wore entitled to receive the same hi preference to your Orator, and had some prefera'-'lf^ claini ov lion tliereon, and had 28-i LILI, rOR AN ANNUITANT. obtained some oider of tliis honoraMc Court for the pnymeiit llieteof, upon the said W. C. Whereas your Orator charges, that the said J. W. F. E. and F. B. had no hon or chiim whatever thereon, nor any riglit or title to receive or call upon him the said Defendant W. C. for the payment of the same, or any part tlieroot', or to compel him to account tor, or pay the same or an\' part thereof. And tiiat if in truth any order of this honorable Court was made, respecting the payment of the said turn of money to the said I. \V., V. E, and F. B. or in any manner re- lating tlien-to, yet that this lionorable Court was surprised in such order, and was iiot In any manner ai>pri7Ad of the truth of the said transaction; and that the said W. C. tonfederaling with the said I. W'., F. E. and F. B. purposely suppressed or concealed from this honorable Court, the aulliority under which the saiil timber had been cut, and the purpose for which it was meant to be api)li«(l. And your Orator fuithcr charges. that upon payment being made to the said I. VV., F. E. and F. B. by the said Defendant W. C. (in case any such was marie) he the said De- fendant required and took from them some indemnity or security against the right or claim of j'our Orator to such money. And your Orator further charges, that if the said sum was paid by the said W. C. to the said I. W., F. E. and F. B. the same was so paid to them, under the pre- tence that considerable arrears were due to them as copartners, in respect of an annuity granted to thein by the said C. S. Whereas your Orator charges, that the said I. W., F. E. and F. B. had, at the time of such payment, by their receipts from the estates and property of the said C. S. been fully paid all arrears of their said annuit\-. And your Orator charges, and humbly insists, that the said Defendants T. II., W. B. and W. C. having accepted the trusts under the said power of attorney, ought to have paid the said monies arising by such sale as aforesaid (after such deduction as aforesaid) or a competent part thereof to your Orator, in or towards the repurchase of the said annuity of £ . And that the said Defendant W. C. having paid the said monies arising by such sales afore- said, contrary to the directions contained in the said power of attorneVj was guilty of a breach of trust in so doing, and made himself personally liable to answer and pay the same to your Orator. And your Orator further cljargos, that the said I. W. F. E. and F. B. were, at or about the time of the making of the said power of attorney,' fully apprized of the same, and of the purpose thereof, and did, by a letter, written by their solicitor, fully assent thereto. But nevertheless, the said Defendants refuse to comply with your Orator's aforesaid requests. And at some times the said Defendant C. S. claims some right or interest, to, or in such monies, or some part ihrroof. And the said Defendant C. S. resides abroad out of the jurisdi^'tion of this honorable Court. All which, &:c. To the end, ^c. 1311. r. FOR AN ANNUITANT. 285 Prayer. And that an account may be taken of all and every the monies which have been received by the said I. H. W. B. and W. C. sr by any person by their order, or for their use, for or in respect of such sales as aforesaid. And that the said Defendants may be decreed to pay what shall appear to be due from them respectively, upon the taking the aforesaid account. And that the same, after such deduction as aforesaid, or a competent part thereof, may be paid to your Orator, in or towards the repurchase of the said annuity of <£ , And for further relief, &c. R. S. 286 SECT. XVU. — BILL FOR DOWEK, Bill by an Infant against Executors, and Testatorh Wi- dow claiming Dower, for an Account of real and per- sonal Estate and Incumbrances, affecting real Estates. Humbly complaining, Arc. your Orator, J. D. an infant under the age of Iwenty-one years ; that is to say, of the age of three years, or there- abouts, by J. L. of D. dec. his next friend. That J. D. late of, &c. the father of your Orator, was, at the time of making his will hereafter men- tioned, and at his death seised in fee-simple of or otherwise well en- titled to divers freehold estates, situate, &c. and was also possessed of, interested in, and well entitled to considerable leasehold and other personal property, and that the said J. D. duly made and published his last will and testament in writing, which it is alleged, was duly executed and at- tested, as by law is required, to pass real estates, and thereb}' devised all his freehold estates unto your Orator and his heirs, and gave unto your Orator the residue of his personal estate, after payment of his funeral expenses, and debts, and thereby appointed H. P. &c of, and W. B. of, &:c. two of the Defendants hereinafter named, his executors thereof, as in and by, Sec. And your, Sic. that the said Testator departed this life soon after the making of his said will, without having, in any manner, revoked or altered the same, leaving E. D. another Defendant hereto, his widow, and leaving your Orator, his only son and heir at law. And that the said H. P. and W. B. upon or soon after the said Testator's death, duly proved his said will in the proper Ecclesiastical Court, and undertook the executorship thereof, and, by virtue thereof, possessed themselves of his personal estate and effects, so far as they were able ; and the said also entered into the possession of the freehold and leasehold estates, which were of the said Testator, or into the receipt of the rents and profits thereof, and have ever since continued, and now are in sucii possession or receipt. And jour, &c. that repeated applications have been made on the part of your Orator to the said , to come to a fair and ]u>\ account for the j>ersonal estate and effects of the said Tes- tator, and of their ap|*!ications thereof, in order that the clear residue thereof may be ascertained and secured for the benefit of your Orator ; and, in like manner, to account for the rents and profits of the said Tes- tator's estates, received by them as afc)resaid. And your Orator well hoped, &c. liut now, cVc. Pretence assets insufficient; charge con- BILL FOR DOWER. 287 trary. And tlie said Defendants, at other times, pretend that the real estates of the said Testator were in some manner mortgaged or incum- bered by him, in his Hfe-tirae ; and that the rents and profits received by them have been duly applied in keeping down the interest on such in- cumbrances, but the particulars of such incumbrances they respectively refuse to discover. And your Orator further charges, that the said E. D. the widow of the said Testator, claims some right and interest in the real estate of the said Testator, by way of dower or thirds ; but how, or in what manner, she makes out such claim, she refuses to discover. All which, &c. To the end, &c. Prayer. That an account may be taken of the personal estate of the said Testator, J. D. which have been possessed or received by the said Defendants, or either of them, or any other person or persons by their, or either of their order, or to their, or either of their use ; and that the same may be applied in a due course of administration, and the clear residue thereof ascertained and secured for the benefit of your Orator; and that an account may also be taken of the rents and profits of the said Testator's real estates, which have been pos- sessed or received by the said Defendants, or either of them, or by their, or either of their order, or to their or either of their use, and of their application thereof; and that some proper person may be appointed to receive the rents and profits of the said Testator's real estates, by and under the direction of this honorable Court; and that some proper person or persons may also be appointed the guardian or guardians of your Orator, with a suitable allowance for his maintenance and education for the time past, and to come. And ^or further relief. J. L. 288 SECT. XVIII. — BILLS FOR LITERARY PROPERTY, Bill to restrain from printing and publishing the Trial of Lord Viscount M. the exclusive Risj^ht having been given to Plaintiffs by the Chancellor, hy Order of the House of Lords, and for an Account. States, that H. L. V. M. was, in the month of and now last past, tried in the High Court of Parliament on articles of impeach- ment, for high crimes and misdemeanors, exhibited against him by the knights, citiKens, and burgesses, in Parliament assembled, in the names of themselves and of all the Commons of Great Britain and Ireland. That by an order made by the Lords Spiritual and Temporal, in Par- liament assembled, on the month of , it was ordered that your Lordship should give orders for the printing and publishing said trial.. and in addition thereto, the several questions put to the .Judges on Tues- day and Friday , of said month of , and their answers thereto, and that no other person should presume to print the same, as, by the journals of the House, will appear. That in pursuance of the said order, your Lordsliip was pleased to appoint Plaintiffs to i)nnt and publish the whole proceedings in said House, upon said impeachment, and to forbid any other person to prim or publish the same, as by such appointment, in custody of Plaintifls. will appear. That, under the authority, and by virtue of said appointment, Plaintiff, who had been employed by the direction of the said House of Peers to take down said trial in short-hand, have, al a very considerable expense to themselves, been preparing to print and publish saitl trial, and other proceedings, on said im])eachment, and same are in great forwardness, and nearly ready for publication. And Plaintiffs well hoped to have had the full benefit of said appointment, and of publishing said trial in pur- suance thereof, and that no person would have interfered in pub!i5.iiing or printing said trial or the proceedings thereon, or any part thereof. But now so it is, Sec. Charge, that Defendant, J. C. hath ])rinted, or caused to be printed, and said Defendants, T. N. L., ^Vc. have published and sold, or caused to be published and sold, a book or volume, purporting to contain said trial and proceedings tiiereon, and they, said Defendants, have respectively so printed and published, or caused to be piinted and ])ul-lished, same trial, r»nd adverliied same for sale, under the tide and in the words and figures BILLS FOR LITERARY PROPERTY. 289 following; that is to say, " The trial, by impeachment, of Ilonry Lord " Viscount iM. tor high crimes and misdemeanors, before the IJouse ot " Peers, in Westminster Hall, between the and ; to " which is prefixed a sketch of t!ic life and political character of his " Lordship, and complete account of the proceedings in Parliament re- *' lative to the charge.-, on which the impeachment was founded." And in s^idi advertisement it is expressed thafsaicl trial, hook or woi k. is sold by them, said Defendants, at the piice of 10s. Gd. each in boards, or to that elfect. And said last named Defendants respectively have or hath sold, or caused to be sold, a great number of copies to the amomit of several tliousand copies of said trial and proceedings, so published and advertised by them respectively as aforesaid, and have or hath many htnidred copies more of the same printed book, ready for sale, and they Defendants, are still continuing to sell same ; and they have received considerable sums, and have made, and stili do make considerable pi'ofii by the sale of such book, and so countenance such proceedings- they Pretend that such book, so printed and pubhshed, and advertised for .sale, and sold, does not contain any part of said trial of said Henry Lord Viscount ^L in said High Court of Chancery, or of the proceedings on said impeachment, or that such part, if any, is inconsiderable, or that said publication contains oilier matter which is their property. Charge, that said publication, book or work, contains the speeches and evidence or great part of the speeches and evidence delivered and given upon said trial, and the defence of the said Henry Lord Viscount M. by his counsel, and other parts of the proceedings on the said trial, and that the rest of said publication is very considerable, and so said Delendants well know, but contend they have respectively desisted from publish- ing and selling said book, the contrary whereof Plaintifts charge to be the truth. Charge, that although Defendants, T. N. L , &c. have, as they have alleged, discontinued the sale of said work, at their own shop or ware- house, yet the same is now selling at the shops or warehouses near to or adjoining the shop or warehouse of them the said last named Defen- dants, and at divers other places. Charge, that said pubhcation is now selling, and sold by the direc- tions, and on the account and for the benefit of said last named Defen- dants ; and said Defendant, J. C. threatens and intends to print, and said other Defendants threaten and intend to continue to publish and sell the said trial, for their own benefit, and refuse to account with Plaintifis for the profits which they have already made for t!ie pubhcation and sale thereof, All which, &c. Whether, n, and whether an injunction could be obtained, or an action brought either in a court of equity or law against Defendants, for such ])ubli( ation ; upon which case the Solicitor-(ilied, and exposed to sale, many copjies of the said overture, so set for the harpsicord, and of the said, &:c. or of some part or parts thereof, and to conceal their said piracy, they sent the plates on which the said music, or some part or parts thereof, was or were en- graved, beyond sea, and caused the same to be printed there on foreign paper, and then imported the same ; and the said J. L. &zc. have also in their possession or power, a number of copies of the said overture or symphony so set, and of each of the said works, &:c. or of some part or parts thereof, which they know to have been printed or imported witli- oul the consent of your Orator, and which they threaten to publish, ex- pose to sale, and sell. And your, &:c. that having purchased the copy- right in the said overture or symphon\', and in the said works, &c. of the said J. II. the autlior and composer thereof, your Orator has a right to all the benefit to be derived from the ownership or property thereof, for the term of years from tiie day of the first publica- tion of the same respectively ; and llnit, having such right, and the said J, L. Sec. having, as aforesaid, already infringed, and threatening here- after to infringe the same, your Orator hath, by himself and his agents, freq'icntly applied to them to nccount with your Orator for the sums received by them, or either oi them, or for their, or either of their use, as the price of the copies which tlu y wrongfully, in manner hereinbefore mentioned, have published exposed to sale, and sold, and also to refrain hereafter from publishing, exposing to sale, or selling any copy or copies of the said works, or cither of them, or any part or |)nrts thereo'', printed or imp'orted, without the consent of yoiu* Orator, until your ()r; - tor's interest in the said copyright shall exj^ro, with which just and rea- sonable requests, Arc. But now, vvc. [irt tend that your Oralor never purchased the said original ovutnroj and books or works from the BIIJ.S FOR MTEUARY PUOFKRTY. 293 eaid J. fl. Charge contrary, that he did purchase the same from the said J. H. and paid to him the consideration agreed upon between them,, and %o tliev will admit ; but then they pretend that they have not caused the said overture or symphony to be set for the, &c. and' have not pub- lished, ex))osed to sale, or sold any copy or copies of the said, (Vc. or of any part or parts of thom, or either of them, which liatli or have been j)rinte(! or imported witliont the consent of your Orator, in writing, signed in tlie presentee, tVc. Chari^es conlrari/. And that they, or one of them, have or halh printed, or caused to be printed and imported, or caused to be imported, without the consent of your Orator, many copies o\l the said overture, and of the said books or works, and also of some part or parts thereof, great numbers of which they have published, exposed to sale, and sold, and which they threaten to continue to pub- lish, expose to sale, and sell. And your Orator further charges, that the said J. L. &c. are considerable dealers in music, and that they, or one of them, keep, or choose to be kept, some book or books of account or accounts, in which they, or one of ihem, usually enter, or cause to be en- tered, the articles which they sell and dispose of in the way of their trade j and particularly, your Orator charges, that the said confederates, or one of them, made, or caused to be made, some entry or entries in some book or books of the said operas or works of the snid overture or symphony, so set for the, &c. which have been sold or disposed of by them, or one of them, or upon their, or one of their accounts ; and the said confederates, or one of them, or some other person or per- sons, to their, or one of their use, or with their or one of their privity, now have or hath, or lately had the said book or books, entry or entries, or some of them, or some copy or copies of them, or some of them, in his or their custody, possession, or power, or the said confederates, or one of them, or some other person or persons, by their or one of their order, or with their or one of their privity, hath or have lately destroyed the said book or book*, or at least liie said entry or entries. And your Orator charges, that the said con- federates know or suspect, or have some reason to know or suspect, what number of the said operas, and of the said symphony or over- ture respectively, they caused to be thrown off and printed; and they or one of them, or some other person or persons for their, or one of their use, or with their or one of their privity, have or hath, in his or one of tJieir possession, custody or power, or lately had, some receipt or receipts, account or accounts, entry or entries, writing or writings, relating to the printing of the said operas and the said overture or symphony, and to the number of the same that was thrown off or printed ; and the said confederates, or one of them, know or knows, or c«n set forth either 8-= to ihoir or his knowledge, information or belief, how many copies of 294 BILLS FOR LITERARY PROPERTY. the same remain undisposed of, and so the said confederates will some- times admit, but then they pretend the selling of the said overtures for the, &'c. was not a piracy of the same, but your Orator charges the contrary. All wliich, &;c. (interrogate to eachfact.) Inquiry. And that they may set forth a full, true, and exact account of all and ^singular the copy or copies of the said overture or symphony set for, &c. {as in the body of the bill,') and whether the said confederates, or one and which of them, or any and what other person or persons by name, for their, or one and which of their use, or with their, or one and which of their privity, now have or hath, or lately had the said book or books, entry or entries, or any and which of them, or any and what copy or copies of them, or any and which of them, in his or their, and which of their custody, possession, or power. And that the said confe- derates may set forth, in the very words and figures thereof, all and sin- gular the said entry or entries, account or accounts, and may also leave the said book or books in the hands of their clerk in Court, for the in- spection and perusal of your Orator or his agents; and whether the said confederates, or either and which of them, or any and what other person or persons by name, by their, or one and which of their order, or with their, or one and wliich of their privity, hath not, or have not lately de- stroyed the said book or books, or at least the said entry or entries, and if not, what is become of the same ; and whether the said confederates, or one and which of them, do or doth not know or suspect, or have or hath not any and what reasons to know or suspect, what number of the said operas, and of the said symphony or overture respectively, they caused to be thrown off and printed, and how many of the same respec- tively they originally caused to be thrown oft' and printed, and whether they, or one and which of them, or any and what other person or per- sons by name, for their, or one and which of tlieir use, or with their, or one and which of their privity, have not or hath not, in his or their possession, custody, or power, or lately had, any and what receipt or receipts, account or accounts, entry or entries, writing or writings, relat- ing to the printing of the said, &c. and to the number of the same that was thrown oft' and printed, and that they may set forth the same in the very words and figures thereof; and may also leave the same in the hands of their clerk in Court for the inspection and perusal of your Ora- tor or his agents, and whether the said confederates, or one and which of them, do or doth not know or can set forth, either as to their knowledge, information, or belief, how many copies of the same remain undisposed of, and how many of the same respectively they the said confederates, or either of them, have or hath upon hand; and that the said Defendants BILLS FOR LITERARY PROPERTY. 295 may leave in the haiuls of their clerk in Court, for the inspection of your Orator or his agents, a copy of the said overture or symphony so set, &c. and a copy of each of the said, &c. or any part or parts of either of the said compositions which they, or either of them, have or hath so sold or caused to be sold. Prayer. And that an account may be taken, under the direction of this ho- norable Court, of all the sum and sums of money come to the hands of the said Defendants, or either of them, or of any other person or persons, for their or either of their use, as the price or consideration of the said overture or symphony so set, &c. and of the said books or works, or either of them, or of any part or parts of them, or any of them. And that the said Defendants may be decreed to pay the same to your Orator, and that they and eacli of their agents may be restrained by an injunction issuing out of and under the seal of this honorable Court, from printing, engrav- ing, or importing, and also from publishing, exposing to sale, or selling, any copy or copies, of the overture or symphony so set, &c. and of the said books or works, or any of them, or of any part or parts of them, or any of them, whic|i have been, or shall be printed, engraved, or imported without the consent of your Orator, obtained according to law, until your Orator's aforesaid interest shall expire. And for further relief. 296 SEC. XIX. BILLS OF INTKRPLKADER. A BILL of Interpleader is where the person exhibiting the Bill claims no right in opposition to the rights claimed by the persons against whom the Bill is exhibited, but prays the decree of the Court touching the rights of those persons, for the safety of the person exhibiting tJie Bill. Mit. 32. But that which is commonly called a Bill of Interpleader, is that which is exhibited by a third person, who, not know- ing to whom he ought of right to render a debt or duty, or pay his rent, fears he may be hurt by some of the claim- ants, and therefore prays that they may interplead, so that the Court may judge to whom the thing belongs, and he fee thereby rendered safe on the payment : as w here two parties are pretending title at one and the same time to an estate, and are harrassing and suing the tenants for non- payment of rent. To this Bill the Plaintiff must annex an affidavit that he does not exhibit it by fraud or collusion with all, or either of the Defendants, or of any other person or j)ersons, but only to be indemnified, and to pay his rent or debt safely, to such person to whom the Court shall order or adjudge the same to belong. The Plaintiff who brings a Bill of Interpleader com- monly offers by his Bill to pay the money or rent into Couit, for the benefit of such party to whom the Court shall adjudge the same to belong ; and in case he does not make such offer, the Court, upon ap))lication of cither of BILLS OF INTERPLEADER. 297 the Defendants, will order such Plaintiff to pay the money or rent into Court, or the Bank of England, for the benefit of such party to whom the Court, at the hearing of that cause, shall decree the same. An interpleading Bill is exactly upon the footing of an injunction to stay waste, and may be supported by affidavit of material facts. 2 Ves. jun. 101. It must appear by the Bill that there is some person ca- pable of interpleading, and it must shew that there is such a person in rerum naiura as can interplead. It nmst also shew that each of the Defendants whom it seeks to com- pel to interplead, claims a right, otherwise both the De- fendants may demur : the one, because the Plaintiff shews no claim of right in him ; the other, because the Bill shew- ing no claim of right in the Co-defendant, shews no cause of interpleader. If the Plaintiff shews no right to com- pel the Defendants to interplead, whatever rights they may claim each Defendant may demur. Mad. vol. i. p. 14-6- 39 298 J51I.LS or INTERPLEADER. ilUl of laUrplcLuhr hij Tenant for Paijvicnt of Rents of leased Picmhcs^ with Afjidavil annexed. lliinibly complaining^, slievveth unto 3'onr Lordship, yonr Orator A. I*. ot, Scc. that your Orator was, in and before the inoiUh o!' , which was in the year, &.c. tenant in possession of an undivided moiety or iialf part of, &c. at and under the yearly rent of X , lliercnpoii payable for the same, and which iiatl l-ecn theretofore irranted, together willi the other moiety tliereot', to him by indenture ol lease, bearing date, \:c. by one C. 1). then of. Sec. and wiio liatli long cilice departed this life, for a term of y<^i»i"s, months, and days, whicli expired long since ; and yom- Orator continued in the posses^ion thereof, and there then becajiie and was due from your Orator the sum of J! as lor years rent of the said premises, at and after the rate of X per annum, out of which your Orator claims, and is entitled to, an al- lowance of the sum of X for taxes and other outgoings paid by him in respect of the said moiety of t!ie said premises during the time uloresaid and which sum of X being deducted from the said sum of £ , leaves a clear l>alai!ce of the sum of X now due 1 herefrom, and to be paid by your Orator to tlie person or persons en- titled to receive the rents arid profits of the said moiety of the said pro- mises. And your, Jvrc. that your Orator hath aUvays been ready and willing, and now is ready and v.illing, anil here!;y oilers to pay the said sum of X , in >:;ch manner, and to such persli:ill please to di.ect. And your Orators would have long since paid the saiti rent and the? arrears thereof, had there been any person or persons to whom he could have safely paid the same. But now, &c. Defendants severally set uj) claims to the said one undivided moiety of the premises, and to the rents and profits thereof, and each of them the said confederates do severally and distinctly insist on some light and title to the rents, or arrears of rents, now due and owing from 3 our Orator, for and in respect of the said one undivided n)oiely of the said premises, or some part or parts tliereof, ar.tl have and do demand the payment thereof, or of some part or p.uts therej)f, from ynijr Orator, and threaten to commence and bring several actions at law against your Orator lor the recovery thereol^ an 1 otherwise to \vx and harrass your Orator concerning tlie same. All wliich actings, df»ings, and pretences of the said confederates are contrary to e(|uily and good conscience, and Kiid to the manifest wrong and injiny oi your Orator in the premises. In consideration whereof, and forasmuch as your Orator is remediless in tlie premises by the strict rules of the common law, and can only be r>'iievul.»le in a court (;f equity, wli nature are pro- r.lLT-S OF INTERPLEADER. 299 porly rognizuble and irlirvaljlc, j a mdtty of rent to E. II. he being entitled to no more.) That the said E. II. never gave Plaintiffs, or either of them, any answer to the said letter, and on or about, &c. the said J. T. notwithstanding such offer of payment of the said E. H.'s moiety of the said rent to him, the said E. H. entered upon the said ground, &e. so occupied by the said R. L. and E. S, as tenants to Plaintiffs as aforesaid, and distrained their goods for the whole of the said arrears of rent, and gave notice in writing to the effect following ; that is to say, that he had, as authorized from E. H. distrained for two years, and three quarters' rent, and that unless paid within five days, goods would be sold. That immediately upon such distresses being made, and Plaintiffs not thinking it safe or secure for them to pay the whole of the said arrears of rent to the said E. H. after having received notice from the agent of the said E. D. not to pay the said arrears of rent to him the said E. II. and Plaintiffs, being apprehensive if they did, they would be liable to y:)ay the same again, and therefore, in order to gain time to be properly advised how to act vvitli safety, Plaintiffs caused the said goods and chattels of the said R. L and E. S. so distrained for the said arrears of rent, to be 302 BILLS OF INTERTLEADLR. replevied, and entered plaints in replevin, in the Consistory Court of tlie Slierifl' of' IVIiddlescx, and liave since caused writs of recordari facias /oquclarn, to be brought, returnable the first return of Michaelmas term , and removed the said plaints into his Majesty's Court of King's Bench. Tliat Plaintifls are not able to determine how or in what manner they ran, witii safety and security, pay the said arrears of rent, because, on the one hand, the said J. T. who has subscribed his name to the said notices, as duly authorized by the said E. H. only, and which said E. H. accord- ing to the will of the said N. A. is entitled to only one-half part thereof, lias made a distress for the whole arrears of such rent, as due to the said G. H. ; and, on the other hand, the said E. D. who is, by the said will, entitled to the other moiety of the said arrears of rent, insists, that Plain- tiffs shall not pay the said rent to tiie said E. II. All which, &;c. ; and forasmuch as Plaintiffs are remediless in the premises, without the aid of a court of equity, where the said several claimants may interplead, and settle and adjust their several rights, claims, and demands, between them- selves, so that Plaintiffs may be enabled to pay the said rent, and arrears of rent, with safety. To the end. Sec. Prayer. And that the said confederates may set forth to which of them the said arrears of rent belong, and by what right or title they respec- tively claim the same; and that they may interplead and settle and adjust their said demands between themselves, Plaintifls being ready and willing to pay the said arrears of rent, or such part thereof as this honorable Court shall adjudge or think Plaintiffs liable to pay, after deducting the land tax, and otlicr things, as are charged thereon, for the landlord to pay, to the person or persons to whom the same shall appear of right to belong, being indemnifieited his bill in this Court against Plaintiffs as executors of the said sir J4. thereby setting forth that the said legacy BILLS OF INTERPLEADER. 305 of £ with the rest of the fortune of the said E. by certiiin articles, &c. and thereby praying, that the said £ and interest, the remainder of the said trust money so due on sir H.'s bond, ought to be laid out in such purchase as directed by aforesaid articles, or paid to him as heir at law, to his sister, and be paid to him accordingly out of the assets of sir H. And tlie said D. insists on the payment of the said £ and interest so secured by the said bond, and that he Is entitled tlicreto in his own right, and not upon aily trusts whatever. And Plaintiffs being will- ing and desirous to pay off said bond by and out of the assets of the said Testator, gave notice of the said claim and proceedings to the said De- fendant D. and requested the said T. and D. respectively cither to settle their respective clairps and disputes between themselves, and agree and con- sent to the payment of the said £ and interest, to one of them, out of the assets of the said sir H. or to permit Plaintiffs to pay the same into the Bank of England, or to invest the same in government securities until such claims were determined. And Plaintiffs hoped in the mean time, that they would not have been sued or molested by the said Defendants T. and D. or either of them upon, or concerning trust money or bond. But Defen- dants refuse either to adjust the said claims between themselves, as they ought, and in order to liarrass Plaintiffs, Defendant D.liath lately brought an action in the Common Pleas against Plaintiffs and said S. T. to recover the said £ and interest out of the assets oi'tlie said sir H, and to give some colour thei'oto, the said D. Pretends, that the fortune of said E. or any part thereof, was not by articles made previous to their marriage settled to be laid out in lands to such uses as aforesaid, but that she the said E. had {X)wer by her v.i'l, or any writing purporting to be her will, to give, limit, and appoint, as well the said portion in such manner as she should think fit, and that she by virtue of such power, by her last will as she alleges, duly executed in the manner prescribed in the said settlement, appointed her whole to him, or otherwise gave him the interest and produce thereof for his life, and some other share or interest therein, with power to dispose thereof, and that he, under the said will, has a right to recover and receive the money due on the said bond, and that the said S. T. hath not any right to the sard £ or the interest thereof. But said Defendant D. refuses to pro- duce to Plaintiffs the said marriage articles or will, to shew how he makes out liis claim thereto, under a pretence tliat the said bond is made ab.'io- lutely to him. And threatens, that if Plaintiil's pay said £ that he will compel them to pay the same again. Charge, that they are ready and have offered to layout the said £ and interest so due on the said bond, in such government or other se- curity, as said D. and T. shall agree upon, or to lay the saiJ-£ and interest, in case tbev would determine their reepectivo claim?, and 40 50G BILLS OF LMEUrLEADER. not perplex Plaiiilills who have no interest in the matters in question. Nevertlielcss, they severally insist on proceeding in the said action and suit against Plaintiffs, although they well know that Plaintiffs cannot with safely pay the said £ and interest, to either of them. And Defendant ^\^ tlie surviving Trustee, under the settlement or some assign- ment, pretends, that he is entitled to receive the said £ and interest, but for whose use or benefit he refuses to discover. To the end, &ic. Prayer. 'I'hat the rights and claims of the Defendants of, in, and to the saiu £ and ii.terest. may be settled and determined by the decree cf this honorable Court. And that Plaintiffs may be at liberty to pay the said £ and interest, from Michaelmas day last, into the Bank, in the name of the Accountant-General, subject to the order of the Court, which Plaintiffs are ready and willing, and hereby offer to pay accordingly. And that Defendants may be interplead- ing among themselves, according to law and equity determine their respective claims to the said £ and interest, and for an in- junction against said Defendant D. and upon such payment being • J made by Plaintiffs, that said Defendant D. may deliver up to them the said bond Ij be cancelled. And for further relief. Bill of Inlcrplcader by Tenants against Executors, under a Will, and Trustees under a Deed, and against an Infant Tenant in Tail, the Trustees claiming an Apportionment of the Rent to the Ceath of Tenant for Life, and the Executors claiming the whole half-year^ Rent for the Infant Tenant in Tail, and an Injunction to restrain them from proceeding at Law. States, that T. B. late of, &c. deceased, did, when he was of sound and disposing mind, memory and understanding, duly make and pubhsh his last will and testament, bearing date, &c. which was executed and attested in such manner and form, as by law is required, for passing real estates, whereby (amongst other things) he gave and devised, Arc. (all his manors and messuages, &c. to lord .M. and J. JM. two of the Defendants, subject to certain annuities in trust for J. B. since deceased, for life, sans waste remainder to his first and other sons in tail male, Scc. a power to the person who should be in possession, under hand and seal, to lease, .S'c. and appointed them executors) as in and by, &c. HILf.S OF INTERPLEADER. 307 That part of tlie residue of the said Testator's personal estate, consisted of the sum of £ , lent by way of moitgage on tlie security of certain estates and premises, situate, . him surviving, and he the said I. B. thereupon, under and by virtue of t!ie said will, which hath since been established under a decree of tlii.^. Court against the Testator's heir at law, entered into the possession and receipt of the said manor, hereditaments and premises thereby devised, and also of the said mortgaged premises. But the said J. B. being some tinip afterwards much involved in debt, and being desirous of making a pro- vision for the payment of sucli debts, did, by certain indentures of lease and release, bearing date, &c. duly convey all his estate and interest in the said premises, &c. and in the said mortgaged premises unto, Sec. &:<-. {state deeds shortlt/.) (To W. L. and T. two other Defendants, for the term of years, if he should so long live, upon trust to lease, &:c. and manage estates, and allowing an annuity of ^6' to J. B. and surplus for his creditors) as in and by, &c. That the said I. B. departed this life on or about, &c. having duly made his will, and appointed G. D. another defendant, with ceil;iin other persons, executors thereof, but the said G. D. alone proved the same, and acted in the execution thereof, and the said J. B. left J. B. another Defendant, an infant under the age of 21 years, his eldest son him surviving, who thereupon became, and now is tlie first tenant in tail of the said manors, lands, and hereditaments, and also of the said mort- gaged estates and premises, under and by virtue of the limitations con- tained in the said will of the said T. B. and the said J. B. being an infant possession of the several estates and premises was taken by the said trustees named in the will of the said T. B. on his behalf, an i a receiver hath been since appointed thereof, under an order made in a cause insti tuted, for that, amongst other purposes, by the said J. B. the infant, h\ his next friend. That the whole of the said manors, &c. together with the said nuirt- gaged premises, were let or demised by the said J. B. now deceased. under parol or verbal agreement, in different parts or parcels, aiiil al and under different yearly rents to Plaintiffs as tenants thereof respectively, from year to year, and the several rents reserved and made payable by Plaintiffs for the said lands and hereditaments in their respective occu]>a- tions, were paid and payable half-yearly at Lady-d; ilh J. W. Plaintin''s immediate tenant of said tenement, called II. M. and the under-tenant of said J. W. decline to do any acts or act to bring the question, as to the real boundary between said tenement, for a legal determination, well knowing that many persons who are now living, and much advanced in years, can prove that the boundary is really such as is hereinbefore mentioned, and hoping that such persons may die before the expiration of said lease of said tenement, called II. M. whereby Plaintiff would be deprived o/ the benefit of their testimony. All which, &:c. Prayer. That PlaintitFmay be at liberty to examine his witnesses to the seve- ral matters and things hereinbefore mentioned, and particularly re- specting the boundary between said tenement called II. M. and THE TESTIMONY OF WITNESSES. 317 said tenement called P. And that Plaintiff may be at liberty, on all future occasions, to read and make use of the same, as he shall be advised. JMay it please, &c. W. A. Bill to perpetuate the Testim.onij of Witnesses to a Will. Humbly complaining, shewcth unto your Lordship, your Orator T. If. of, &ZC. brother of the half blood and devisee named in the last v. ill and testament of T. R. of, &c, deceased, that the said T. R. was in his life-time and at the time of his death, seised or entitled to him and his heirs, of or to divers freehold and copyhold manors, messuages, farms, lands, tenements, and hereditaments, situate in the several places here- inafter mentioned, and divers other places of considerable yearly value in the whole, and being seised or entitled, and having duly surrendefed the copyhold premises thereof to the use of his will, and bein^ of sound and disposing mind, memory, and understanding, he made his last will and testament in writing, bearing date, &c. which was duly executed by him in the presence of three credible persons, who attested and subscribed the same as witnesses thereto in his presence, and which will with the attestation tliereof, as in the words following, (that is to say,) (Sic, And your, &c. that the said T. R. afterwards and on or about. Sec. departed this life, without revoking or altering his said will, or any part thereof, wliereupon your Orator, by virtue of the said will, became entitled in fee-simple to all his freehold and copyhold estates, subject as to such part thereof as aforesaid to so much of the funeral expenses, debts and legacies of the said T. R., as his personal estate may fall short to pay. And your Orator accordingly soon after the death of the said T. R., entered upon and took possession of all the said estates, and is now in possession and receipt of the rents and profits thereof, and in the possession and enjoyment thereof. And your Orator well hoped, that he and his heirs and assigns would have been permitted to enjoy the same quietly, without any interruption from any person whomsoever. But now, &c. T. 11. of, &c. who claims to be cousin, and heir at law of the said T. R. alleging that he is the only or eldest son of T. H. and M. his wife, both deceased, which said T. H. as is alleged, was the only child of T. T., who, as is likewise alleged, was the only brother of the father of the said T. R. that left any issue. And he pretends, that the said T. R. did not make such last will and testament in writing as aforesaid, or that he was not of sound and dis- posing mind and memory at the making thereof, or that the same was not executed in such manner as by law is required for devising real estates ; and therefore he iu'ists that yoiir Orator hath not any right or 318 BILLS TO PERPETUAIL title to the real estates late of the said T. 11,, or any part thereof, but on his death the same descended unto him tlie said T. H. as his heir at law. Which your Orator charges the contrary of such pretences to be true. But nevertheless the said T. H. gives out, that he will hereafter dispute the validity of the said will, when all the subscribing witnesses are dead, whereby your Orator, or his heirs and assigns, may be deprived of the benefit of their testimony. All which, &c. In tender considera- tion whereof, and forasmuch as your Orator cannot perpetuate the testimony of the subscribing witnesses to the said will without the as- sistance of a court of equity before your Lordship. To the end, &c. r layer. That your Orator may be at liberty to examine his witnesses with respect to the execution and attestation of the said will, and sanity of mind of the said T. R. at the making of the same, so that their testimony may be perpetuated and preserved. May it please, &c. W. A. Tray Subpoena against T. IL Observations. — Bills to perpetuate the testimony of witnesses are only proper where the Plaintiff, by being in possession and undisturbed, has no opportunity of asserting or trying his right at law. But where the Defendant is in possession, or has disturbed Plaintiff, they are not pro- per, because Plaintiff may have a remedy at law. N. B, In the words of course omit the word '' decree," Bill to perpetuate Testimony of Witnesses as to a Mar- riage, Humbly complaining, &-c. your Orator C, B, of, dire, an infant under the age of twenty-one years, that is to say, of the age of years or thereabouts, by his next friend, that A. B. C, late of, &c, but now de- ceased, was, at the time of making his m ill hereinafter mentioned, and of his death, seised of, or well entitled to in fee-sin)ple. considerable real estates in the several counties of, &:c. and did, on or about, &c. duly make and publish his last will and testament in writing, which was executed and attested as by law is required for the passing of real estates, and did thereby, amongst other things, give and devise, &c. And your, iSjc, that the said A. B. C. departed this life on or about, &c. without having altered or revoked his said will, leaving the said W. J. S., E, B. S., and A. B, him surviving; that upon his death the said W, J, S, entered into and upon the possession of the said estates ia THE TESTIMONY OF WITNESSES. 319 the said counties, Src. so devised, and by virtue of tlie said will became possessed of the said estates for the term of years, determinable by his death And the said W. J. S. afterwards departed this life on or uhout. &c. without issue male, whereupon the said E. 13. S. entered hito and upon the possession of the said several estates so devised, and by virtue of the said will became possessed thereof, for the like term of years, determinable by his death. And the said E. B. S. also de- parted this life without issue male, in or about, &c. and thereupon A. B. who was next in remainder to the said estates under the said will, entered into and upon the same, and became possessed thereof for the like term of years, determinable upon his death, and hath ever since been, and now is, in such possession. And your, &c. that the said A. B. in- termarried, on or about, &^c. with X. Y. his first wife, who departed this life on or about, &c. leaving no other issue than daughters. And that the said A. B. on or about, &c. intermarried in the parish church of, &c. with M. G. of, &:c. his present wife, and that your Ora- tor, who was born on, &c. is the only issue of that marriage, and under and by virtue of the said will of the said A. B. C. now is, and stands seised to him and the heirs of his body, of the reversion or remainder of the said several estates expectant on the determination of the said term of years, now vested as aforesaid in the said A. B. And your, &c. that I. R. Y. of, &c. was the eldest son of Z. Y. in the said will named, and that the said I. R. Y. departed this life on or about, &5C. leaving R. M. Y., one of the Defendants hereinafter named, his eldest son, and A. Y. and B. Y., also Defendants hereinafter named, his other sons, him surviving. And your Orator well hoped, that his title as tenant in tail in remainder of the said several estates, expectant on the determi- nation of the said term of years, now vested in his father, the said A. B. would in no manner have been disputed, but now so it is, &c. the said Defendants insist and pretend, that the said A. B. and M. G. were not legally married at the time of the birth of your Orator, or that your Orator was not the issue of such marriage, and that therefore your Orator has no such title as tenant in tail as aforesaid ; whereas your Orator charges the contrary thereof to be the truth, and that although the said A. B. did, from motives of respect to the memory of his late wjfe, for some time conceal his marriage with the said M. B , yet that the said A. B. and M. B., then M. G., spinster, were duly married by licence on, &c. at the parish church of, &c. aforesaid, by the rev. R. F. of, &c. who was a particular friend of the said A. B. and M. G. ; and such marriage ceremony was performed agreeably to the rites and cere- monies of the church of England, and in the presence of C. D., the curate of the said parish, and of C. F. the clerk thereof, and of F. G., the sis- ter of the said M. G. And yotu" Orator further ( barges, that your Ora- 320 BILLS TO PERPETUATE, &C. tor was born on the, &:c. in the parish of, Sec. at a house in which your Orator's said father and mother had for some lime resided, and in the presence of Dr. G., a physician of great eminence, and of P. W. who attended your Orator as nurse, and of F. the wife of, &c. a repectable pubHcan in the said parish, who happened then to be in the house, and of the said F. G., the sister of your Orator's mother, who had lived with her during her pregnancy, was also in the house at the birth of your Orator, in an adjoining room. And your Orator was privately baptized on, &c. by the said R. F., and was afterwards publicly baptized at the parish church of, &c. and the register of your Orator's birth was made at the chapel in street, on the, Src. in the registry kept therein for the use of protestant dissenters. But nevertheless the said R. M. Y. and B. Y., although they well know the several facts aforesaid, yet mean and intend to dispute the validity of your Orator's said title to the said estates after the death of the said A. B., when the several witnesses ne- cessary to establish the same are dead, many of whom are now infirm and much advanced in years. To the end, &c. Prayer. And that the said Defendants may answer the premises. And that your Orator may be at liberty to examine his witnesses to the seve- ral matters and things hereinbefore mentioned, and particularly with respect to the intermarriage of the said A. B. and 1\I. B., the father and mother of your Orator, and to the birth of your Orator after such intermarriage, so that the testimony of the said witnesses may- be preserved and perpetuated. And that your Orator may be at liberty at all future occasions to read and make use of the same, as he shall be advised. May it please, &rc. .T. L Pray Subpoena against R. M. Y., A. Y. and B. Y. 321 SECT. II. niLLS OF DISCOVERY. EVERY bill is in reality a bill of discovery, but the species of bill usuajiy distinguished by that title is a bill for discovery of facts resting in the knowledge of the De- fendant, or of deeds, or writings, or other things in his cus- tody or power, and seeking no relief in consequence of the discovery. This bill is commonly used in aid of the Juris- diction of some other court ; as to enable the Plaintiff to prosecute or defend an action at law, a proceeding before the king in council, or any other legal proceeding of a na- ture merely civil, before a jurisdiction which cannot com- pel a discovery on oath, except that the court has in some instances refused to give this aid to the jurisdiction of in- ferior courts. A bill of this nature must state the matter touching which a discovery is sought, the interest of the Plaintiff and Defendant in the subject, and the right of the first to require the discovery from the other. If a bill seek" ing a discovery of deeds or writings, also prays such relief as might be obtained at law if the deeds or writings were in the custody of the Plaintiff", he must annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the Defendant ; but a bill for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief grounded upon tliem, does not require such an affidavit. Mit. 52. 53. With respect to affidavits to accompany bills of this de- scription, the rule appears to be, that where a party comes only for discovery of a deed, he need not make oath of the loss of it, as he must do when he comes for relief; for he 42 J22 IJlLl.rr 01- I'isCOVKllV. is not allowed to translate the jiiiisdictiou without oath ninJe of the loss of the deed, and this is the constant dis- thiction. It is a general rule, ajjplieable indeed nut merely to this deserijuion of bill, but to all kinds of bills, that no person can be compelled to give a discovery t!;at may sidyect liin» JO a prosecution of felony, or to tuiswcr wliat is a matter of ;:candal, or wiiat mav lead to a le^ijal accusation, or to what mav suliject him to a penalty, and not merely what must; or any thing in the nature of a penalty, or forfeiture, tiie Defendant must then discover, but tlie Vv aiver ought to be 'hy all those wliocan claim any j)art of the penalty or for- feiture, fo; if the penalty belongs one half to the king and the other to a corporation, the waiver by the corporation, and not by the Attorney-Ceueral also is not sufficient. But if the Defendant has covenanted to answer any bill of dis- covery, and not to plead the acts inflicting pcnislties in such case he is bound to answer. Mad. Chan. I'AIA.^ or D1S€0\EKV, ^)5^H B,ill to force a Discovery of Deeds. Humbly complaining:, sliew unto your Lordship, your Oraliix I. 1. .r , and B. I. of . two of the dnughters of K. I., latR of , deceased, that by some deed or deeds, will or wills, duly made and executed by your Orator's ancestors, or some or one of them. ■ livers manors, messuages, lands, tenements, and hereditaments, ofcon- siderj'.ble yearly value in the whole, situate, lying, and being in diver;^ }iarishes and places wilhin the several counties of G., 1)., and JM,, were limited and settled, or assured and agreed to be limited, settled, arid asstned to, for, or upon particular uses, trusts, intents, or purposes, under which, or some, or one of them, your Oratrixes' ancestors, or seme or one of them, and particularly your Oratrixes' said father were or was en- titled to the premises as tenant in tail general or tail male, or your Ora- trixes'. said father was entitled thereto, for his life, with remainder to iii;- first and other sons in tail male and (ail general, with remainder to the daughters, or issue of the body of your Oratrixes' said father, or in some other manner, so that your Oratrixes, and the other daughters of the said E. 1., had an estate or estates in remaiiider, in the whole, or part thereof, either as tenants in common, or other\vi. all the said manors, messuages, farms, lands, teneinents, hereditaments, and pre- mi.aid last mentioned confederates, or some of them, now have o>r halh, or lately had in tlieir, -^r one of iheir power or custody, divers maps, plans, teniers, copies of '■nurt-rolls, ear to be entitled thereto, together with all the evidences and writings relating thereto j and that the said W. K. T. W. and G. R. or such of them as are in possession of the said copyholds, may account with your Ora- trixes and their said sisters, and make them satisfaction for the rents and profits become due since the death of your Oratrixeb' said bro- ther, and received by them, or any or either of them, or by their or either of their orders, or for their or either of their use : and that an account may also be taken of the timber and other trees which have been cut down or felled by, or by the orders or order of the said Defendants, or any or either of them, which were standing or growing on the said estates, or any part thereof, and may pay and make satisfaction unto your Oratrixes and their said sisters for the value thereof; and that they may also be restrained by the in- junction of this honorable Court, from cutting down or felling any more timber, or other trees, on the said estates, or any part thereof, and from committing any further or other waste or spoil thereon. And for further relief, cVc. J. S. 329 CHAPTER V. BILLS NOT ORIGINAL. SECT. 1. BILLS OF SUPPLE.AIE?JT AND REVIVOR. BILLS not original are cither an addition to, or a conti- nuance of an original bill, or both. An imperfection in t!ie frame of a bill may generally be remedied by amend- ment, but the imperfection may remain undiscovered whilst the proceedings are in such a slate that an amendment can- not be permitted according to the practice of the court. This is particularly the case where, after the court has de- cided upon the suit as iramed, it appears necessary to bring some other matter before the coiut to obtain the full effect of the decision ; or, before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined, (in which case the practice of the court will not permit an amendment of tht^ original bill,) some otlier point ajjpears necessary to be made, or some additional discovery is found requisite ; and though a suit is perfect in its institution, it may, h^ some event subsequent to the filing of the original bill, become defec- tive, so that no proceeding can be had, either as to the whole, or as to some part, with effect, or it may become abated, .so that tliere can be no proceeding at all, either as to the whole, or as to part of tlie bill. The first is the case when. 'although the parties to the suit may remain before the court, some event subsequent to the institution of the suit, has either made such a change in the interests of those parties, or given to some other person such an interest in the matters in liti- gation, that the proceedings, as thev stand, cannot have tlicii 4.3 330 HILLS OF SLPPLF:Mb:M AND RKVIVOK. full efl'cct. The other is the case when, bv some subser^uent event, there is no person before tlie court by whom, or against whom, the suit, in the >\ hole or in part, can be pro- secuted. MIL 53. When any event ha|)])ens subse(|uent to the time of lilinii an original bill, u liich gives a new interest in the matter in dispute to any person not a pfuty to the bill, as tlie birth ol' a tenant in tail, or a new intei est to a party, as the happening of some other contingency, the defect may be supplied by a bill which is usually called a supplemental bill, and is in fact merely so with respect to the rest of the suit, though with respect to its inmicdiate object, and against any new party, it has in some degree the effect of an original bill. If any event happens whi(;h occasions any alteration in the interest ol' any of the parties to a suit, and does not deprive a Plaintiff suing in his own right of isis vv'iole interest in the subject, as in the case of a mortgage, or other j;artial change of interest ; or if a Plaintiff suing in hi.s ov. n right is entirely deprived of liis interest, but he is not the sole Plaintiff, the defect arising from this event may be su])plied by a Ijill of the same kind, which is likewise commonly termed, and in some respects is, a supplemental bill merely, tiiough in otlier respects, and especially against any ne^v |)arty, it has also in some degree tlie effect of an original bill. In all these cases the parties to the suit are able to proceed in it to a certain extent, tliough iVom the defect arising from the event subsequent to the fding of the original bill, tlie proceedings are not sufficient to altaiji tlicir lull object. Mit. 60. A supplemental bill must state the original bill, and the proceedings thereon ; and if the supplemental bill is occa- sioned by an event subsequent to the original bill, it must state that event, and the conse(juent alteration with resjject to the parties, and in general the supplemental bill must Bll.I.rf OF SUPFLEMENT AND REVIVOR. 331 pray, that al! the Defendants may aj)poar and answer to the charges it contaiiis. For if the snpj)lemental bill is not for a discovery merely, the cause must be heard uj)on the snpplemental bill at the same time that it is heard upon the original bill, if it has not been before heard ; and if the cause has been before heard, it must be further heard upon "the sup])!emental matter, if indeed the alteration or acqui- sition of interest happens to a Defendant, or a person neces- sary to be made a Defendant, the snpplemental bill may be exhibited by the Plaintiff in the original suit against such person alone, and may pray a decree upon the parti- cular supplemental ma ter alleged against that person only, unless (which is frequently the ca^sc) the interests of the other Defendants may be affected by that decree. Where a supplemental bill is mciely lor the puipose of bringing for- mal parties before the court as Defendants, the parties, Defendants to the original bill, need not in any case bn made parties to the supplemental. Harrisoii's Chancery. An original bill in the nature of a supplemental bill must state the original bill, the proceedings upon it, the event which has determined the interest of the party by or against whom the former bill was exhibited, and the manner in which the property was vested in the person become enti- tled, it must then shew the ground upon which the coiut ought to grant the benefit of the former suit to or against the person so become entitled, and pray the decree of the court adapted to the case of the Plaintiff in the new bill. This bill, though partaking of the natme of a supplemental bill, is not an addition to the original bill, but another original bill, w!iich, in its consequence:, may draw to itself the advantage of the proceedings on the former bill. liar-. rlso'iis Chancery. 332 BILLS OF SUPPLEMLNi AND ULVIVOK- A bill of revivor must state the original bill, and the several proceedings thereon, and the abatement ; it must shew a title to revive, and eliarge that the cause ought to be revived, and stand in the same condition ^^■ith respect to the parties in the bill of revivor, as it was in with respect to the parties to the original bill at the time the abatement liappened, and it must pray thnt the suit may be revived accordingly. It may be likew i^c necessary to pray that the Defendant may answer the bill of revivor, as in the case of a requisite admission of assets by the representative of a deceased party. In this case, if the Defendant does admit assets, the cause may proceed against him upon an order of revivor merely ; but if he does not make that admission, the cause must be heard for the purpose of obtaining the necessary accounts of the estate of the deceased party to answer the demands made against it l)y the suit ; and the prayer of the bill therefore, in such case usually is, not only that the suit may be revi\ ed, but also, that in case the De- fendant shall not admit assets to answer the purposes of the suit, those accounts may be taken ; and so far the bill is in the nature of an original bill. If a Defendant to an ori- ginal bill dies before putting in an answer, or after an an- swer to which exceptions have been taken, or after an amendment of the bill to w hich no answer has been given, the bill of revivor, though re([uiring in itself no answer, must pray that the person against w horn it seeks to revive the suit may answer the original bill, or so much of it as the exceptions taken to the answer of tlu> former Defendant extend to, or the amendment remaining unanswered. BILLS OF SUPPLEMENT AND REVIVOR. 333 Supplemental Bill, Mating a further Error in printed Particular, and claiming a further Compensation. Iliiniljly complaining, 8^c. your Orator A. IM., of, &c. that on or a!)0(it, v.Vc. your Orator exiiibitod his original bill of complaint in this honorable Court, against, &c. the Defendants hereto, stating, i^'c. &'c. (state original bill) and praying therefore, that &c. And your, &c. that all the said Defendants, being duly served with process, appeared and put in their answers to the said original bills, and witnesses have been ex- amined, and publication hath been passed, as in and by, &:c. And your, &c. by way of supplement, that, in the printed particulars dis- tributed at and previous to the said sale of the said manor and premises, and under which your Orator purchased, C. J., esq. was therein described to be in possession, as tenant to the said lord A., of acres of land, held for one life, called, &c. and of certain other lands held for two lives, making, together with the said acres, acres, roods, and perches ; and the said printed particulars referred to a certain paper or terrier, called the terrier of , and in such terrier the said lands so held by the said C. J., which were thereby made to amount to the said quantity o( acres, roods, perches, were particularly described, and, as part thereof, were stated the six following articles, &c. &c. And your, &:c. by way of supplement, that since publication hath passed in the said original cause, your Orator hath discovered, that al- though the said C. J. was in possession of the acres, roods, and perches, yet as to acres, part thereof, he held the same not as tenant to the said lord A. but as his own property, in fee-simple, (that is to say,) &c. &c. And your Orator sheweth, that — J., the widow of the said C. J. hath under a certain act of Parliament made and passed in the year of the reign of his present majesty, intituled " An act for inclosing lands in K., in the county of S.," claimed before the commis- sioners appointed thereby, and been allowed an allotment of land in respect of the said acres, as her own absolute property. And your Orator sheweth, that having purchased the said manor and premises upon the faith and confidence that the said acres, roods, and perches of land, in the possession of the said C. J., were held by him as tenant of the said Defendant lord A., according to the said printefl par- ticulars of sale, j'our Orator, since he hatii discovered that the said acres, part thereof, were the absolute property of the said C. J. hath re- peatcdl}' applied to the said Defendants, and required them to make to your Orator a reasonable compensation in respect thereof, with which, &c. refuse so to do, pretending that the said acres, roods, and perches were^ as described in the said particular of sale, held by 334 BILLS OF SUPPLEMENT AND REVIVOR. the said C. J. as tenant thereof to the said lord A., whereas your Orator diarges the contrary thereof to be the truth. To the end, &c, (interro- gate.) Prayer. And that the said Defendants may answer the premises ; and that it may be referred to one of the Masters of this honorable Court to inquire what compensation your Orator is entitled to, in respect of the loss of the said acres of land, and that such coniiiensation, together with interest thereon, may he paid out <»,■ the said sum of £ , if so much shall remain tliereuf, -d'ter satisfaction of the demands of your Orator by the said oiiginal bill or otherwise, by the said Defendant Lord A., and that this your Orator's bill of com- plaint may be deemed and taken as and for a bill of KU|)plement to his said original bill of complaint. And for further relief. J. L. Pray letters ?nissivc, ^'f. Supplemental Bill, Defendant having commenced an Ac- tion of Ejeet/uent since filing original Bill, and an In- junction from proceeding in said Action. Humbly complaining, sheweth unto 3'our Lordship, your Orator J. K. of, &c. that In or as of term, , your Orator exhibited his original bill of compliiint in t'lis honorable Tourt against IL B. S., and which said bill hath been amended by order of this honoral>le Court, thereby praying that the said I'efcndaut misjlil be decreed speedily to perform his agreomen! widi your Or.iior toiicliing the lease of the farm and premises in the said bill mentioned, and so grant your Orator a lease thereof for years, commencing from the expiration of his for- mer lease, at the yearly rent of £ , your Orator being willing and ready to do and perform every thing, on his part, required to be had and pertormed in pursuance of the said agreement. And your, &c. that the said Defendant appeared and put in his answer to the said original bill, as by the said bill and answer now remaining as of record in this honor- able Court, reference being thereunto had will appear. And your Orator sheweth, that since the fding of the said original bill, the said De- fendant hath caused an action of ejectment to be commenced in his Ma- icsty's Court of King's Bench at Westminster, for the purpose of emitting and turning your Orator out of possession of the said farm and premises, and the said action is still depending in the said court. And your Oratoi BILLS OF SUPl'Ll.iMENT A.ND KLViVOlt. 6.>D being advised, the said Defeiidiuit cannot support such action, and that your Orator is entitled to a specific pcrfonnaiice of the ;>aid agreement, as prayed by his ."-aid amended bill, he has, by himself and liis agents, several times applied to and requested the said Defendant to desist from proceeding in the said action, and he was in hopes that lie would have complied with such fair and reasonable request as in justice and equity he ought to have done. l*ut now so it is, may it please your Lordship tiiat the said H. B. S. refuses to comply with your Orator's said request, and insists upon proceeding in his said action, and to turn your Orator out of possession of the said tVirm and lands, to the manifest wrong and injury of your Orator in tlie premises. To the end, &c. Prayer. And that the said Defendant may be restrained, by the injunction of this honorable Court, from proceeding in the said action, and also from commencing any other action or proceeding at law for the purpose of turning your Orator out of possession of the said farm and lands. And for further relief. A. C. Pray Subpoena and Injunclion against H. B. S. Bill of Supplement, in the Nature of an original Bill, for a Legacy of Stock given to L L. in case he should claim it ivithm seven Years. Humbly complaining, sheweth unto your Lordship, your Oratrix L. S. T., of, &c. on behalf uC herself and all other creditors of L L., late of, &c. who shall come in and seek relief by and contribute to the expense of this suit, that, on or about, &c. your Oratrix exhibited her original bill of complaint in this iioriorable Court against L L., since de- ceased, A. M. C, now the wife of R. IL, clerk, and the governor and company ofthe bank ofEngland, thereby stating, amongst other things, &c. [state the h/U] and therefore {iraying. Sec. And your, l*Ic. that, soon after the filing of the said bill of complaint, your Oratrix obtained an injunction to restrain the said Defendant A. M. H, from transferring the said sum of stock, and that the said A. M, IL, and the said R. H., her husband, have since put in their joint and several answers to the said bill, but that no further proceedings have been had in the said cause, as in and by, «fec. And your Oratrix further sheweth unto your Lordship, by way of sup- plement, that, before the expiration of years from the death of the said testator L L., and in or about, c^'c. tiie said f. L.. the son, de- 336 KILLS OF SUPPLE. Mi: NT AM) RllVlVOH. parted this life, at M, atbresaiti, without having, as it is aHcgctl, ever roturned to England since the death of the said Testator, hut having duly made and published his last will and testanunt, in writing, which hath since been duly proved in the Prerogative Court of the archbishop of C. by G. W., of, &c. one of the Defendants hereto, the executor in England ; and the said G. W. hath by virtue thereof, possessed himself of the estate and effects of the said I. L., the son, to a considerable amount. And vour, <^"c. by way of supplement, that, afier the filing of the said original bill of com[)laint, and the obtaining of the said injunc- tion to restrain the transfer of the said stock, the said Defendants 11. II. and A. JNI. II.. or one of them, wrote divers letters to the said I. L., the son, at M. and received from him divers other letters ; and the said Defendants, or one of them, have now, or lately had, in their custody or power, the letters so received from the said I. L., the son, and also copies of the letters written by thein to the said I. L., the son, or memo- randums thereof, or the said Defendants can set forth the purport and ef- fect of the letters so received and written by them respectively. And vour Oratrix sheweth, that the said Defendants R. H. and A. M. II. in the said letters so written to the said I. L., the son, informed the said I. L. of the suit instituted by your Oratrix as aforesaid, and of the in- junction obtained therein, to restrain the transfer of the said sum of stock; and the said Defendants thereby prevailotl upon, or induced the said I. L. the son to delay returning to England in order to make a formal demand for the said sum of stock, according to the terms of tliesaid Testator's will. And your Oratrix sheweti), that the said Defen- dants R. H. and A. JM. II. have from time to time received the divi- dends on the said sum of slock, and have or ought to have laid out the same to accumulate according to the directions of the said Testator's will. And your Oratrix charges, that the said sum of stock, and all accumulations thereof, are part of the estate and effects of the said I. L.,the son, and ought to be applied in, or towards satisfaction of your Oratrix and the other creditors of the said I. L. in a due course of admi- nistration. But the said G. W. colludes with the said other Defendant.?, and declines to take any proceedings to recover and apply the said stock and accumulations accordingly. To the end therefore, &c. Whether, &c. {infcrrogrde to the supplemen- tal pnrf,) and whether after the filii:g of the said original bill of complaint, and the obtuining the said injunction to restrain the transfer of the said stock, or at some other time or times. an., d'c. praying that an ac- count might be taken of the personal estate and effects, &lc. That the said Defendants being served witli process issuing out of this honorable Court, to appear to answer Plaintiff's s;iid bill of complaint, appeared accordingly, and put in their answer thereto, and Plaintiff re- plied to said answer; but before any further proceedings were had in the said suit, a commission of bankruptcy under the great seal of Great Bri- tain was awarded and issued against the said Defendant B. who hath been thereupon duly declared and certified a bankrupt. And D. of, &c. having been lately chosen assignee of the said bankrupt's estate and effects, the major part of the commissioners named and authorized in and by the said ccaimission, have duly assigned all the late effects of the said bankrupts to the said D. and therefore the Plaintiff is advised, he is entitled to the same relief against the said D. as he would have been entitled unto against the said Defendant B. if he had not become a bankrupt. Inquiry. Therefore, thai the said Defendant may upon his corporal oath, full, true and distinct answer maks to all and singular llie matters aforesaid, BILLS 01 SUPPLEMENT AND REVIVOR. 389 according to the best of his knowledge and belief. And particularly that he may set forth whether Plaintiff did not, at or about such time as here- inbefore mentioned, or at what other time, exhibit his bill of complaint against the said Defendants as aforesaid ; and whether such proceedings as afon^said, or what other proceedings have not been had thereon ; and whether a commission of bankruptcy, and wlien, and about what time, was not awarded against the said. Defendant B. ; and whether he was not found and duly declared a bankrupt ; and whether his estate and effect b' have not been assigned by the major part of the commissioners, in and by the said commission named, to the said I. D. or to what other per- son or persona. Prayer. And that the Plaintiffs may have the benefit of the said suit and pro ceedings against the said D. and may have the same relief against him, as he might have had against the said B. in case he had not become a bankrupt. And for further relief, &c. Snpplemenlal Bill in consequence of the Bankruptcy of a Defendant. States that on the , Plaintiffs exhibited their original bill of complaint against I. T. Sec. &c. the Defendants thereto, thereby stating the several matters and things therein mentioned, and praying, &c. &c. That the said Defendants on being served with process, severally appeared, and Defendants T. C. &c. put in their answers to said bill, but Defendant B halh not yet answered same, and said £ hath been paid into court by Plaintiffs pursuant to an order for that purpose, and some other proceedings have been had in sai-d cause, as in and by, &c. That before any further proceedings were had in said cause, and on or about, (fee. a commission of bankrupt under the great seal of Great Bri- tain was duly awarded and issued against said Defendant I. B. who hath been thereupon duly found and declared a bankrupt, and W. W. of, &c. and D. M. of, &c. have been duly chosen assignees of said bankrupt's estate and effects. And the major part of the commissioners named in, and acting under the said commission, have duly assigned all theestate and effects of said bankrupt to said W. W. and D. J\l. and therefore Plaintiffs are advised, that they are entitled to prosecute and carry on the said suit and proceedings and to have the same relief against the said W. W. and D. M. as they should have been entitled to against said Defendant I. B. if he had not become a bankrupt. 340 BILLS OF SLPPLEMExM AND KEVIVOK. Prayer. And that tlic said DelViidaiUs W. W. and V). M. as well as Defendant B. may answer the matters aforesaid, and that the Plaintiffs may have the benefit of the said suit and proceedings against said Defendants W. W. and D. M. and may have the same relief against them as they might have had against said Defendant B. in case he had not become a bankrupt. And for further and other relief. Bill of Revivor upon the Death of Plaintiff, by his Ad- ministrator, the Exfci'tors vnder his Will havirig renounced. Humbly complaining, shewelh unto your I,onl>hi{), your Orator J. A. of, &c. that J. A. late of, &:c. but now deceased, on or about exhibited his original bill of complaint in this honoral)lc Court, against G. T. W. as the Defendant thereto, thereby stating such several matters and things as are therein for that purpose moreparlicularly mentioned and set forth, and praying, Ac. And your, 8:c. that ])roccss duly issued against the Defendant, but he being in Ireland, and out of the juris- diction of this honorable Court, he neither appeared, nor put in his answer to the said bill. And your Orator shcweth, that by an order, bearing date on or about the day of , npon the said J. A the Plaintifi', consenting, I'v'c. And your Orator sheweth, that process was sued out and served in pursuance of such order, and that the said Defendant thereupon appeared and put in his answer to the said bill of complaint. And your, tVc. that on or about the day of the said Defendant caused this honorable Court to be moved, that he might be at liberty to sue out execution against the said complainant in the aforesaid action, and thereupon the I'laintifl" .1. A. consenting by his codicil, ilc. And your, ef''nd;tni had hiet forth and praying, &c. And your, tVc. tliat the said T. H. being duly served with process, appeared to the said original bill, and put in his answer tliereto, and the said cause being at issue, the same came on to be heard before his Honor the Master of the Rolls, in tlic absence of the then Lord High Ciiancellor, when the Court was pleased to order and decree {set forth decree.) And your, &c. that before any further proceed- ings were had in the said suit, and on or about the day of the said J. II. departed this life, having first duly made and published his last will and testament in writing, bearing date on or about the, &c. and thereby appointed your Oratrix and sir S. L. and J. G. C. executrix and execu- tors of his said will, and having afterwards made and published a codicil to his said will, bearing date on or about, &c. whereby he revoked the appointment of the said sir S. L. and J. G. C. to be his executors, and appointed your Orators to be the executors of his said last will and testa- ment, with your Oratrix, in the place and stead of the said sir S. L. and J. G. C, and your Orators and Oratrix duly proved the said w ill and codicil in the prerogative Court of the archbishop of C. and thereby be- came the legal personal representatives of the said J. H. And your, &c. that the said suit, having become abated by the death of the said J. H. your Orators and Oratrix, on or about, &:c. tiled their bill of revivor in this honorable Court against the said J. H. thereby stating to the effect aforesaid and praying, &c. And your Orators and Oratrix shew, that the said suit and proceedings were accordingly duly revived, as in and by, &c. And your, &c. that some proceedings have been had before the Master, to whom this cause stands referred, but that no report hath yet been made thereon, and that on or about, &c. the said late Defendant J. H. departed this life, leaving W, H. of, &c. one of the tiefendants hereto, his heir at law. But your Orators and Oratrix shew that R. L. of, &c. that B. J. of, &:c. two other of the Defendants, hereto allege, that under and by virtue of the last will and testament of the said J, H. they the said last named Defendants are entitled to the equity of redemp- tion of the said mortgaged premises. And your, &c. that the said suit, having become abated by the death of the said late Defendant J. H. your Orators and Oratrix are, as they are advised, entitled to revive the said suit and proceedings, in case it shall appear that the equity of redemption of the said mortgaged premises hath descended to him, or otherwise to have the benefit of the said suit and proceedings against the said R. L. and B. J. if it shall appear that they are such devisees as aforesaid 5 to the end, therefore, that the said W. II. R. L. and B. J. may, upon their several and respective corporal oaths, and according to their several and respective knowledge, remembrance, information, and belief, full, true, and perfect answer make to all and singular the matters and things afore- said, and that as fully and particularly as if the sume weie here repeated, 348 BILLS OF SUPPLEMENT AND REVIVOR. and they thereunto distinctly interrogated. And that in case it shall appear that the equity of redemption of the said mortgaged premises descended upon the death of the said T. H. to the said W. H. then that the said suit and proceedings therein may stand and be revived against the said W. II. and be in the same plight and condition as the same were in at the time of the abatement thereof. But in case it shall appear that the said equity of redemption was devised to the said R. L. and B. J. then that the said decree, made on the hearinti of tiiis cause, may be prosecuted and carried into kdl effect against tlicin the said R. L. and B. J. in the same manner as the same might have been prosecuted against the said late Defendant, T. II. and tliat all necessary directions may be given for efiectuating the several matters aforesaid. May it please, &:c. J. L. Bill of Revivor and Supplement, upon the Death of one Plaintiff, and upon a Defendant becoming a Bankrupt. Humbly complaining, shew unto your Lordship, your Oratrixes ?nd Orators, S. P. of, &c. E. U. of, Szc. R. A. of, &c. and G. T. W. and A. his wife, that on or about the day of , your Oratrixes and Orators, together wilh J. A. the elder, gentleman, since deceased, exhibited their original bill of complaint in this honorable Court, against J. A. of, &c. S. A. of, &c. J. K. of, tic. &c. three of the Delendants hereinafter named, thereby stating such matters and things as are therein for that purpose more particularly mentioned and set forth, and praying that, &c. And your, &c. that all the said Defendants, being duly served with process, appeared to the said bill, but that only the Defendants, S. A.J. R. and J. K. have put in their answers thereto. And your. Sec. that by an order, bearing date, &c. it was ordered, &c. that Defendants should pay into the bank the money admitted by their answer to be due ; as in and by the said bill, answer and proceedings, now remaining as of record in this honorable Court, &c. And your, &c. by way of supplement, that in or about, &c. a commission cvf bankru|)t, under the great seal of Great Britain, was duly awarded and issued against the said Defendant J. A. the younger, and that the said Defendant was thereu|jon duly found and declared a bankrupt, and the usual assignment of his ])ersonal estate and effects, and a bargain and sale of his real estate was made and executed to the paid complainant J. A. the elder, and R. B. of, &c. another D€;fendant hereto, who were duly chosen assignees by the creditors for that purpose, as in and by, 6»jc. And your, &c. that on, &c. the said comjilainant J. A. departed this life, leavii-g the said Defendant J. A. the younger, his heir at law, and having first duly made and published his last will and BILLS OF SUPPLRMEiNT AND RKVIVOR! 349 lostanient in writing, bearing, &-c. a^nd tlierehy appointed M. C. and W. VV. the executors thereof, and the said M. C. and W. W. having re- nounced the probate of the said will, letters of administration, with the said will annexed, bearing date, ^c. have been granted by the proper Ecclesiastical Court to the said Defendant J. A. the younger, who hath thereby become and now is the personal representative of the said com- plainant, J. A. And your, &c. that the said Defendant R. B. as the surviving assignee of the said Defendant J. A. the younger, under the commission of bankrupt awarded against him as aforesaid, claims to be entitled to all right and interest of the said Defendant J. A. the younger, under the will of the said Testator K. A. and that the said suit and pro- ceedings having become abated b}' the death of the said complainant J. A. your Oratrixes &c. are advised that they are entitled to have the same revived against the said Defendant J. A. they young. the younger, died possessed of, interested in, and entitled unto, a very considerable personal estate, and that they his said executors, or some or one of them, or some person or persons by their, or some or one of their order, or for their, or some or one of their use, have or hath possessed, got in, and received the same, to a very large amount, and more than sufficient to pay and discharge all his funeral expenses, &c. and particularly to answer ai>d satisfy the demands of Plaintiff thereon, in respect of the matters aforesaid ; and no account hath as yet been rendered or taken of the said Testator G. B. the elder's residuary personal estate, a moiety whereof belongs to the Plaintiff, and a very considerable sum of money now remains due to the Plaintiff from the estate of the said G. B. the elder, in respect thereof, and so much thereof as hath been possessed or received by the said G. B. the younger, ought to be ascertained and paid out of the assets of the said G. B. the younger, possessed and received by his said executors as aforesaid, as also what is due from him in respect of the rents and profits as afore- said. That the residuary personal estate of the said G. B. the elder, yet re- maining unaccounted for on account, ought now to be taken, and of the application and disposition thereof, and that the clear residue thereof ought to be ascertained, and one moiety thereof set apart and appropri- ated for the use and benefit of the Plaintiff, under and by virtue of the said will of the said Testator G. B. the elder ; and that an account ought also to be taken of the rents and profits of the said real estates belonging to the Plaintiff, possessed or received by the said G. B. the younger, in his Ufe-time as aforesaid. That Plaintiff is also, as he is advised, entitled to have the suit and proceedings, which so became abated as aforesaid, revived, and to have the same benefit thereof against the said Defendants, the personal repre- sentatives of the said G. B. the younger, as Plaintiff could or might have had against the said G. B. the younger had he been living. And that Plaintiff is entitled to prosecute the decree made in the said cause, and that some proper person ought to be appointed by this honorable Court to be a receiver of the rents and profits of the aforesaid devised real estates, in the place and stead of the said G. B. the younger, de- ceased, with the usual and necessary directions in that behalf. AH which. &c. To the end, &c. 352 BILLS OF SUPPLKMENT AND RRVIVOK. Prayer. That the said suit and proceedings which so became abated as afore- said, may stand revived and be in tlie same plight and condition as the same were in at the time of tlie death of the said G, B. the younger, and that Flaintifl' may have the same benefit thereof against the said Defendants S. 11., &c. &r. as he could or might have had against the said G. B. the younger, had he been living. And that the said decree made on the hearing of the said cause, may be di- rected to bo prosecuted and carried into full efl'ect, and that some proper person may be appointed receiver of the rents and profits of the aforesaid devised real estates, with the necessary and usual directions in that behalf, in the place and stead of the said G. P.. the younger, deceased. And that an account may be decreed to be taken of the personal estate and effects of the said G. B. the elder, deceased, possessed or received by the several Defendants S. II.. &c. or any or either of them, or by the said G. B. the younger, deceased, in his life-time, or by any other person or persons by their, or any or either of their, or for their, or any or either of their use, on account, and of the application and disposition thereof. And that a proper person may be appointed receiver of the rents and profits of the leasehold estates of the said G. B. the cider, and to collect and get in his personal estate outstanding, with the usual and necessary directions in that behalf. And that an account maybe also taken of the funeral expenses, debts, and legacies of the said G. B. the elder, and that the same, if any remains unpaid, may be paid and discharged in a due course of administration, and that the clear residue or sur{)lus of the personal estate of the said Testator G. B. the elder may be ascertained, and that one full moiety thereof may be set apart and appropriated for the use and benefit of Plain- tiff, and may be ordered to be paid into Court, anil to be preserved and iniproved for his use and benefit during his minority. And that an account may be decreed to be taken of what was received and appropriated, or set apart and laid out in the purchase of funds by ihe said G. B. the younger, either on account of, or from, or in respect of the Plaintift''s part or share of and iu the residuary per- sonal estate of the said Testator G. C. the elder, or on account of, or from the rents and profits of the Plaintifi^'s said real estates. And that an account may be taken of the rents and profits of the Plain- uii'i said estates possesssed or received by the said G. B. the younger in his life-time, or by any one by his order, or lor his use, and that the said .■vtocks or fundi so purchased with the Plaintifl's BILLS OF SUPPLEMENT AND REVIVOR. 353 money may be ordered to be transferred into the name of the Ac- coHntant-General of this Court, in trust for the Plaintiff. And that the said Defendants, the personal representatives of the said Tes- tator G, B. the younger, may be decreed to account for and pay, to or for the use of the Plaintiffs, what shall appear to have been coming due to him from the estate of the said G. B. the younger at the time of his decease, and that they may either admit assets of the said Testator G. B. the younger, come to their hands, sufficient to answer and satisfy such the aforesaid demands of the Plaintiff therein, or that they may be decreed to account for the personal estate and effects of the said G. B. the younger deceased, and for the application and disposition thereof in the usual manner. And that all proper and necessary directions may be given for effecting the several matters aforesaid. And for general relief. 46 354 br.tT. 11. CROSS BIl.!.. A CUOSS BILL is a bill l)rouglit \>y tlie Defendant against tlie Plaintiff in a f()iir.(>r bill depending, touching the matter of such bill, or the facts set forth in the Defend- ant's answer to the Plaintlll's oriirinal bill. t> A cross bill should state the original bill and proceed- ings thereon, and the rights of the party exliibitiug the bill, which arc necessary to be made the subject of cross litiga- tion, or the ground on which he resists the claim of the Plaintiff hi the original bill, if that is the object of the new bill. But a cross bill b( in^; generally considered as a de- fence, or as a proceeding to procure a comi)!ete determina- tion of a matter already in litigation in the court, the Plain- tiff is not, at least as against the Plaintiff in the oriiiinal bill, obliged to shew any ground of equity to support the juri^jdiction of the court. Han (son''s Chanff.rij, ol, 83. CROSS Bii.r.. 355 A Cross Bill where a Person is sued to account , exhibited bij the Defendant against the Complainants, to produce Papers, and discover who hath acted in an Executor- ship. Humbly, &:c. sliewetli, &c. your Orator, A. B. o)', &c. tlmt C. 1). late of. &c. was in liis lile-time sei.«cd and possessed of a very consider- ab'' ■ estate, both real and personal, and being so seised and possessed, did, about make his last will and testament in writing, and thereby devised and bequeathed unto three of his children, viz. P. D., .1. D., and T. D., several legacies and bequests, and also to his daughter E. D. the sum of, Scc. and did also by the said will appoint, that whereas he was possessed of several houses in, &c. by lease, which were burnt down in the dreadlul fire which happened, &c. Thai his executors tliereinafter named should rebuild the same, and the profits thereby afterwards arising to be equally divided, to and amongst his said three children, and the >urvivors of them, share and share alike; and did further direct, thai whereas he had £ in the East India Company's stock, that the same should not be taken out by his executors for years after his decease ; and in and by the said will he did desire, that his ex- ecutors should, &c. as by the said last will of the said C. D. had your Orator the same to produce, more fully would appear. And afterwards, about, &c. the said C. D. d'ed, possessed of a great personal estate, consisting in ready money, and monies out upon securities; and your Orator further sheweth unto your Lordship, that afterwards your Orator and the said E. F. and P. D. proved the said will, but your Orator never possessed himself of any of the personal estate of tlie said C. D.. other than the lease of the houses in, <5Lc. which he rebuilt, and received the rents, issues, and profits of the same, great part of which he expended in maintaining and educating the children of liie said Testator, and other part thereof in building and repairing the said houses, and other monies he paid to the said P. D., to be employed, &c. ; and your Orator did not any further act in the said executorship than as aforesaid. And your Orator further sheweth unto your Lordship, that the said P. D. at his father's death, being about years old, and of sufficient discretion to manage the said estate, your Orator, with the said other executor E. ¥. was content, and were both very willing that the said P. D. should be the principal acting executor of the said will, to the intent he nuc;lit be the better instructed in the management of the said estate, and make the best improvement thereof for the benefit of himself and iiis other bro- thers and sisters which so nearly concerned him ; and this they did the rather, for that they looked on the said P. D. to be very carofiil ^nd 356 CROSS BILL. trusty, and it might be as well an ease to them, as also a good employ- ment for the said P. D. who had little or no "other employment of his time ; and be.>ides, your Orator being very aged and infirm, was unable to meddle in the said executorship, nbr did he meddle therein otherwise than aforesaid, by means whereof the said P. D. did altogether act in the said executorship, by receiving and paying all sums of, money that any ways concerned or related to the said executorship, save only as to the said houses in, &;c. which by reason of tiie nearness thereof to your Orator's habitation, who then lived and still lives in one of them, he was willing to undertake the management of tluni as aforesaid. And your Orator further sheweth unto youi- Lordship, that according to the direc- tions of the said will, he did several times make up his accounts in writ- ing, and dc'Ii\cr them to his executors of the said will, all which accounts so delivered in by 3'our Orator as aforesaid, were true and just accounts of all the actings and dealings, and of all the receipts and payments about or in relation to the personal and other estate of the said C. D., as by the said accounts, had your Orator the same to produce, more fully would appear ; and which accounts arc in the hands of the said G. H. the surviving executor of the said will, the other two being since dead, or in the hands of some other trustee for him, and where he may have access to the same ; and your Orator can give no other account of those sums, or the same again, unless he had those accounts, or true copies thereof. And your Orator shcwclh that liie said P. D. about, &c. made his last will and testament in writing, and thereby did devise, &:c. and did also give and bequeath to, &c. and of the said will made your Orator, the said K. F., d'c. Sec. executors, and soon after died, possessed of a very considerable estate, both real and j)ersojial, as in and bv the said will, had your Orator the same to produce, more at large appeareth ; and after the said P. D.'s death, your Orator joined with the said E. F., Sec. &c. in the probate of the said will, in the Prerogative Court, but never intermeddled more with the said executorship, or with the estate of the said P. I)., but the same hath been wholly managed by the said V.. F., w'.io hath ever since the death of the said P. D. received and paid all sums, and done all other acts relating to the said P. D.'s estate, and likewise to the said C. I).'? estate whereby he hath gotten into his hands large sum«; of nirjney, and otlier goods and chattels of a great value. But now so it is, may it please your lordship, that the said E. V., 8ic. ScC. comltii)iug with, &c. by cunning insinuations made tlie said. Sec. believe, that great part of the estate of C. D. and P. D. is in the hands of your Orator, although they well know the contrary, and that upon a fair account the said estates will be much indebted to your Orator, besides several sums, not mentioned in such accounts, lent by your Orator unto the said P. I)., which your Orator hopes he may retain in his hands, or be reimbursed the same by the said E. F., who hath got all the estate of CROSS BILL. 357 the said P. D. in his hands ; they the said E. F. &c. &c. have either «:au-ed or procured the said, &c. to exhibit a bill in this honorable Court against your Orator, to call him tcraccount for his transactions in the said estate, thereby intending to charge your Orator with the wiiole estates of the said C. D. and P. D. though they well know, and so the truth is, that your Orator never intermeddled witli any part thereof, save only the said estate in, &c. ; and the better to color their pretences, have lii€ said Testator, P. C. the said manor of A. and lands and premises of W. ajTreed to be settled in and by thesnid marriage articles, as therein and hereinbefore is mentioned, and which were di.^rharged by the said decree from payment of the said Testator's debts as aforeiaid, did, by virtue of the said marriage articU^, immediately upon the death of the said P. C. your Oratrix's late husband, come to the said P. C. as eldest son and heir of the said marriage, and his heirs male; and that he be- came entitled to the rents and profits thereof from the death of his said fatlier to his own death, and upon his death the said estates came to the said W. C. the Testator's said second sons, and one of the Defendants hereinafter named, as tenant in tail, by virtue of the said articles ; and your Oratrix further sheweth, that the said W. W. was appointed receiver of the rents and profits of the said Testator's real estates, pursuant to the said decree; and as your Oratrix is informed, the said W. W., till the time of his death, and the said L. R. or one of them, not only received the rents and profits of the said Testator's real estate, subject to the payment of his debts, but also of the said settled estate, which belonged only to the said P. C. her son, and applied the same promise uously with the rents of the said other estate, in payment of the said Testator's debts and legacies, or for some olh<'r uses and pinp-yses for which the same were no ways applica!>k' : and your Oratrix further sheweth, that the said \V. W. some time before his death, duly made his last will and testament in Wiiting, and thereof appointed C. B. of .M. in the said county of X. gentleman, and R. II. of the same place, gentleman, exe- cutors, who have proved the same, and possessed themselves of his per- sonal estate; and, ivince the decease of the said W. W. L. L. of , in the said county of , gentleman, hath been appointed receiver of the said Testator, P. C.'s said real estates; and your Oratrix further sheweth, that there was a creat arrear of rents and profits due to the said P, C. her son, at the time of his decease, for the said manor of , and the said lands and premises at , agreed to be settled as aforesaid, and then unreceived, and in the hands of the several tenants, who held and rented the same, amounting to the sum of , and up- wards, and that some part thereof, since the deceases of the jaid inte^tate, P. C. and the said \V. W. hath been received by the said C B. by vir- tue of or under pretence of some order or direction for that purpose, and BILLS TO CARRY DECREES INTO EXECUTION. 371 that the order, part thereof hath been received by the said L. L. the said receiver, and the said L. R. the said surviving trustee, or some or one of them, and whicli they, the said C. B. L. L. and L. R. pretend to have paid and applied towards the payment of his the said P. C, the Testator's mort.tragre, and other his debts, due and payable out of the other part of his said real estate, in the pleadings in the aforesaid cause mentioned, contrary to tlio said decree made upon the hearing thereof, as aforesaid ; and your Oratrix Airtlier shcweth, tliat soon after tiie death of the said P. C. her said son, letters of administration were granted to her out of the Prerogative Court of Y. and thereupon, and by virtue thereof, she became well enfitled to all and singular the rents and profits of the said manor of A. and lands and premises at W. received by the said W. W., the said late receiver, and the said L. R. which accrued due for the same estates, after the death of tlie said Testator, P. C. or which were received by them after making the said decree in the said intestate's life-time, ever and above his maintenance, and all tiie arrears thereof, which were in the hands of the tenants, and unre.:eiveJ, and due to the said P. C.yourOra- trix's said lale son, at the time of his death, and ought to have received the same, and ought to have had an account thereof, and the same ought to be distributed in moieties between your Oratrix and her said son W. as by t!;e ~ame letters of administration, in the custody or power of your Oratrix, and ready to he produced to this honorable Court, may appear. And your Oratrix humbly insists, that by virtue of the said letters of administration, your Oratrix stands in the place of the said P. C. her said son, deceased as to the said rents and profits received of his said estate, as aforesaid, in his life-time, and which were due to him, and in arrear, and received as aforesaid, since his death, and thereu[ion is entitled to have the aforesaid decree made upon the hearing of the said cause, re- vived and carried into execution, and to have the benefit of all the said proceedings, in such manner as this honorable Court shall direct. And your Oratrix further sheweth, that they the said W. C. her son, C. R. R. 11. L. L. and L. R. have enteied into a combination and confederacy how to defeat your Oratrix of the said moiety or half part of the said rents and profits of the said manor of A. and lands and premises at W. which were received by them the said \V. W. and L. R. in t!ie life-time of the said intestate, P. C. over and above his maintenance, and which were due, and in arrear to the said intestate, P. C. her said son, at the time of his death, and which have, since his death, been received by the said C. B. L. L. and L. R. or some of them, and to all which, and an account thereof, your Oratrix is well entitled as aforesaid ; and thereupon the said confederates, and especially the confederates C. B. R. H. L. L. and L. R. refuse to give your Oratrix any account thereof, or to pay her the same; and they, the said C. B. arid K. H. pretend that the said 372 BILLS TO CARIU DECKLES IMO EXECUTION. \\\ W. (lid nol leave assets sufTicient to answer and make good to your Oratrix uliat lie so received ; and tlie said W. C. pretends that he is en- titled to the wliole of the rents and profits oi" the said manor of A. and the lands and premises at W, which were received by the said W. W. and L. R. in the life-time of the said intestate, P. C. over and above his maintenance ; as also, to the rents and profits w hich were in arrear and due to the said intestate, P. C. at the lime of his death, for the same, or that the same ought to be applictl in discharge of the said P. C. his late father, the Testator's debts ; whereas your Oratrix doth expressly charge as above; and that the said W. C. was entitled to one moiety, or half part thereof only, and that your Oiatrixis well entitled, as aforesaid, to the other moiety, or half part thereof; and your Oratrix doth also insist, thai as the said manor of A. and the lands and premises at AV . agreed to be settled as aforesaid, were, by the said decree, discharged from the payment of the baid Testator, P. C.'s debts; that therefore the said rents and jMoiits thereof, which were due to the said intestate P. C. at the time of his death, and received as aforesaid, ought not to go and be applied towards the payment thereof, but ought to be equally divided, sh;ire and share alike, after just deductions and allowances made out of the same, between your Oratrix and him, the said W. C. her son. Prayer. In consideration whereof, and to the end that the said confederates, and every of them, may answer all and singular the premises herein- before added by way of supplement, as fully, particularly, and dis- tinctly, as if the same were here again repeated and interrogated, and more especially that the said C. B., R. H., L. L. and L. R. may set forth a true and just account of all and singular the rents and profits of the said manor of A., and lands and premises at W., which they the said W. W. and L. R. or either of them, or which any other persons by their, or cither of their order, or for their, or either of their use, did receive in the life-time of the said intestate P. C, and also a true and just account of the arrears thereof due to him the said intestate at the time of his death, and which since his death, have been received by the said C. B., L. L., and L. R. or any of them, or any other person or persons by their, or any of their order, for their, or any of their use or uses, separately and distinctly, in eaeh and every of the said years they so received the same, and how much they deducted, paid, or allowed out of the same in each and every of the said years, separately and distinctly, and for what, and upon what account, and how much the same amount to in the whole, after such deductions ; and how and in what manner, and to and for whose use and benefit they paid and applied the same, or otherwise lULLS TO CARRY DECREES INTO EXECUTION. 373 disposed thereof; and tliat the said C. B. and R. II. may either admit assets of the said Testator, sufficient to answer your Ora- trjx's demand upon the said W. W.'s estate or else that they may set out a true and perfect inventory and particular of all and i^inffular his goods, chattels, rights, and credits ; and Iiow the satnc hath ijeen paid, applied, or otherwise disposed of; and that the said confede- rates may set forth whether your Oratrix hath not, since the death of the said P. C. her said son, taken out letters of athiiitiislrrtion to all and singular his goods, chattels, rights, credits, and jv; rsonal estate whatsoever, and whether your Oratiix is not well eiititleil to liave a just account of the said rents and profits, and in her own right entitled to one full, undivided moiety or half part of all and singular the said rents and profits of the said manor of A. and the lands and premises at W. received by the said W. W. and L. R. dur- ing the life-time of the said intestate P. C. over and above his said maintenance, and all the arrears thereof which were due and in ar- rear to him, the said intestate P. C. at the time of his death ; and that they, the said C. B. R. H. L. L. and L. R. may set forth their reasons why they refuse to account with and pay to your Oiatrix the same ; and that they may be compelled forthwith to come to a just and fair account with your Oratrix, and to pay to your Oratrix what shall appear to be due to her upon such account ; and that the said decree may be revived and carried into execution; and that your Oratrix may have the benefit of all the aforesaid proceedings and decree, in such manner as this honorable Court shall direct. May it please your Lordship, &c. 374 SECT. V. — INFORMATIONS. AN information in every respect follows the form of a bill, except in the style ; but when it concerns only the rights of the crown, or of those whose rights the crown takes under its particular protection, as charities, they are exhibited in the name of the King's Attorney or Solicitor- General, as the informant, and in the latter case always, and in the former sometimes, a relator is named, who in reality sustains and directs the suit. The difference in form between an information and a bill, consists merely in offering the subject matter ; as the information of the officer in whose name it is exhibited, at the relation of the person who suggests the suit, in those cases where a relator is named, and in stating the acts of the Defendant to be injurious to the crown, or to those whose rights the crown thus endeavours to protect, when the pleading is, at the Same time, an information and bill, it is a compound of the forms used for each, when sepa- rately exhibited. It may happen that this person has an interest in the matter in dispute, and sustains the character of Plaintiff as well as of relator ; and in this case the pleading is styled an information and bill. An information concerning the rights of the queen, is exhibited also in the name of her attorney-general. The proceedings upon an information can oidy abate by the death or determination of interest of the Defendant. If there are several relators, the death of any of them, while there survives one, will not in aiyr INFORMATIONS. 375 degree effect the suit ; but if all the relators die, or if there is but one, and that relator dies, the court will not permit any farther proceeding till an order has been ob- tained for liberty to insert the name of a new relator, and such name is inserted accordingly ; otherwise there would be no person liable to pay the costs of the suit, in case the information should be deemed improper, or for any other reason should be dismissed. Mit. 91, and 1 Ves. 72. 3 Ves. 327.' ' 376 1NF0K.MAT1UJS5. Information bi/ the Aliorney General^ to icstruin Building. S'tafes, lliat there is situate, lying, and beiii^ witliii) the j^aiish of I', ill tlie county of JM., a certain street or road commonly called or known by the name of , which is bounded on the east by certain duellino-houses and the areas thereto belonging, and on the west side thereof by certain land or ground now belonging to the duke of C, from which the same was formerly separated by a brick wall, which hath within these (c\v weeks past been pulled down and demolished, and which street and public highway, at the south end th^elbf, terminated with a certain street and public highwaj^ called , and at the north end thereof terminated at, and communicates with a certain piece or parcel of land which hath lately been laid out as a street and public king's highua)', whicli is called , which street or road is called or known by the name of , now is, and hath for upwards of years last past been a common and public king's highway for all his majesty's subjects whatsoever, and the same hath been, from time to time, for upwards of last past, repaired at the expense of the in- habitants of the houses adjoining the said street and king's highway, and of the iiiliabitauts of the said parish of , by means of rales imposed, and by virtue of certain acts of parliament made and passed in the years of his present majesty's reign, or some or one of them. That all his majesty's subjects ought now and at all times hereafter to have the free use of the said street and public king's highway, for them- selves, their carriages and horses, free from ail let, interruption, and hindrance whatsoever. But that the said duke of B. hath lately entered into some contract with J. B. for the ground lying and being on the west side of the said street or public highway, and adjoining thereto, and said Del'endaul hath agreed with said Defendant duke of 13. to erect cer- tain houses on the said piece or parcel of ground fronting the said street or king's higJ.iway, on the west side thereof; and said Defendant J. B. threatens and intends shortly to take up part of the pavement in the said street or public king's highway, on the west side thereof, and to make and dig large holes therein, for the purpose of erecting vaults therein, upon, and under the said street or public king's highway, to be used with the said dwelling-houses, and to pave or cover the said street above such vaults, when erected, with broatl Hags oi- stones, such as are used for paving '/f |)assages for foot passengers only ; and that by the digging of uch liolcs, and building of such vaults, the said street and king's high- way nui5t necessarily and unavoidably be much obstructed and rendered much less convenient for his majesty's subjects, who will be deprived of >o much of the said street and king's highway as shall be so dug up, or as shall be used for the lying of earth and rubbish dug thereout, until said INFORMATIONS. 377 vaults shall be completed ; and that when the same are completed, said street and public king's highway will at all times after be liable to be ©bstructed by the falling in of such vaults, or when the same stand in need of repairs, that the digging and making of such vaults, and the continuance thereof, will be to tlie public damage and nuisance of all his majesty's subjects, and particularly of said relators and all other persons residing near the said street and public king's highway ; and that if said vaults are covered over with said flags or broad stones, as intended, so much of the said street or king's highway as is covered with such flags or broad stones will become unfit to be used for horses and carriages ; that his majesty's subjects, and particularly said relators, will not have the use and enjoyment of said street or king's highway in so beneficial a manner as they have hitherto been accustomed to have. That the lying of such flags or stones will also be to the puljlic injury and nuisance of all his majesty's subjects, particularly of such of them as aforesaid. That such intended acts of the said defendant J. B., if carried into ex- ecution, will be to the wrong and injury of all his majesty's subjects, and will be a public nuisance. The said relators, and divers others of his majesty's subjects, have frequently applied to said J. B. and requested him not to proceed to dig up the said street or public king's highway. Charges that said Defendants refuse to comply with such request, and threaten and intend to dig up the street and public king's highway in manner aforesaid, and to erect vaults under the same, and to pave or cover the street, or above the same, as hereinbefore mentioned. Pretends that said piece of ground called is not a public king's highway. Charge contrary., and that said piece of ground was upwards of years set apart for, and hath ever since been and still is used as a public king's highway, and hath, since the year of the reign of his present majesty been repaired at the public expense of said parish of B. in manner hereinbefore mentioned, and that the same therefore is and ought to be taken to be to all intents and pinposes a common and public king's highway. Pretend that the soil of said piece or parcel of ground belongs t6 said Defendant the duke of B., and that he hath a right to dig and make vaults under same, and pave and lay the surface of such street as he shall be advised. Charges contrary, and that if said Defendant duke of B. is owner of s-aid piece or parcel of ground, yet same being a public highway, neither he the Defendant, nor any person claiming by, from, or under \v.jm, hath any right to dig the soil thereof, so as to obstruct, hinder, or interrupt the said way; and that in order to make gaid vaults, Defendant .T. E, 49 373 IMUKMA110N&. intends to Jig liol<'> iVojn tl)c surface of said street or highway, whlcli may obstruct the same, or make tlie same less commodious or convenient for the passage of horses or carriages. Pretend that they have been (Uily authorized and empowered by the commissioners named and api)ointed by said acts of George third, or some or one of them, Ibr the pnrpxises therein mentioned, or a suffi- cient number thereof, to make such vaults, and to pave such part of said street as they intend to pave with such flags or broad stones as aforesaid. Charges and insists, that in case said commissioners have made any order by which they have pretended to give authority to said Defendants, or either of them so to do, yet said commissioners had no power or autliority to authorize said Defendants so to do, and especially to make vaults under said street, or to dig holes from the surface of said street, to enable them so to do. Prmjcr. Therefore that said Defendants, their servants and workmen, may be restrained by an injunction of this honorable Court from proceed- ing to dig up any part of the said public street called , and that if they have already ting- up any part thereof, that they may be decreed to replace the same in the same state and condition as it was in before they dug up the same. And for further relief. [nfonnation against opening: a Fool-wfnj far a Carriage Road Informing, sheweth unto your Lordship, sir E. L. knight, his majesty's attorney-general, at the relation of A. B. &rc. &c. that there is situate, lying, and being, within the parish of St. J. in the city of W. a certain jjublic street, called V. lane, learling iVom a certain other public street, called B. street, to a certain other public street, called G. street, and communicating on the north side thereof with certain other public streets called C. street, old B. street and S. row. And his majesty's attorney- jrcneral, l>y the relation aforesaid, further sheweth, &c. that at the east end of the said street, called V. lane, there is a certain other public street, called S. street, leading from thence into a certain other public street, called 1*. and that along the south side oi said street, called V. lane, from S. street to B. street, there is, and for many years past hath been a common and public foot-path, which hath been from lime to time paved with tlag-btones, at the expense of the inhabitants of the said parish of St. J. for the convenience of persons passing and repassing on foot, the INFORMATIONS. O iV said street culled V. lane, being a great puhlic thoroughfare for foot pas- sengers from I), street to S. street, aUhougii there is not, nor ever hath been any thoroughfare for carriages along the said street from B. street to S. street, by reason of certain wooden posts, are, and ever since the mak- ing of the said street called V. lane^ have been placed across the said street, a few feet to the eastward of S. row. And his, &:c. that the said common and public footway from B. street to S. street, is, and ever since the making of the same, hath been bounded on tlie south, for the most part, by a certain ancient brick wall, whicii forms the north fence and boundary of certain lands called IM. gardens and B. gardens, and that there is not, nor ever hath been any public way or opening on the north side of the said footway, so that his majesty's subjects in passing and re- passing on the same footway, have at all times had the free and uninter- rupted use thereof without any hurt, hindrance, or obstruction whatsoever. And his, &c. that upward of years since the then owners of tlie said lands, called M. gardens and B. gardens severally claimed a riglit to open a public street or way from P. through their said respective lands into the said street called V. lane, and threatened to make a public street or streets accordingly, but such claim being resisted on the part of the proprietors and inhabitants of the said several streets, called V. lane,. C. street, old B. street, and S. row, by reason of the disturbance and injury that would thereby be occasioned to the said several streets, the said owners to the said lands thought fit to abandon such claim. And afterwards, by an act of parliament made and passed in the 12th year of the reign of his present majesty, intituled " An act, &c." It was provided, &c. which provision was inserted in the said act of parlia- ment for the purpose of protecting the said streets, called V. lane, S. row, C. street, and old B. street, from any thoroughfare for carriages from P. to the said street called V. lane, by the way of S. street, or by any other means than by the way of B. street. And his, &c. that his royai highness the duke of Y. proprietor of the said lands called M. gardens,, and the Defendant hereinafter named, hath formed a plan for making, and is about to make a public street or way for horses, carts, and carriages, from P. through the said lands, called M. gardens into the said streit, called V. lane, over the aforesaid common and public footway on the south side of the said street ; and in and towards the execution of sucli plan, hath actually made an opening in the said ancient boinidary-wali> and hath taken up a part of the flag pavement of ilie said foot-way. And his, &c. that such public street or way so intended to be made by the said Defendant his royal highness the duke of Y. if carried into execution, will greatly interrupt and obstruct the said common and public footway on the south side of the said street, called V. lane, and will be to the great damage and common nuisance of all his majesty's sul)jects passing and repassing by the said footway. And his, frc that such intended street. 380 liNFORxMATIOiNS. if carried into Execution, will be opposite to the end of S. row, and west- ward of the said wooden posts, so as aforesaid placed across tlie said street, called \. lane, and by making a direct thoroughfare for horses, carts, and carriages from P. into the said street called V. lane, will actu- ally defeat the provision made as aforesaid in the said act of parliament, for the protection of the said streets, called \. lane, S. row, C. street, and old B. street, from any thoroughfare for carriages from P. other than by the way of B. street, and will therefore be contrary to the true intent and moaning and spirit of the said act of pailiament. Inqiiii-iJ. To the end therefore, that his royal highness the duke of Y. may, upon his honor, and according to the best of his knowledge, remembrance, in/brmation, and belief, full, true, and perfect answer make to all and singular the matters aforesaid, as fully and particularly as if the same were here again repeated, and he hereunto distinctly interrogated, &c. Praijer. And that the said Defendant may answer the premises. And that the said Defendant, his agents, servants and workmen, may be restrained by the order and injunction of this honorable Court, from proceed- ing to make and open any public street or way from the said lands, called M. gardens into the said street, called V. lane, over the said common and public footway. And that the Defendant may be directed to replace the flag-stones of the said footway so as aforesaid removed by him or by his order, and to put the same footway into the same state and condition as the same was in before his obstruc- tion tiicrcofj as aforesaid. And for further relief, &c. .7. L. 381 CHAPTER VI. THE VARIOUS DEFENCF.S TO A BILL IN CHANCERY. iig(99ti SECT. I. ANSWERS. AN answer must confess and avoid, or traverse and deny the material parts of the bill. If the Defendant deny a fact charged in the bill, he is to traverse or deny it (as the case requires) directly, and not by way of negative pregnant, as if he be charged with the receipt of a sum of money, he must deny or traverse, that he hath not received that sum or any part thereof, or else set forth what part he hath received and deny the rest. And if a fact be laid to be done with divers circumstances, he must not traverse or deny it literally, as laid in the bill ; but must answer the point of substance, positively and cer- tainly, {hord Clarendon'' s Orders, 18 Car. 2.) An answer to a matter charged as the Defendant's own fact, must regularly be, without sayings " to his remem- brance or belief," if laid to be done within six years before, unless the Court upon exceptions taken, shall find special cause to dispense with it, and as to the fact of another, which he does not certainly know, he ought to say, " he has heard and conceives, or believes it to be true," or " that he does not conceive or believe, &c.," and oujjht not to sav only, " that he has heard." 3^i ANSWER3. Where a particular combination is alleged in a bill, a particular answer must be given. A Defendant must answer positively, and not on belief, as to recent facts which are in his own knowledge ; but not as to the result and effect of a conversation (Harding v. Framp- sorij in the Exchequer. Defendant is not obliged to answer facts which are inter- rogated to, but which are not charged in the bill : but if he does answer to such facts, and the Plaintiff applies to his answer, they are properly put in issue though they were not charged in the bill. {Per Lord Hardwicke, 1 Ves. 538.) The general charge as to the fact of payment, enables the Plaintiff, to put all questions upon it that are material to make out whether it was paid ; and it is not necessary to load the bill by adding to the general charge that it was not paid, " that so it would aj)pcar if the Defendant would set forth when, where, Sec." (11 rc6'. 301.) In a suit for an account, an answer going no further than to enable the Plaintiff to go into the Master's office, is not sufficient ; he is entitled to the fullest information the De- fendant can give him by the answer, not by long schedules in an oppressive manner, but giving the best account they can, stating that it is so, referring to books, &c. so as to make them })art of the answer, and giving the fullest opportunity of inspection. (8 Ves. 193.) An administrator disputing by his answer the foundation estate, and submitting to be examined upon interrogatories, need not set forth an account of the personal estate, &c. by way of schedule. (4 Ves. 107.) ANSWERS. 383 If the discovery sought by the bill, is matter of scandal, or will subject the Defendant to any pain, penalty, or forfei- ture, or to any ecclesiastical penalty or punishment, he is not bound to make answer thereto ; and if he pleases, he may insist by answer, that he is not bound to make the discovery. ( Vide Wtj. Pract. Reg. 24, and the cases there cited.) Lord Eldon was of opinion, that an answer clearly evasive npon the face of it, and no reason assigned how it happens that he can put in no better answer, ought, by general order to be made by the Court, to be considered as a contempt of the court. (9 Ves. 463, et 179.) Impertinence is, where the pleadings are stuffed with long recitals, or with long digressions of matters of fact, which are altogether unnecessary, and totally immaterial to the point in question ; as where a long deed is stated, which is not prayed to be set forth in hcec verba. An answer ought not ordinarily to set forth deeds in hcEc verba; and though the bill prays they may be set forth, yet if the Defendant in his answer says, he is ready to let the Plaintiff have copies of them, or if he does not say so, but sets forth only that part to which the inquiry tends, it is sufficient ; and the court will order that the Plaintiff have liberty at his own charge to take copies of them with- out sending them to a master, or order the Defendant #0 j)roduce them on an examination of witnesses. An answer must contain nothing scandalous or imperti- nent ; but nothing relevant is deemed scandalous. (Mos. 45 mid 70.) Matter in an answer relevant, according to the case made by the bill, is not scandalous, whatever may be the nature ©f it. (11 Ves. 526.) 384 ANSWERS. Whatever part of a bill is not covered by a demurrer or plea, must be defended by answer, unless the Defendant disclaims , if the plea be over-ruled, the Defendant may insist upon the same matter by answer. (3 P. W. 9.3. 1 Atk, 450.) If fraud be charged in a bill, it must be denied by an- swer and not by way of plea. (1 Vern. 18.5.) An answer in misnaming the Plaintiff was considered as no answer ; the Defendant therel'ore was considered not bound by it, and a proper answer being put in, the former was ordered to be taken off the file by the description of a paper writing, purporting to be an answer. (1 1 Ves. 62.) As a further answer is considered as forming part of the first answer, so an answer to an amended bill is consi- dered as part of the answer to the original bill, as much as if it had been engrossed on the same parchment, and part of the same record ; therefore if a Defendant in further answer, or an answer to an amended bill, repeat any thing contained in a former answer, the repetition, unless it varies the defence in point of substance, will be considered as im- pertinent. (3 Atk. 303.) ANSWERS. 38"5 An Answer by Executors denying Assets, and staling that the Estate is indebted to the Executors. The answer of P. C , esq. one of the Defendants, to a bill of complaint of T. R. Complainant. This Defendant now and at all times hereafter, saving and reserving to himself all and all manner of benefit and advantage of exception to the raaiiifold errors, uncertainties, imperfections, and insufficiencies in the said Complainant's said bill of complaint contained, for answer theroynto, or unto so much, and such parts thereof, as he this Defendant is advised, is material for him this Defendant to make answer unto, he this De- fendant answering, saith, that he denies that A. M. in the said Complain- nnt's bill mentioned, was, at the time of making her will, possessed of a considerable personal estate ; but this Defendant admits that the said A. M. did, on or about tlie time in the said Complainant's bill for that purpose mentioned, duly make arid execute her last will and testament of such date, purport, and effect, as in the said Complainant's said bill of complaint, is for that purpose particularly mentioned, and that •he thereby gave to the said T. R. her brother an annuity or yearly rent- charge of £ a year, payable quarterly ; but the said Testatrix A. M. did not, in and by her said will give any directions out of what particular fund the said annuity of £ a year should be paid. And this Defen- dant admits that the said Testatrix by her said will, gave several other legacies, and thereby, after having devised to her daughter M. M. (now 31. P.) her executors, administrators, and assigns for ever, all the rest and residue of her estate, of what nature, kind, or quality soever, she the said Testatrix A. M. appointed him, tiiis Defendant, and M. his wife, together with J. R. and T, P. since deceased, joint executors of her said will. And this Defendant further answering, saith, that tlie said A. M. on or about the day of which was in the year of our Lord , departed this life wilhout revoking or altering her said will, and that soon after the said A. M>'s death, he this Defendant togetlier V'ith M. his late wife, J. R. and T. P. duly proved the said A. iM.'s will in the Prerogative Court of the archbi>hop of C. and took upon them- selves the burthen of the execution thereof ; but this Defendant absolutely denies that he ever possessed any part of the personal estate or effects of the said A. M. save and except a few houseliold goods of very trifling value, or that to his knowledge, information or belief, the said A. M. died possessed of personal estate or effects to any considerable value, or even sufficient to pay her debts and legacies ; but on the contrary, he this Defendant saith, that he this Defendant did, for the honor and credit of 60 386 ANSWIJKS. and in rrspocl to llie meiiioi y ol" ihe said A. IM. licccased, paid divoM sums of his own proper nionov, as well in discharging several debts of the said A. IM. as in the ])aymcnt of legacies given by her the said A. JNI. to her poor relations, and nUo towards the support and maintenance of the said Complainant T. K. who is a })erson in indigent circumstances, imprndently and totally incapable of making a proper use of his money j and for which reason, he this Defendant caused such sums of mon6y as he from time to time advanced to tlie said T. 11. to he paid and applied in necessaries for him. And this Defendant further answering saitij, tliat his late wife M. C, in the life-time of the said A. M., fruu) her knowledge of the said A. M."s being in bad circumstances and wanting money, did, for some time before her death, buy with his this Defendant's money, provision for the said A. IM. and her family, and that the said M. C. also paid the said A. iM.'s phvsician his fees during the said A. M.'s last sickness, likewise with this Defendant's money, and for which reason he this Defendant is well satisfied that the said A. J\l. died in very indifferent circumstances, and left little or no personal estate at her death. And this Defendant further answering sailh, that he hath heard and believes it to be true, tliat the said A. M. was in her life time possessed of some trifling real estate at W. in tiie parish of 15. in the county of N., of the value of about -£ a year to whicli slie was entitled for her life only ; and that upon her death the other Defendant M. 1*., as her only daughter and heir at law, became (TititJed thereto, an 402 ANsWLUb. brances ati'ecling liie said mortgaged premises. And ihese Defendants deny all and all manner of unlawful combination and confederacy. With- out tliatj Sec. Answer to Bill of Foreclosure. This D'efendant, &c. answereth and sailli, lie achiiils it 1u be trire, that this Defendant did, at or about the time in the saiu bill of complaint in that behalf nie;itioiTed, borrow the sum of jC fntm A. W. the elder, in the said [)ill of complaint named, and that thereupon such indenture of bargain ami sale, and such bond, as in the said bill of complaint are set forth, were duly made and executed by and between this Defendant and the said A. W., and were of such date, and to such purport and effect as in the said bill of complaint in that behalf stated; but for his greater certainty, nevertheless, as to the said indenture and bond, and the respective dates, |)urport, and effect thereof, this Defendant craves leave to refer thereto when produced. And, Ssc. admits it to be true, that the said A. W. the elder, departed this life before payment of the said prin- cipal money, or any part thereof. And this Defendant sailh it may be true, for any thing this Defendant kncnvs to the contrary, that t!ie said A. W. the elder, ieff A. W. tiie younger, in the said bill of complaint also named, his eldest son arnl heir at law, him surviving, and that he had first duly made and published his last will and testament, in writing, and thereby appointed the said Complainant T. VV. and the said A. W. the younger, and L. W., since decea^ii, executors thereof, and that the said executor.'? duly proved the said v/ill in the proper Ecclesiastical Court, and that the said will did not in any manner affect the said mortgaged premises, and that the legal estate and interest therein descended on and vested in the said A. W. the younger; and that such indenture, as in the said bill of com|ilaint is stated to bear date, Sjc. was duly made and exe- cuted by and between such parlies, and to sudi purpoit, as in the said bill of complaint set forth ; and that the said A. W. the younger departed this life at or about the time in the said bill of complaint in that behalf mentioned, leaving the said Complainant G. VV. an infant, his eldest son and heir at la\\', him surviving; and that he had fnst duly made and published his last will and testament, in writing, of such date as in the said bill of complaint mentioned, and thenby appointed the said Com- plainants T. W., &-C. executors thereof, and thai the said Complainants duly proved the said will in the proper Ecclesiastical Ctunt, and that the said will did not in any manner affect the said premises, and that the legal estate and interest therein descenrled upon and is now vested in the said Complainant G. W. j and that the said T. \V. departed this life soon aflec ANSWERS. 403 tlie dearth of the said last n>entior>ed Testator, ami that tlipreupon the said Complainant T. VV. became also the surviving executor of the said A. W. the elder ; but this Defendant, knowing nothing of the said several mat- ters aforesaid, save as he is informed by the said bill of complaint, and therefore craves leave to refer the said Complainants to such proof thereof as they shall be able to make. vVnd this Defendant admits, that the said principal sum of £ , or any part thereof, hath not yet been paid, and that the same no\r remaii-s due and owing from this Defendant on the security of the said mortgaged premises, together with an arrear of in- terest (hereon from, &c. ; but this Defendant denies that the said mort- gaged premises are a scanty security for the same, and on the contrary thereof this Defendant saith, that the said mortgaged premises are of the value of £ and upwards. And this Defendant saith, that there is no other charge or incumbrancje affecting the said mortgaged premises. And this Defendant trusts this honorable Court will allow him a reason- able time for the redemption of the said premises. And denies, &<:. Answer of the Attorney- General insisting on mi Kscheai. in case no Will rnade^ and no Heir, This Defendant, saving, &c. answereth and saith, that he is a stranger to all and singular tlie matters and things in the Complainant's said bill of complaint contained and submitteth the same to thje judgmtut of this honorable Court. But insists, on his Majesty's behalf, that in case it shall appear that sir D. D. late o/, Sis:, deceased, in the Complainant's bill named, died wilho-ut leaving any person or persons, a subject or subjects of Great Britain, his heir or heirs at law, and without having duly made and published his last will and testament, in the presence of credible wit- nesses, and with all the solemnities of law requisite to devise or affect a real estate, at the time of his beingof sound and disposing mind, memory, and understanding, that then, and in such case, his iMajesty is well entjtled by escheat to all and singular the freehold messuages, lands, tenements, and Hereditaments, of which the said sir D. D. died seised or entitled in fee- simple. And therefore, this Defendant prays that this Court will take care of such right and interest, if any, as shall appear tabe hi his Majesty. Without that, &c. Ansioer of the Attorney- General on behalf of a Charity. This Defendant &c. answereth and saith, that he is a stranger to alt and singular the matters and things in the said!)'!! of romplaint rontnin«'d. 404 ANSWERS. and leaves the same to such proofs as the Complainant can make thereof, and submits the same to the judgment, order and directions of this honor- able Court, and prays that this Court will take care of the charity in the bill mentioned, and jf^ive proper directions for the settling and establishing thereof. Witho.it that, &c. Ansiver of Heir at Law to a Bill to prove a Will. This Defendant, &c. believes it to be true, tliat W. H. B. in said bill, was, in his life-time, and at l!ie time of his death, seised or well entitled in fee-simple, of, and in such real estate and premises, as in said bill are mentioned to be devised by said will, and tiiat said W. H. B. being so seis-ed or entitled, did, at or about the time in bill mentioned, duly make and publish his last will and testament in writing, of such date, and in such words and figures, or to such purport and elfect, as in the said bill set forth, though, for certainty, &c. refers, &c. But whether said W. IL B. was of sound, d:c. at the time of making and publishing said will, or whether same was duly executed, &c. or whether he departed this life without revoking or altering same. Defendant knows not, nor can set forth, but leaves PlaintiiT to such proof thereof as he shall be advised or able to make respecting the same, as this Defendant doth not admit the validity of said will. Believes and admits Testator departed this life at or about the time in said bill mentioned, leaving Defendant, his nephew and heir at law, and that Plaintiff hath since duly proved said will in the proper Ec- clesiastical Court. R. -S. Part of Answer of Purchaser to Bill for sijccifir. Per- formance^ who resists on the Ground of a drfcctivr ^ Title. This Defendant, &c. saith, that the said abstract was, on the part of this Defendant, laid before an eminent conveyancer for his opinion as to the title of the said Plaintifis and the said Defendant E. IN!. II. to the said moiety of the said leasehold premises. And this Defendant was advised by such conveyancer, that it was doubtful from the will and codicils of the said Testator R. JNl. in the said bill of complaint stated, whether the said Testator meant that the said E. II. and S. A. by the bequest to them of the said leasehold premises in the third codicil contained, should take in any other character than as trustees. And that he could not ANSWERS. 405 tlnrcioic advise lliis Defcnclnnt to accept the title of the said premises without the concurrence of tlie persons who would have been entitled thereto under the will of the said Testator R. M. if that will had clearly remained in force, or under a decree of a Court of Equity. And this Dcfenrlant admits, that the said Complainants have been and are ready and willing to complete the said sale on their parts. And that the said Defendant, by reason of the said opinion of the said conveyancer, hath declined to perform the said agreement on his part, without the direction and indemnity of a Court of Equity, or the concurrence of the parties referred to in the said opinion. And this Defendant further saith, he believes that II. II. in the will of the said Testator R. M. named, departed this life some time since, leaving C. 11. another Defendant to liie said bill of complaint, him surviving. Denies combination, \i\ Ansiuer by the Heir at Law, admitting the Will. This Defendant, saving and reserving, 8^c. answereth and saith, she hath been informed, and believes, that I. S. late of, &c. departed this lite on or about, &:c. to the best of this Defendant's remeniljrance and belief of the time, without issue, leaving this Defendant his heir at law. And (his Defendant further saith she admits it to be true, that the said I. S. dil, in his life-time, make and publish his last will and testament in writing, of such or the like date, purport or efTect, as in the Complainant's bill is mentioned. And that such will was duly made, executed, and publislied in the presence of three credible witnesses, and that such wit- nesses did respectively subscribe their names as witnesses thereto in the said Testator's presence, in such manner as the law directs where lands and tenements are devised by will. And the said I. S. was of sound mindj memory and understanding, at the lime of his making and executing such will. And that he did not at any time afterwards revoke or alter such will, but this Defendant, for her greater certainty of the date and contents of such will, craves leave to refer thereto, when the same shall be produced, &c. And this Defendant denies all, and all manner of combination, &c. Answer to a Bill of Revivor, the Defendant being doubt- ful whether he can admit Assets. These Defendants, &c. And these Defendants further severally answering, say, they admit it to be true, that the said T. B. in his life- time, duly made and published his last will and testament in writing, 406 ANSWERS. anil a codicil tlicrcto, of such date respectively as in the said bill of revivor is mentioned in that behalf, and that lie by such codicil appointed Defendants his executors, and that since his death Defen- dants duly proved the said last-nnentioned will and codicil in the proper Ecclesiastical Court, and undertook the executorship thereof, and that they have possessed the said T. B.'s personal estate and ellecls so far as they have been conveniently able; and they believe (aUhough they do not admit the same) that such personal estate as last-mentioned is sufficient to answer whatsoever might be due from the said T. B. at the time of his death to the estate of the said Testator D. D. if any thing were so due, but which these Defendants do not admit that there is : they these De- fendants are unable to ascertain the amount thereof, and therefore are advised that they cannot with safety or propriety admit assets of the said Testator T. B. to be in their hands, suflkient to answer the same ; but they will nevertheless be willing, and hereby submit to be examined on in- terrogatories in regard to the said last-mentioned Testator's personal estate, possessed by them, or for their use, if the same should be neces- sary. And these Defendants, under the circumstances aforesaid, submit, that it is not necessary for them to set forth in this their answer any ac- count of the said Testator T. B.'s personal estate, possessed by them, or any of them, further than as aforesaid. And these Defendants further s.evcrally answer and say, they submit that the said suit and proceedings, which became abated on the death of the said T. B. may stand and be revived against tiiem as such executors as aforesaid, and be restored to the same plight and condition in which they were at the time of the death of the said T. B. Without that, ^'t. J. L. Ansioer jjiu in after Exceptions taken and allowed to former Ansioer. This Defendant, saving and reserving to himself, as in and by his former answer to the said Complainant's said bill of complaint was saved and re- served, for further answer thereto, or unto so much thereof as this Defen- dant is advised is material or necess^iry for him to- make answer unto, answereth and saith, he admits it to be true, that this Defendant hath, by the Defendants T. N. L. and O. R., and by other booksellers em- ployed by him, published and sold many copies of tiie edition of , published by this Defendant as in his former answer mentioned, and that the ninnber of such copies sold by him amounts in the whole to or thereabouts, as nearly as this Defendant can set forth the same to his knowledge or belief: but this Defendant denies that he is now pro- ANSWERS. 407 ceeding, or threatens to proceed in publishing and selling the said book, having discontinued the s»lc thereof, as in this Defendant's former answer mentioned. And this Defendant further answering saith, that the profit which he hath made by stich publication doth not exceed the sum of^ to the best of this Defemlant's knowledge and belief; and this Defendant admits, that he hath applied the produce and profits of the said publication to his own use. And this Defendant saith, that he printed and published copie.s of the said book or work, and no more, and that he hath sold copies, and that there now remains copies in his own custody or power, or in the custody or power of other persons by his order, or for his use, as nearly as he can set forth the said several particulars, as to his knowledge or belief. And this Defendant hath', in a schedule to this his further answer annexed or underwritten, and which he prays may be taken as part thereof, set forth to the best of his know- ledge, remembrance, information, and belief, a just and true account of all the sums of money which have arisen by the publication and sale of the said book, and of the profits which have arisen therefrom. J. L. Answer to Bill of Revivor, not admitting Assets. These Defendants, saving;, &c. say, they believe it to be true, that at yhibit their original bill against such parties Defendants, and thereby praying such relief and matters, or to such effect as in the said supplemental bill 53 410 ANsULll."?. in that belialf is nicnlii)'.)cd, and that the several DcJciidaiils thereto apppari\l. Bohevc. that all the Deleiidants to said original bill, except Defendant I. I>. iiave pnt in tlieir answers to said bill, but for their, &c. Kclicve, tiiat by or under sonic order ol" this Court, the sum of £ has l)een paid into Court in this cause. Admit it to be true, that, at or about the time in said supplemental bill, in that behalf mentioned, a commission of bankrupt, under the great seal of Great Critain. was awarded and issued against said Defendant I. B. and that he has been duly found and declared a bankrupt, and that Defendants have been duly chosen and appointed assignees of the said Defendant I. ]>. the bankrupt's estate and effects, ami that an assignment thereof has been duly made and executed to Defendants, by a legal num- ber of the commissioners named in, and acting under such commission, and therefore admit that Plaintifis are entitled to such relief against Defendants as representing said Defendant I. B. as they were entitled to, or might have had against said Defendant I. B. if he had not become a bankrupt, but whether or not, the Plaintiffs weie entitled to sucii relief against said Defendant I. B. as they have prayed, in and by their said original bill, or to any relief, either ag^ainst said Defendant 1. B. or against Defendants, touching the matters in said bill mentioned. Defendants say they do not know, nor can they set forth, for Defendants say they are strangers to the matters and transactions in said original bill menlioiK>d- save as the same af)j)ear from the bill, and therefore Defendants say they crave leave to refer to the answer which said Defendant 1. B. shall jiutin upon his oath to said bill. Say, that as such assignees as aforesaid, they claim all such interest in the matters in question in said original suit, as said Defendant I. B. was, or should be found to be entitled. Answer of an Assignee of a Bankrupt, to a Bill of Revivor and SKpplem.^nt. This Defendant, saving, &'c. saith, he admits it to be true, that the said original bill of complaint, and the said several bills of revivor and sup|jle- ment, were exhibited in this honorable Court, at or about the times, and between such parties, and to such tenor and effect respectively, as in the 5aid bill of revivor and supplement of the said T. M. is in that behalf set forth, and that such proceedings were thereupon respectively had, as in the said bill of revivor and supplement of the said T. M. are in that behalf stated. But for greater certainty, &c. refers, &c. Saith, that P. B. and T. Pi. who, together with this Defendant, at the time of the exhibiluig of the aforesaid bill of revivor and supplement of ANSWEPxS. 411 the said A. S. on and heir at law sur- 412 ANSWERS. viving.t And this Defendant saitli, that articles of agreement, bearing date, &c. were made aud entered into between this Defendant and his late wife, previous to their marriage, whereby, &-c. (being the power of appointment reserved to her.) And this Defendant further saith, that the said S. L. did, in pursuance of the power given, and reserved to her by the before-mentioned articles, duly make and publish her last will and testament in writing, bearing date, &c. and which was executed and attested in the presence of three witnesses, whereby, &c. {giving the estates to her husband) but for his greater certainty, &.c. And this De- fendant s'aitli, that the said S. L. departed this life without altering or revoking her said will. And this Defendant saith, that in case it shall appear that this Defendant, by virtue of such articles and will, is entitled to any interest in the estate in question in this cause, then this Defendant claims the same. Without that. Sec. The Answer of the Heir at Law to same Suit, which is precisely the same down to the Cross.f And this Defendant saith, he humbly insists, that upon the death of the said S. L. all her right and interest in the estate in question in this cause descended to, and became vested in this Defendant, as her heir at law, and that if the said S. L. made any such will, as in the said bill of revivor and supplement in that behalf alleged, that such her right and interest in the said estates was in no manner affected thereby. And submits the cause may be revived, &:c. (^in the usi/al ivnrcit;.) Without that, &c. A Part of Answer to Inquiry^ respecting Incumbrances^ ^•c. Schedule of Deeds. And this Defendant further answering, saith, he admits it to be true, that there are other charges and incumbrances affecting the said mort- gaged premises. And this Defendant saith, he hath, in a schedule to this his answer annexed, or underwritten, and which he prays may be taken as part thereof, set forth, according to the best of his knowledge, remembrance, information and belief, the particulars of all and every such mortgages or olher charges, and the dates thereof respectively, and the sum and sums of money thereby respectively secured, and the name and names of the grantees or mortgagees thereof, and also the name and names of the person and persons in whom the same are now respectively vested, or last were vested. And this Defendant hath also in the said schedule to this his answer annexed, set forth a full, true, and parti- cular list or schedule of all deeds and instruments whatsoever, relating to ANSWERS. 413 il)e said tnoftgaged premises which are now in the custody or power of this Defondant; and this Defendant is ready to produce and leave the same in the iiands o-f his clerk in court, for the usual purposes. Concluding Part of an Answer of next of Kin, to Bill of Revivor and Supplement, by eldest Brother. Admit it to be true, that before any further pi-ocecdings were had in the said cause, and at or about the time in the said bill of revivor and supplement mentioned, the said late Compjainant G. D. departed this life under the age of 21 years, intestate and without issue, leaving the said Complainant D. D. his brother of the whole blood, S. D. another Defendant in the said bill of revivor and supplement named, his only sister of the whole blood, and this Defendant P. C. his mother, and these Defendants A. B. and C. his brothers of the half-blood, his next of kin, him surviving. And this Defendant P. C. admits that she hath, since the death of the said G. D. her son, procured letters of administration of his personal estate and effects to be granted to her, by and out of the pro- per Ecclesiastical Court, and is thereby become the legal personal repre- sentative of the said G. D. as in and by, &c. And these Defendants C. C. and P. C. say, that the Defendants A. B. and C. are the only children of the said Defendants C. C. and P. C. his wife, and that they are all infants under the age of 21 years. And these Defendants C. C. and P. C. his wife, in right of the said P. C. and these other Defendants, severally claim to be entitled, as next of kin of the said intestate G. D, to their distribu- tive shares in the personal estate of the said intestate, and these Defen- dants submit to this honorable Court, whether the said Complainant is entitled to have the benefit of the said suit, so instituted by his said bro- ther, the said G. D. in tliis honorable. Court, and of the proceedings had under the same. Schedule of real Estates not particularly devised. Say, they have in the first schedule to this their answer annexed, and which they humbly pray may be taken as part thereof, set forth a full, true, and just rental and particular to the best of their respective know- ledge remembrance, information and belief, of all the real estates, as well freehold as copyhold, whereof or whereunto the said W. B. was s-eised or entitled at the time of the date of his will, and of his death, which are not particularly devised by his said will, and where every part thereof is situate, and the yearly value of such particular thereof, and in 414 ANSWERS. whose tenure or occupation tlie same and every part thereof now are or is, and from time to time, since the death of the said W. B. have and hatli been, and under what yearly or other rents or rent. Schedule of Rents received. Say, that they have, in their second schedule to this their answer annexed, and which they humbly pray may be taken as part thereof, set forth according to the best of their respective knowledge, &c. a full, true, and particular account of all and every sum and sums of money which have been received by these Defendants or either of them, or any other persons or person, by the order, or for the use of them, or either of them, for or in respect of the rents and profits of the real estates of the said W. B. and every part thereof which have become due since the death of the said Testator, and when, and by whom, and for whose use, and from whom, and for what rent or rents, and of what part of the said real estates, and when due, all and every such sum and, •=;ums of money have been respectively received. Schedule of Debts to be inserted in Answer. Says, that he has in the first schedule to this his answer annexed, set forth according to the best and utmost of his knowledge, remembrance, information and belief, a full, true, and particular account of all and singular the debts which were owing by the said T. or A. or either of them, as well at the time of making the said will, as at the decease of the said Testator, and interest due thereon, for such of the same debts carrying interest, calculated to, &:c. &c. Schedule of Personal Estate. And these last-named Defendants further severally answering, say, they have, in the first schedule to this, their answer annexed or underwritten, and which they pray may be taken as part thereof, set forth, according to the best and utmost of their several and respective knowledge, informa- tion and belief, an account of the personal estale and effects of the said Testator, at the time of his death, and also of the rents and profits of his real estate accrued since, distinguishing what part of the same hath come to the hands of these Defemlarils respectively, or of any other per- son or persons, to their, or either of their use, and for what sum of money the same and cverv part of such personal estate was sold. 415 SECT. II. DEMURRER. WHENEVER any ground of defence is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. (Mit. 99.) A demurrer is the allegation of the Defendant, which admitting the matters of fact, or some of them, alleged by the Plaintiff in his bill to be true, shews that as they are set forth by th.e Plaintiff himself, they are insufficient for him to proceed upon, or to oblige the Defendant to make answer unto, or that for some reason apparent on the face of the bill, or because of the omission of some matter which ought to be contained therein, or for want of some circum- stances which ought to be attendant thereon, the Defen- dant ought not to be compelled to answer. (Mit. 99.J And therefore it demands the judgment of the court, whether the Defendant shall be compelled to make answer to the Plaintiff's bill, or to some certain part thereof. The principal grounds of objection to the relief sought by an original bill which can appear on the bill itself, and may therefore be taken advantage of by demurrer are, first, that the subject of the suit is not witiiin the juris- diction of a coiirt of equity ; secondly, that some other court of equity has the proper jurisdiction ; thirdly, that the Plaintiff is not entitled to sue by reason of some per- sonal disability ; fourthly, that hq has no interest in the subject, or no title to institute a suit concerning it : fifthly, that he has no ri^ht to cull oh the DefendaiU concerning 416 DEMURRER. the subject of the suit ; sixthly, that the Defendant has not that interest in the subject which can make him liable to the claims of the Plaintiff; seventhly, that for some reason, founded on the substance of the case, the Plaintiff is not entitled to the relief he prays ; eighthly, the defi- ciency of the bill to answer the purpose of complete justice ; and, ninthly, the impropriety of confounding distinct sub- jects in the same suit, or of unnecessarily multiplying suits. (Harrison's Chan, 210.) The objections to a bill which are causes of demurrer to discovery only are, first, that the case made by the bill is not such in which a court of equity assumes a jurisdiction to compel a discovery ; secondly, that the Plaintiff has no interest in the subject, or no interest which entitles him to call on the Defendant for a discovery ; thirdly, that the Defendant has no interest in the subject to entitle the Plaintiff to institute a suit against him even for the purpose of discovery ; fourthly, that there is not that privity of title between them which gives the Plaintiff a right to the discovery required by his bill ; fifthly, that the discovery, if obtained, cannot be material ; sixthly, that t!:c situation of the Defendant renders it improper for a court of equity to compel a discover}'. (Mii. 149.) As a demurrer relies merely upon matter ap))arent on the face of the bill, so much of the bill as the demurrer extends to is taken for true ; thus, if a demurrer is to the whole bill, (that is, every thing necessary to support the Plaintiff's case which is well charged in the bill, 1 Ves. 426, 427.) The whole is taken for true ; if it is to any particular discovery, the matter sought to be discovered, and to which the demurrer extends, is taken to be as stated in the 1)ill, and if the Defendant demurs to relief only, the whole case, made by the bill to ground the relief prayed, DEMURRER. 417 is considered as true. A demurrer is therefore always pre- ceded by a protestation against the truth of tlic matters contained in the bill ; a practice borroAved from the com- mon law, and probably intended to avoid conclusion in another suit. (Mit. \13.) A demurrer must express the several causes of demurrer. (^Harrison's Chan. 2l\.) And in case the demurrer does not go to the whole bill, it must clearly express the parti- cular parts of the bill demurred to. (2 Ves. 451. Mit. 173.) A Defendant may demur as to part, plead as to other part, answer to the residue. An argumentative demurrer is bad. (2 Ve.'i. jun. 83.) Where there is an argument in the body of the demurrer, such as, " in or about the year 1770, ivhich is upwards of twenty years before the hill filed. ^"^ It is a speaking de- murrer, and bad. {Harrison'' s Chan. 212.) The ground of demurrer must be a short point, upon which it is clear the bill would be dismissed, with costs, at the hearing. (3 Ves. 253.) A Defendant cannot demur and plead, or demur and cinswer to the same part of the bill ; for the plea or answer €ver-rules the demurrer. (3 P. W. 80. 2 Atk. 282.) A Defendant may demur to any part of the bill, so as the demurrer be filed before the rule to answer be out, and before lie has obtained an order for time to answer ; but after such order obtained to put in his answer only, he cannot demur, unless he obtains an order for that pur- pose. 54 418 DEMUKREK. Where a demurrer leaves any part ot a bill uiitoucliccl, the whole may be amended, notwithstanding the allowance of the demurrer. But after the demun-er to the whole of a bill has been argued and allowed, the bill is out of court, and therefore cannot be regularly amended. To avoid this consequence, the court has sometimes, instead of deciding upon the demurrer, given the Plaintiff liberty to amend his bill, paying the costs incurred by the Defendant ; and this has been frequently done in the case of a demurrer for want of parties. (2 Cha. Ca. 197. Mit. 174.) After a demurrer to the whole bill over-ruled, the De- fendant may put in a demurrer less extended ; but not with- out leave of the court. (Harrison''s Chan. 217.) DEMURRER. 419 A general Demurrer for want of Equity. The demurrer of D. D., and J. D., and S. K., three of the Defendants, to the bill of complaint of S. S. Complainant. These Defendants, by protestation, not confrs?;ing all or any of the matters and things in the said Complainant's bill contained, to be true in such manner and form as the same are therein set forth and alleged, do demur to the said bill, and for cause of demurrer shew, that the said Complainant has not by his said bill made such a case as entitles him, in a Court of Equity, to any discovery from these Defendants respectively, or any of them, or any relief against them, as to the matters contained isi the said bill, or any of such matters, and that any discovery which can be made by these Defendants, or an\- of them, touching the matters com- plained of in the said bill, or any of them, cannot be of any avail to the said Complainant for any of the purposes for which a discovery is sought against these Defendants by the said bill, nor entitle the said Complainant to any relief in this Court, touching any of the matters therein com- plained of. Wherefore, and for divers other good causes of demurrer appearing in the said bill, these Defendants do demur thereto, and they pray the judgment of this honorable Court, whether they shall be com- pelled to make any further and other answer to the said bill, and they humbly pray to be dismissed from hence with their reasonable costs in this behalf siistained. Demurrer for ivant of Parties. These Defendants, by protestation, &:c. do demur to the said bill, and for cause of demurrer shew, that it appears by the said Complainant's own shewing in the said bill, that J. S. therein named, is a necessary party to the said bill, as much as it is therein stated, that the said Testa- tor did, in his life-time, by certain conveyances made to the said J. S. in consideration of £ , convey to him by way of mortgage, certain estates in the said bill mentioned, for the purpose of paying the said Testator''s said debts and legacies; but yet the said Com|)lainant halh not made the said J. S. a party to the said bill. Wherefore as before, ilc. Demurrer, because the Discovery sought may subject the Dfendant to Pemillies which the Phiintiff has not ivaived. This Defendant, &:c. as to such part and so much of the said bill as seeks to have discovf-ry from this Defendant of anv timber, or young 420 DEMURRER, timber trees, in the said bill suggested to have been, since the death of sir J. T. hart, the Defendant's late father, deceased, in the said bill men- tioned, felled or cut down on the estate in the said bill mentioned, or any part thereof, by this Defendant, or by his directions, or seeks to have any discovery of all or any sum or sums of money for which the same or any part thereof were or was sold by this Defendant, doth demur, and fur cause of demun er sheweth, that by the known and settled rules of this honorable Court, no person ought to be compelled to set forth or discover any matter or thing which doth or may subject him to any pains, penalties, or forfeitures whatsoever ; and theiefore as the said discovery sought by the said PlaintilPs said !)ill, doth and may, by the known law of this kingdom, subject and make this Defendant liable to several pains, penalties, and forfeitures, and which the said Complainant hath not in and by his said bill waived, as is usual in cases of the like nature to do, this Defendant doth demur iti law to so much and such parts of the said bill, as prav the aforesaid discovery, and humbly demands the judgment of this honorable Court, whether he ought to be compelled to make any further or other answer than as aforesaid, to such parts of the said bill as he hath so demurred unto. The several Demurrer and Answer of B. C, Wife of T. C. a Lunatic, one of the Defendants^ to the Bill of Comjjlaint of S. E. Complainant. This Defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the Complainant's said bill mentioned to be true, in such manner and form as the same are therein set forth, as to the said bill or so much thereof as seeks to have the witnesses to the will of the said T. C. this Defendant's said husband, examined, and their testimony recorded in this lionorable Ccurl, in order to the perpetuating thereof, this Defendant doth demur, and for cause of demurrer sheweth, that the said T. C. at the time of the exhibiting of the said bill was, and still is living, and that the witnesses of the said will of the said T. C. ought not to be examined to prove the said will, nor ought their testi- mony to be recorded during the life of the said T. C, and for that the said Complainant hath not any right or title, by or under the said will, until the said 'l\ C.'s death. Wherefore, and for divers other errors and imperfections, good causes of demurrer appearing in the said bill, this Defendant doth demur to such parts of the said bill as aforesaid, and as to the residue of the said bill, this Defendant not waiving her said de- murrer, but relying thereon, and saving and reserving to herself all and DEMURRER. 421 all manner of benefit and advantage of exception, that can or may be had or taken to the many errors, uncertainties, and insufficiencies in such residue contained, doth answer and say, she hath heard and beUeves it to be true, that the said T. C. did several years ago, but when exactly this Defendant cannot set forth, become disordered in his mind, and hath ever since been, and still is, incapable of managing himself or his affairs ; and that the said Complainant did, on or about the day of , prefer a petition to the then Lord High Chancellor of Great Britain, that a ccnimission might issue to inquire of the lunacy of the said T. C, and that a commission issued accordingly, and such inquisition was taken therein as in the said bill is for that purpose mentioned and set forth, and that the said T. C. doth still continue, and is a lunatic : but this Defen- dant, for greater certainty, craves leave to refer to the records of the said commission and inquisition ; and this Defendant further saitli, she admits it to be true, that after the said T. C. was found a lunatic as aforesaid, the care and custody of his person was committed to this Defendant, and the care and management of his estate was committed to W. C. esq. in the said bill named, and that the said T, C. her husband is still living and this Defendant doth deny all manner of combination and confederacy in the said bill charged, and humbly prays to be hence dismissed, with her reasonable costs and charges, in this behalf sustained. Demurrer to a Bill of Interpleader, for want of ihe usual Affidavit, that Plaintiff does not collude with any of the Defendants. This Defendant, by protestation, not confessing or acknowledging all and every of the matters or things in the said Complainant's said bill alleged or contained, to be true, in such manner and form as the same are therein or thereby set forth or alleged, to the whole of the said bill doth demur, and for cause of demurrer sheweth, that although the said Complainant's said bill is on the face thereof, a bill of interpleader, and prays that this Defendant, and the other Defendants thereto, may inter- plead together concerning the matters therein mentioned, and may be restrained by injunction, from proceeding at law against the Complain- ant concerning such matters with any of the Defendants thereto, which affidavit ought, according to the rules of this honorable Court, as this Defendant is advised, to have been made, and annexed to the said.bilL Wherefore, 8rc 422 DEMURRER. Demurrer to a Bill relating to distinct Matters. This Defendant, by protestation not confessing any of the matters and things contained in the said bill, to be true, as therein alleged, saith, that he is advised by his counsel, that the Complainant's said bill is insuffi- cient and to which, by the rules of this honorable Court, this Defendant ought not to be compelled to make or give any answer, and for cause of demurrer thereunto, this Defendant sheweth that it appears by the said bill, that the same is exhibited against this Defendant and J. S. for seve- ral distinct matters and causes, in many whereof, as appears by the said bill, this Defendant is not, in any manner, interested or concerned, by reason of which distinct matters the said Complainant's said bill is drawn out to a considerable length, and this Defendant is compelled to take a copy of the whole thereof, and by joining this Defendant, and distinct matters together, which do not depend on each other in the said bill, the pleadings, orders, and proceedings will, in the progress of the said suit, be intricate and prolix, and this Defendant put to the unreasonable and unnecessary charges in taking copies of the same, although several parts thereof no ways relate to or concern him ; for which reason, and for divers other errors appealing in the said bill, this Defendant doth demur thereto, and he prays judgment of this honorable Court, whether he shall be compelled to make any further or other answer to the said bill, and he humbly prays to be dismissed from hence with his reasonable costs, on this behalf sustained. Note. — As the Defendants may combine together to defraud the Plaintiff of his rights, and such a combination is usually charged by a bill, it has been lielc!, that the demurrer must so far answer the bill as to dcnv combination. Mit. 1 47. Conclusion of an Answer, insisting that the Plaintiff is not entitled to Relief in Equity, and claiming the Benefit of that Defence, as if the Bill hud been demurred to. Anil this Defendant submits to this honorable Court, that all and every Uie matters in the said Complainant's bill mentioned and complained of, are matters which may be tried and determined at law, and with respect to which the said Complainant is not entitled to any relief from a Court of Equity, and this Defendant hopes he shall have the same benefit (ff this di-fence as if he had dcmin-red to the said Complainant's bill : and this Defendant denies, iVr. DEMURRER. 423 A Demurrer, where the Defendants are charged with Felo- ny, or compounding Felony. The demurrer of the Defendants, C. D. G. H. and E. his wife, to part, and their aiisuer (o other pnrt of tlie bill of com- plaint of A. B. Complainant. As to so much of the Complainant's bill as seeks to charge these De- fendants, or any of them, with the concealing or compounding the felony in the bill mentioned, or as seeketh to compel any of these Defendants to make any discovery touching the same, or any of the matters relating thereto, in the bill suggested or alleged, these Defendants by protesta- tion, not confessing or acknowledging any of the matters or things re- lating thereto, in the said bill comprised to be true, in such sort, manner, and form, as therein the same are alleged or set forth, these Defendants do demur, and for cause of demurrer shew, that they ought not to be compelled to discover or set forth any matters whereby they may impeach or accuse themselves of an oflence or crime for which they may suffer corporal punishment, or be grievously fined ; therefore, and for divers other good causes of demurrer in the Complainant's said bill of his own shewing appearing, these Defendants, as to so much of the Complain- ant's said bill as before is set forth, do demur, and do demand the judg- ment of this honorable Court, whether they, or any of them, ought, qr shall be compelled, to make any answer thereto, other, or otherwise than as aforesaid, and humbly pray to be hence dismissed with their costs ; and these Defendants, by way of answer, do deny, &c. « A Deinurrer, for want of Parties, and for icant of an Affi- davit, to a Bill brought for a Discovery of a Deed. The demurrer of A. B. and J. his wife. Defendants, to the bill of complaint of C. D. Complainant. The said Defendants, by protestation, not confessing or acknowledg- ing all or any the matters and things in the Complainant's bill of com- plaint alleged and set forth to be true, in such manner and form as the same is, and are thereby set forth, say, that they are advised that the sub- stance of the said bill is to discover a deed suggested to be made by in the said bill named, whereby per annum, or some such provision was made for the benefit and advantage of his younger sons, and payable out of his lands, and that the Plaintiff is the survivor, and entitled to the said provision ; and that the said landwcr thereto, and do also humbly pray to be hence dismissed, d'c. A Demurrer for that the Plaintiffs have not entitled themselves to prosecute. The said Defendants, by protestation, not confessing or acknowlcdg' ing all or any of the matters or things in the Complainants' bill of com- plaint contained, to be true, in such manner, sort and form, as the same are therein and tiureby Set forth and alleged, do demur thereunto, and f(«r cause of demurrer shew, that the scope and end of the Complainants' bill is to be relieved touching several sums of money by the said bill sup- posed to be due from these Defendants to one deceased, in the said bil! named, which the Complainants would, or seek by their said bill to claim, as executors to the said , and yet have not alleged DEMURRER. 425 in or by their said bill, that they have proved the will of the said (if any such was made,) or otherwise taken upon them the burden or exe- cution thereof, or any ways entitled themselves unto her personal estate? and to sue for the same : Wherefore, and forasmuch as ihe said Com- plainants have not well and suflkiently entitled tliemselves, in and by their said bill, to the said money (if any had been due from these De- fendants, or either of them, to the said ,) as is tliereby supposed ; and for that, should these Defendants pay the money demanded by the said bill to the Complainants, before they have either proved the will, or sued out administration, fhey cannot sufliciently as these Defendants are advised, and insist, discharge these Defendants, nor give these Defendants any proper receipt or receipts for the same, but that they shall or may be liable to be questioned again by such person as may sue out administra- tion to the said , with the said will annexed, or otherwise ; and for which and divers other causes, these Defendants do demur in law unto the Complainants' said bill of Complaint, and all the matters and things therein contained ; and humbly demand the judgment of this honorable Court, whether they, or either of them, shall be compelled to make any other or further answer thereunto ; and pray to be hence dismissed, with their costs, &c. A Demurrer, Pica and An»wer, to a Bill seeking Relief against a Will, whereby a personal Estate is (Revised, being proved in the Ecclesiastical Court, and the IVdl pleaded in Bar, and for want of Equity. The joint and several demurrer of S. X. and E. his wife, to part, and the plea of the said S. N. to i)art ; and the joint and several answers of the said S. N. and E. his wile to other part of the bill of complaint of M. B. Vv". T. and J. SI. and S. his wife, Complainants. These Defendants S. N., and F.. his wife, by protestation, not con- fessing or acknowledging all or any of the matters and things in the said bill of complaint to be true, in such sort and manner as llie same are therein expressed and contained, as to so much of the said bill as seeks to set aside or impeach, or have any relief against the will of P.. R. in the bill named, as to the personal estate of the said R. R. or that seeks a discovery from these Defendants, or either of them, in relation to the said will, or that prays an injunction against this Defendant, \. N. to stop his proceeding at law against the said W. T. these Defendants do demur thereunto, and for cause of demurrer shew, that it appears, by the Complainants' own shewing, that this Defendant, S. N. hath proved the Said will of the said R. R. in the Prerogative Court of the archbishop ef 4-2*0 DEMURRER. C. ; and iliose Defendants are advised, that the probate of wills relating to estates, and particularly relating to personal estates, do properly be- long to the Ecch'siastical Courts of this realm, and that the same ought not to be called into question in this honorable Court ; and for further cause of demurrer these Defendants shew, that there is not, as they are advised, any matter or thing set forth in and by the said bill, as a foun- dation of equity for this Court to interpose, in relation to the action at law commenced by this Defendant S. N. against the said W. T. but wliat is properly cognizable at law, and that the said Complainant may have the same or equal benefit upon a trial at l;w, if the same is true ; for which reason, and for divers other causes, t'lese Defendants do demiir to so much of the said bill as aforesaid, and humbly pray the judgment of this honorable Court, whether they shall make any further or other answer thereto ; and as to so much of the said bill as seeks to have a distribution of the personal estate efiects or of the said R. R. according to the sta- tute of distribution of intestates" estates, or that seeks an account or dis- covery of or from this Defendant, S. N. of the personal estate of the said R. R, this Defendant, S. N. doth plead thereunto, and for plea this Defendant saith, that the said R. R. did in his life-time, on or about the day of , in the year of our lord , as this Defendant believes, duly make and publish his last will and testament in writing, and thereby, after giving several legacies therein particularly mentioned, gave and bequeathed all the rest and lesidue of his real and personal estat(> unto this D<;fcndant, to hold to him, his heiis and assigns, for ever, and of the said will made this Defendant sole executor; and this Defendant also after the death of the said Testator, proved the said will in the Prerogative Court of the archbishop of C. as by the [irobate there- of, under the seal of the said Court, now in the custody or power of this Defendant, ready to be produced, as this honorable- Court shall direct, and to which this Defendant craves leave to refer doih more fully and at large appear. All matters and things this Defeiklant doth aver, and is ready to prove, as this honorable Court shall direct, ami dotli plead the same in bar to so much of the said bill as for that purp()^e is hereii - !)efore mentioned, and humbly craves the judgment of this honorable Court, whether he shall make any further or other answer thereto : and as to so much of the said bill as these Defendants have not before re- spectively demurred or pleaded unto, these Defendants in no sort waiving the benefit of the said demurrer and plea, or either of them, but wholly rtlying and insisting thereon, these Defendants for answer to the re- sidue of the Complainants' said bill, or to so nmch thereof as these Defendants are arUised is material or necessary for them, or either of them to make answer unto, these Defendants each speaking for him and herself and not the one lor the other, they, these Defendants, do seve- rally answer and say as follows, <5jc. 427 SECT. III. PLEAS. WHEN an objection to a bill is not apparent on tlie bill itself, if the Defendant means to take advantage of it, he ought to shew to tlie court the matter which creates the ob- jection, either by answer or by plea. (Mil. 177.) . Pleas to original bills may be considered under the two heads, of pleas to relief, and pleas to discovery only ; and first, with respect to the former. Pleas have generally been considered as of three sorts ; to the jurisdiction of the court ; the persons of the Plaintiff or Defendant; and in bar of the suit. (Mlt. 17G.) Though the subject of a suit may be within the jurisdic- tion of a court of equity, yet if the court of Chancery is not the proper jurisdiction, the Defendant may plead the matter which deprives the court of jurisdiction, and shew to what court the jurisdiction belongs. (I Ves. 203.) ; and upon this ground may demand the judgment of the court, whether he shall be compelled to answer the bill. (Chan. Pract. 417, 420.) Pleas of this nature arise princi])ally where the suit is for land within a county-jjalatine. 2 Com. Dig. Chan. 56. Chan. Pract. 420. 1 Cha. Ca. 41. Nels. Rep. 37. QQ. Cary'^s Rep. 60.) or where the Defendant claims the privileges of an university {Canfs Rep. 65, QQ. 73. 2 Vent. 362..) or other particular jurisdiction. Mit. 182, 183. The court of Chancery being a superior court of general jurisdiction, nothing shall be intended to be out of its juris- 428 PLEAS. diction, whitli is not shewn to be so. (I Ves. 204.) It is requisite, therefore, in a plea to the Jdrisdiction of the court to allege, that the court has not jurisdiction of the subject, and to shew by what means it is deprived of jurisdiction. It is likewise necessary to shew what court has jurisdiction (1 Pail, 59. 1 Ves. 203, 204.) If the plea docs not pro- perly set forth these particulars, (see Ncls. Hep. 51.) it is bad in point of form. (1 Ves. 204, 2 Vent. 362. Mit. 183.) It a bill be brought for an account of the prafits of mines, and the Defendant pleads a special act of parliament which gives an exclusive jurisdiction of all matters arising within the mines of the courts of A., but does not aver there is a court of equity there, the plea will be over-ruled. 1 Vern. 58.) A person outlawed is disabled from suing in a court of justice, and if a bill is tiled in his name, the Defendant may plead the outlawry, the record of the outlawry, or the ca- pias thereupon must be pleaded sub pede sigilli, and is usually annexed to the plea. (7oth. 54. Pract. Reg. 276.) A plea of outlawry in a suit for the same duty or thing for which relief is sought by the bill, is insufficient according to the rule of law, and shall be disallowed of course, as put in for delay. Otherwise a plea of outlawry is always a good plea, so long as the outlawry remains in force. (Ord. Cha. 97.) ; but if that is reversed, the Plaintiff, upon pay- ment of costs, may sue out fresh process against the De- fendant, and compel him to answer the bill {Ord. Cha. 97.) Outlawry in a Plaintiff, executor or administrator, cannot be pleaded, for he sues in auter droit. (1 Vern. 184. Wy. Pract. Reg. 327.) It is equally insufficient, if alleged in disability of a person named in a bill as the next friend of an infant Plaintiff, (Wy. Pract. Reg. 327.) or in an infor- mation as a relator. (Mit. 186, sed vide Pre. Cha. 13. J PLEAS. 42'9 The Defendant may plead that the Plaintiff is excom- municated, which must be certified by the ordinary, cither by letters patent containing a positive affirmation that the Plaintiff stands excommunicated, and for what, or by letters testimonial, reciting " quod scruiatis register'ds invenitur, &c. ;" either of these certificates must be sub sigillo, and so pleaded, (f^y- Pract. Reg. 327.) Excommunication is a good plea to an executor or administrator, though they sue in auter droit, {Co. Lilt. 131. 4 Bac. Ahr. 3Q. Wy. Pract. Reg. 327.) but not to the next friend of an infant. Wi/. Pract. Reg. 327.) Tlie Plaintiff purchasing letters of absolution, may sue out fresh process, and compel the Defendant to answer the bill. (Mit. 187.) There is little to be found in the books u|X)n the sub- ject of a plea that the Plaintiff is an alien. (2 Atk. 399. 2 Viti. Abr. 274. Wy. Pract. Reg. 327. RastaVs Entries, 252.) x\n alien who is not an alien enemy, is under no dis- ability of suing for any personal demand ; (1 Aik. 51. vide Mit. 188.) but an alien enemy is not capable of suing. — [Anton V. Fisher, DougL 626. in note.) A plea that the Plaintiff is not the person he pretends to be, or does not sustain the character he assumes, and there- fore is not entitled to sue as such, though a negative plea, is good in abatement of the suit. (Wy. Pract. Reg. 326. J As where a Plaintiff entitled himself as administrator, and the Defendant pleaded that he was not administrator, (\ Vern. 472.J and where a Plaintiff entitled himself as ad- ministrator of an intestate, and the Defendant pleaded that the supposed intestate was living, and the plea was allowed. (Mit. 189.; But Lord Thurlow held, that the plea that the Plaintiff is not the heir, was a bad plea. (^2 Bro. C. C. 143.J 430 PLEAS. A plea that the Defendant is not the person he is alleged to be, or does not sustain the character he is alleged to bear, is mentioned as a plea which may be supported. (Mit. 129. J It seems to have been considered as more conve- nient for a Defendant under these circumstances, to put in an answer, alleging the mistake in the bill, and praying the judgment of the court, whether he should be compelled further to answer the bill. {Canfs Rep. 61. Wy. F/act. Reg. 327. Mit. 192.) Pleas in bar are, first, that the subject of the suit is not within the jurisdiction of a court of equity ; secondly, that the Plaintiff has no interest in the subject, or no right to institute a suit concerning it ; thirdly, that he has no right to call on the Defendant concerning it ; fourthly, that the Defendant has not that interest in the subject, which '"an make him liable to the demands of the Plaintiff; fifthly, tliat for some reason, founded on tlie substance of the case, the Plaintiff is not entitled to the relief he prays ; sixthly, the deficiency of the bill, to answer the purposes of com- plete justice,* may also be shewn by plea, which may be considered as in bar of the suit, though perhaps a tempo- rary bar only ; seventhly, the impropriety of unnecessarily multiplying the suits, may be th.e subject of plea which is also in bar of the suit. (Mtt. 178 and 179.) •It should seem, that a plea of the matter necessary to shew that the court has not jurisdiction of the subject, though perhaps unavoidably a negative pli3a would hold : thus, if the jurisdiction was attempted to be founded on the loss of an instrument, where, if the defect arising from this suppo: ed accident had not happened, the courts of ordi- nary jurisdiction could completely decide upon the subject, perhaps a plea, shewing the existence of the instrument, and that it was in the power of the Plaintiff to obtain a PLEAS. 451 production of it, oiiglit to be allowed, although instances of this sort of plea may not occur. (Mil. 181.) An instance of the second sort of pleas in bar is, where a Plaintiff claims as a purchaser of a real estate, and the De- fendant pleads that he was a Papist, and incapable of taking by purchase (See, however, 18 Geo. 3. c GO, by which this incapacity is removed, under certain circumstances); or if a Plaintiff claims property under a title accrued previous to conviction of himself, or of a person, un- der whom he claims, of some offence which occasioned a forfeiture (2 Atk. 399,) or previous to a bankruptcy ; or any other defect in the title ( Gilb. 288) of the Plain- tiff to the matter contained in the bill. A plea of con- viction of any offence which occasions forfeiture, as man- slaughter, must be pleaded with equal strictness as a plea of the same nature at common law (2 Al/c. 399.) But if a plea goes to shew that no title was ever vested in the Plain- tiff, though for that purpose it states an offence committed, conviction of the offence is not essential to the plea, and the same strictness is not required, as in case of forfeiture (^Mit. 190.) Pleas in bar of matters recorded, or as of record in the court itself, or some other court of equity, may be, first, a decree or order of the court, by which the rights of the par- ties are already determined (3 Alk. 626,) or another bill for the same cause dismissed. (1 Fern. 310.) Secondly, another suit depending in the court, or in any other court of equity between the same parties, ibr the same cause. (3 Atk. mi, 590. Mit. 194.) A decree, determining the rights of the parties, and signec^ and im-olled, may be i)leaded to a new bill for the same matter (3 Atk. 626.) Upon a plea of this nature, so much of the former bill and answer iiuist be set forth, as it is nc- 432 PLEAS. ccssary to slicw that the same point was then in issue (2 Atk. 603. 2 Ves. 377.) A decree or order, dismissing a former bill for the same matter, may be pleaded in bar to a new bill. (1 Vern.SXO. Bro. P. C. 281 ,) if the dismission was upon hearing, and was not in terms directed to be without prejudice. (1 Cha. Ca. 155.) But an order of dismission is a bar only, where the court determines that the Plaintiff had no title to the relief sought by his bill ; and therefore an order, dismissing a bill for want of prosecution, is not a bar to another bill. (1 Atk. 519. Mit. 196.) A decree must be signed and inrolled, or it cannot be pleaded in bar of a suit (3 Atk. 809.) ; though it may be insisted on by way of answer. (2 Ves. 577. Mit. 196.) Another suit, depending in the same or another court of equity for the same cause {Ord. in Cha. 98. 1 C%a. Ca. 241. 3 Atk. 587, 590.) is a good plea. It must aver, that the second suit is for the same matter as the first, and therefore a plea, which did not expressly aver this, though it stated the matter tending to shew it, was considered as bad. (^Mit. 198.) The plea was also to aver, that there have been proceedings in the suit, as appearance, or process requiring appearance, at the least. (1 E(/. Ca. Abr. 39.) It has been held that a po- sitive averment, that the former suit is depending is not ne- cessary. (1 Fern. 352, sed vide Hard. 160.) And if the Plaintiff sets down the plea to be argued, he admits the truth of the plea, that a former suit for the same matter is depending, the plea therefore must be allowed (1 Vern. 332.) unless it is defective in point of form. (7I//7. 198.) A plea of this kind is not put in on oath. (1 Vern. 332.) Pleas in bar, of matters of record, or of matters in the nature of matters of record, in some court, not being a court of equity, may be, first, a fnie ; secondly, a recovery ; PLEAS. 433 thirdly, a judgment at law, or sentence of some other court. (Mit. 201.) When a fine and non-claim are not set up as a bar to a claim of trust, by a person claiming under the same title, it is not sufficient to aver, that at the time the fine was le- vied, the seller of the estate being seised, or pretending to be seised, conveyed ; but it is necessary to aver that the seller was actually seised. (Mit. 203. 2 Ves. jun. 450.) It is not, indeed, requisite to aver, that the seller was seised in fee ; an averment that he was seised ut de lihero ienemento, and being so seised, a fine was levied, will be sufficient. (2 Atk. 630. Mit. 203.) Pleas in bar of matters in pais only, are principally, first, a stated account ; secondly, an award ; thirdly, a release ; fourthly, a will or conveyance ; fifthly, a plea of any statute which may be a bar to the Plaintiff's demand. (Mit. 207.) A plea of a stated account must shew that the account was in writing ; or at least it must set forth the balance (2 Atk. 309.) If the bill charges that the Plaintiff has no counterpart of the account, the account must be annexed by way of schedule to the answer, that if there be any errors upon the face of it, the Plaintiff may have an opportunity of pointing them out. (3 Atk. 303.) If fraud or error are charged, they must be denied by pica, as well as by answer (Gilb. on Cha. 57. Mit. 208) ; and if neither error or fraud is charged, the Defendant must, by the plea, aver that the stated account is just and true, to the best of his knowledge and belief. (3 Atk. 70.) The delivery up of vouchers at the time the account was stated, seems to be a proper averment in a plea of this nature, if the fact was such. (Gilh. on Cha. 57. Mit. 208.) 56 •ii34 FLEAd. An a\A arc! may be pleaded to a bill lo sot aside the award, and open the accounts. (2 Atk. 305, 501.) But if fraud or partiality are charged against the arbitrators, those charges must not only be derived by way of averment in the plea, but the plea must be supported by an answer, shewing the arbitrators to have been incorrupt and impartial. (3 Atk. 396, 501. Mit. 209.) But in a case (1 Anst. 59. 3 Anst. 735, et vide 6 Vcs. 594, 595, 596,) in the Exchequer, where the bill charged an award to have been obtained corruptly, and the plea pleaded the award, denying corruption, and all the particu- lar instances specially by averment, and also put in an an- swer to the same points as the special averments in the plea. Held that the answer over-ruled the plea. In a plea of a release, the Defendant must set out the con- sideration upon which the release was made. If a release was pleaded to a bill for an account, it must be under seal, other- wise it must be pleaded as a stated account. ( Gilb. on Cha. 57. M?. 211.) To a ])ill brought upon a ground of erpiity, by an heir against a devisee, to turn the devisee out of possession, or against a person claiming under a conveyance from the an- cestor, the Defendant may plead the will, and that it was duly executed, or the conveyance, in bar of the suit. (^Mit. 201.) To a bill for discovery and execution of a trust, the sta- tute for jircvention of frauds and peijurics, with an aver- ment that there was no declaration of trust in writing, has been pleaded. (2 Atk. 156.) To a bill for a specific per- formance of an agreement, the same statute, with an aver- PLEA 3. 43o ment that tliuic was no agreement in writing, signed by the parties, has also been pleaded (Rose Cha. 402, 533. 1 P. W. 770.) In these cases, if any matter is charged by the bill, which may avoid the bar created by the statute, that matter must be denied generally, by way of averment, in the plea ; and it must be denied particularly and precisely, by waj' of an answer to support the plea. (Mit. 212.) The statute for limitation of actions, 21 Jac. \. c, 16, is likewise a good plea. (3 P. W. 309. 2 Atk. 395. Gilb. on Cha. 61. 3 Bro. P. C. 305.) But if a bill charges a fraud, and that the fraud was not discovered till within six years before filing the bill, the statute is not a good plea, unless the Defendant denies the fraud, or avers that the fraud, if any, was not discovered within six years before the filing the bill. (3 P. W.)^2.) A plea of the statute of limitations not being suffi- ciently supported by the answer, as negativing the facts stated in the bill, to take the case out of the statute, was ordered to stand for an answer, with liberty to except, <6 Ves, 586.) Where the demand is of any thing executory, as a note for payment of an annuity, or by instalments the Defen- dant must aver that the cause of action, (2 Stra. 129,) has not accrued within six years ; because the statute bars only as to what was actually due six years before the action brought. (3 Atk. 7. Mil. 213.) Where the Defendant claims under a purchase or mort- gage for a valuable consideration w ithout notice of the Plain- tiff's title, he may plead it in bar of tlie suit. (2 Atk. 397. 630. 2 Ftnt. 361.) vSuch a plea must aver, that the person 436 PLEAS. who conveyed or mortgaged to the Defendant, was seised in fee, or pretended to be seised, (3 P. W. 281.) and was in possession, (1 Vern. 246.) if the conveyance purported an immediate transfer of possession at the time when he executed the purchase or mortgage deed. (3 P. W. 281. Mit. 215.) In a plea of title derived from one having a particular estate, and not in possession, it must be set out, how the person became entitled. (Ambl 421.) The plea must likewise aver a conveyance, and not articles merely. (3 P. W. 281.) It must aver the consider- ation and actual payment of it ; a consideration secured to be paid is not sufficient. (3 Atk. 304, 814.) The plea must also deny notice of the Plaintiff's title to a claim, (1 Vein. 179,) previous to the execution of the deeds, and payment of the consideration, (1 Cha. Ca. 34. 2 Atk. 631. 3 Atk. 304 ;) and the notice so denied, must be notice of the exist- ence of Plaintiff's title, and not merely notice of the exist- ence of a person who could claim under that title. (1 Atk. 522.) In pleading, there must be in general the same strict- ness in equity as at law, (2 Atk. 632 ;) at least in matter of substance, (Mit. 232.) A plea in bar must follow the bill, and not evade it, or mistake the subject of it. (Bunb. 70. 2 Aik. 603.) If a plea goes not to the whole bill, it must express to what part of the bill the Defendant pleads ; and therefore a plea to such parts of the bill as are not answered, must be over-ruled as too general, (3 Atk. 70. Mo6. 40.) So, if the parts of the bill to which the plea extends are not clearly and precisely expressed ; as if the plea is general, with an exception of matters after-men- PLEAS. 437 tioned, and is accompanied by an answer, the plea is bad. (2 yes. 108. Mit. 233.) A plea must aver facts to which the Plaintiff may reply^ and not in the nature of a demurrer, rest on facts in the bill. (3 Atk. 558.) The averments ought in general to be positive. In some cases, indeed, a Defendant has been permitted to aver according to the best of his knowledge and belief; as that an account is just and true, (3 Atk. 70. Toth 70 ;) and in all cases of negative averments, and of averments of facts not within the immediate knowledge of the Defendant, it may seem improper to require a positive assertion. (Mit. 236.) All facts necessary to render the plea a complete equi- table bar to the case made by the bill, so far as the plea extends, that the Plaintiff may take issue upon it. ( Gilb. on C/ia. 58.) must be clearly and distinctly averred. Aver- ments are likewise necessary to exclude intendments, which would otherwise be made against the pleader ; and the averments must be sufficient to support the plea, (2 Ves. 245. J\lit. 236.) If there is any charge in the bill, which is an equitable circumstance in favour of the Plaintiff's case, against the matter pleaded, as fraud, on notice of title, that charge must be denied by way of answer, as well as by averment in the plea. In this case the answer must be full and clear, or it will not be effectual to support the plea. (3 Atk. 304, 815. 3 P. W. 145. 3 Bro. P. C. 373, 374.) for the court will intend the matters so charged against the pleader, unless they are fully and clearly denied. (2 Atk. 241.) But if they are in substance fully and clearly denied, it will be sufficient to support the plea, though all the circumstances 438 PLEAS. charged in the bill may not be precisely answered. (3 Bro. P. a 373. Mit. 237.) With respect to such objections to a bill as arc grounds of plea to a discovery only, they may be, first, tiiat the Plaintiff's case is not such as entitles a court of equity to assume a jurisdiction to compel a discovery in his favour ; secondly, that the Plaintiff has no interest in the subject, or no interest which entitles him to call on the Defendant for a discovery ; thirdly, that the Defendant has no inte- rest in the subject to entitle the Plaintiff to institute a suit against him, even for the purpose of discovery only ; fourthly, that the situation of the Defendant renders it improper for a court of equity to compel a discovery. (Mii. 222.) A Defendant cannot demur and plead to the same part of the bill ; for the plea over-rules the demurrer. Plea to a discovery, that it may subject Defendant to the penalties of a statute ; and also of articles of impeach- ment exhibited against him, is inconsistent, one part of the plea over-ruling the other, and therefore bad. (2 Fes. jim. 84.) A plea is introduced by a protestation against the con- fession of the truth of any matter contained in the bill. If the plea is accompanied by an answer, merely to support it, the answer is staled to be made for that purpose, not waiving the plea. If the plea is to part of a bill only, and there is an answer to the rest, it is ex})ressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waiver of the plea. (Mit. 239.) PLEAS. 459 Pleas in bar of matters m pais, (Wy. Pracf. Reg. 325.) must be upon the oath of the Defendant ; but pleas to the jurisdiction of the court, or in disability of the per- son of the Plaintiff, ( Ord. in Clia. 96.) or pleas in bar of any matters of record, or of matters recorded, or as of record in the court itself, or any other court, need not be upon oath, {Wy. Pract. Reg. 324.) 440 PLEAS. Plea of the Statute of Frauds, and Answer to some Part of Bill ; with Notes pointing out where it is wrong. This Defendant, by protestation, to so much of said bill as seeks to com- pel this Defendant specifically to perform the agreement in the said bill mentioned, to have been made and entered into between the Com- plainant and this Defendant, for sale by this Defendant, unto the Com- plainant of a certain messuage or tenement in the bill mentioned, or as seeks to compel this Defendant to execute a conveyance of such messuage or tenement unto the Plaintiff, pursuant to any such agreement, or as seeks any other relief relating to such messuage or tenement, or as seeks any discovery from this Defendant, of or concerning any agreement made or entered into between the Complainant and this Defendant, for sale by this Defendant unto the said Complainant, of the said messuage or tene- ment, and not reduced into writing, and signed by this Defendant or some person by him this Defendant lawfully authorized, this Defendant doth plead in bar, and for pleasaith, that by an Act of Parliament, made in the twenty-ninth year of his Majesty King Charles the Second, in- tituled " An Act for Prevention of Fraud and Perjuries ;" it was, amongst other things, enacted, that from and after the day of , no action should be brought, whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interests in or concerning them, unless the agreement upon which such action should be brought or some memorandum or note thereof should be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized, as by the said act may ap- pear. And this Defendant further for plea saith, that neither he, this Defendant, nor any person by him lawfully authorized, did ever sign any contract or agreement in writing, for making or executing any sale or conveyance to the Complainant of the said messuage or tenement, or any part thereof, or any interest thereof, or to any such effect, or any memo- randum or note in writing, of any such agreement ; all which entries and things this Defeiulant doth aver to be true, and is ready to prove, as this honorable Court siiall award. And therefore lie doth plead the same in bar. to so mucii and such ])arts of the said bill as aforesaid, and humbly prays the judgment of this iionorable Court, whether he shall be com- pelled to make anv further or otlur answer to so much and such parts of the said bill as is herein and hereby pleaded unto as aforesaid. And this Defendant, not waiving his said plea, but wholly relying and insisting, and in aid and support thereof, for answer to tlie residue of the Complain- ant's bill, not hereiiilM-fore pleaded unio, or so much thereof as lie, this Defendant is advised, is in anywise material or necessary for him to make answer imto, he, answering and saith, that he, this Pefr ndant, was, in the month of , and now is seised, in fee-simple, of the PLEAS. 441 messuage or tenement in the bill mentioned, together with the household goods and stock upon the premises, and that the same then were, and now are, in his possession or occupation, in the manner therein set forth. And this Defendant also admits it to be true, that this Defendant was, in the said month of last, desirous to sell tire said messuacre or tene- ment, and the furniture and stock in and about the same, and that the Complainant being by trade a brewer and mahter, was then desirous of purchasing the same, and that a treaty was, in the said month of had between the Complainant and this Defendant, for the sale thereof, by this Defendant to the Complainant. And this Defendant further answering saith, that while the Complainant and this Defendant were treating or conversing together, as to this Defendant selling to the Com- plainant the said messuage or tenement, the Complainant asked this De- fendant's opinion whether S. W. who is named in the said bill, was not a iit person to take or become tenant of the said premises, and this De- fendant having answered, that he, this Defendant knew nothing to the contrary, the Complainant then desired that if this Defendant should see the said S. VV. this Defendant w^ould send him to the Complainant and the Complainant, at or about the same time, asked this Defendant at what yearly rent the said messuage or tenement was rated in the parish books ; and this Defendant having answered that the said messuage or tenement was in such books rated at the yearly rent of £ , the Com- plainant further asked this Defendant whether the same would bear rising, for that the same was well worth £ a year, or conversation to such or the like effect then passed between the Complainant and this Defendant to the best of this Defendant's remembrance and belief. . But this Defendant also saith, that this Defendant's declaring that the said messuage or tenement was worth £ a year, proceeded from his speak- ing in a hurry, or by surprise, and without consideration, the said mes- suage or tenement being really worth to be let much more than £ a year. And this Defendant further saith, that this Defendant, having seen the said S. W. shortly after the aforesaid conversation with the Complainant, he this Defendant, informed the said S. W. that the Com- plainant wanted to see him, the said S. W. for tlie purpose of treating with the said S. W. for letting unto the said S. W. the said messuage or tenement or to such or the like effect. And this Defendant hath been since informed and believes, that the said S. W. did very soon afterwards go to the Complainant, and that, after some short treaty was had between them for the Complainant's letting the said messuage or tenement to the said S. W. they, the said S, W. and Complainant executed a writing, bearing, date the day of last and signed by them, whereby it was declared, that in case he the said S. W. should on or before then next, purchase the said messuage or tenement tVom B. for which he 57 ■\.-%2 PLEAS. was then in Ueaty with him, that he would then give a lease thereof to the said T. W. at the rent of ^ per annum, although this Defen- dant, for greater certainty as to the date and material contents of such writing craves leave to refer thereto, now in this Defendant's custody or power, the same having been obtained from the said S. W. by a relation of this Defendant's, and by him delivered to this Defendant. But this Defendant saith, he doth not know^ or believe that the Complainant, in writing or otherwise, entered into any absolute agreement, or any other agreement than as aforesaid, for letting the said messuage or tenement unto the said S. W, And this Defendant also saitii, that, to tlie best of his this Defendant's remembrance and belief, he, this Defendant, did not, at any time further or otherwise, with the said S. W. for letting the said messuage or tenement unto him, or executing any lease thereof unto him, nor was further or otherwise than as aforesaid, privy to the execution or signing of the same agreement, dated the day of last, by the Complainant, or the said S. W. or either of them, or to the making of any agreement between them for the Complainant's letting the said mes- suage or tenement unto the said S. W. before or at the time of exe- cuting, signing, or making thereof, or imlil some time afterwards. And this Defendant is advised, and humbly apprehends, that according to the terms of the said writing, dated the day of last, the Complamant cannot be answerable to the said S. W., or liable to make any satisfaction to him for or on account of his not executing a lease of the said messuage or tenement to the said S. W , or not letting the same to him in case the Complainant should not be able to purchase the same from this Defendant. And this Defendant absolutely insists, that the said within agreement, dated the day of , is now void and of no eflfect, as the said Complainant was not become the purchaser of the said messuage or tenement by now last past. And this De- fendant further saith, he believes that the sum oi-£ in money, and an annuity of £ for the life of this Defendant, was not in t!ie said month of last, near a full and valuable consideration for the purcliase of the said treehold and iniieritance of the said messuage or tenements. And denies combination, &c. W. A. Observation. — The answer takes no notice of th(> charge that the Defendant delivered the deeds to the attorney for the purpose of ex- amining the title and preparing tlie conveyance; and tliat, therefore, in arguing the plea, that charge nuist be admitted to be true, tiiere was nothing in the instructions concerning that charge. The bill, and the facts stated in tiie answer were laid before A. and S. separately, they both advised the Plaintiff to picad tlie statute of iTauds. PLEAS. 44<3 The Lord Chancellor, Hilary term, over-ruled the plea in this cause, but ordered it to stand for an answer, witli liberty to except and saving to the Defendants the benefit of tlie statute. At the hearing he con- sidered the bill in the same light as if it had stated merely a parol agree- meiit for the said matters contained in the bill, tending to shew a special performance of the agreement, were so frivolous tliey might as well have been left out. Considering the bill in that point of view, he thought the t)lea a bad one ; because it went to the discovery of that which, if the court could be satisfied of the truth of it by any other means but by evidence they would decree performance of the agreement. He was, therefore, of opinion, that the plea should be supported by an answer denying the fact of the agreement, and seemed to. think, that where the Defendant pleads the statute of frauds, and by his answer admits the agreement, the answer over-rules the plea, and the court would decree execution. He also observed, that where a bill stated an agreement, without mentioning it to be in writing, a demurrer would be the proper mode of pleading, according to the general rules of and principles of demurrers, because it apiiears on the face of the bill, that the Plaintiff has not made out such a case as entitled him to relief; but he added, that the usual coiu'se was to plead the statute to such a bill, and that the practice had obtained by analogy to the courts of law, where if the declaration stated an agreement, without mentioning it to be in writing, it was always usual to plead the statute in bar to it. Plea of the Statute of Limitations. This Defendant, by protestation to all the discoveries and relief in and by the said bill sought from or prayed against this Defendant, other than and except such parts of the said bill as seek a discovery of or concerning the age of T. N. P., in the said bill named, or a discovery whether tiie said T. N. P., out of respect or affection for the said T. P. his father, did not forbear, or was not unwilling to take or use any compulsory measures for obtaining a settlement of the accounts of the matters in the said bill mentioned, this Defendant dofh plead in bar, and for plea saith, that by an act of parliament made and passed in the twenty-first year of king James I, intituled, " An Act for Limitations of Actions, and for avoiding Suits at Law," it was enacted, &c. [state act.) And this Defendant, for further plea, saith, that if the Complainant, either in her own right, or as administratrix of the said S. N. deceased, or as adminis- tralrix of the said personal estate of the said R. N. deceased, in the said bill named, or otherwise ever had any cause of action or suit against this Defendant, or against the said T. P. this Testator, for or concerning any of 444 PLEAS. the matters in the aforesaid bill of complaint mentioaefl, which this Defen- dant doth in no sort admit, such cause of action or suit did accrue or arise above six years before the filing of the Complainant's bill of complaint, and above six years before serving or suing out process against this De- fendant to appear to and answer the same bill ; and the said T. N. P. was not. at any time within upwards of six years before the filing of the Com- plainant's bill, or within upwards of six years before the serving or suing out process against this Defendant, to appear to and ansiver the said bill, nor hath the Complainant, at any time since the death of the said T. N. P., been under any of the disabilities mentioned and described in the said act of parliament. And this Defendant, for further plea, saith, that neither he. this Defendant, nor to his knowledge of belief the said T. P. de- ceased, this Defendant's Testator, did, at any time within six years, be- fore exhibiting the said bill, or serving or suing, out process against this Defendant, to appear to and answer the same, promise or agree to come to any account for, or to pay, or any ways satisfy the said Complainant, any smia or sums of money, for or by any reason or matters, transactions, or things, in the Complainant's said bill of complaint charged or alleged. All which matters and things this Defendant doth aver to be true, and is ready and willing to maintain and prove, as this honorable Court shall award ; and he doth plead the same in bar to the whole of the said bill, except such parts as aforesaid, and doth humbly demand the judgment of this honorable Court, whether he, this Defendant, ought to be com- pelled to make any further order, or answer to such parts of the said bill as he hath pleaded unto ; and this Defendant, not waiving or rehn- quishing, &c. he, this Defendant, ansv^ereth and saith, he believes the said T. N. P. attained his age of years in or about, &c. in the year, &c. ; and this Defendant doth not know or believe, that the said T. N. P., for any time whatsoever, forbore or was unwilling, out of respect or aftection for the said T. P. his father, to take or use any com- pulsory measures for obtaining any settlement of the accounts, in the bill mentioned. Without that, &c. Plea, Defendant not legal Representative. This Defendant, by protestation to all the discovery and relief sought and prayed by the Complainant's said bill, he, this Defendant, doth plead, and for plea he .«aith, that he, this Defendant, is not executor or administrator in the bill mentioned, or the legal representative of the said B., which said representative or representatives ought to be made party or parties to the Cftmplainant's said bill, as this Defendant is ad- vised. All which matters and things this Defendant avers to be true, PLEAS. 445 and pleads the same to the said bill, and humbly demands the judgment of this honorable Court, and humbly prays to be dismissed, with his reasonable costs, &c. Plea of the Statute of Fronds to a Parol Agreement, with a Statement of the Bill. The bill in tliis cause stated, that in B. agreed to sell a house called the inn, of which he was seised in fee to the Plain- tiff for £ in hand, and an annuity of £ for B.'s life ; that for se- curing the annuity, the Plaintiff agreed to give a bond, with one security, and also to demise the premises to a trustee for B., the indenture of demise to bear date subsequent to the conveyance from B. the Plaintiff. It waS also agreed, that the Plaintiff should take the stock and household furni- ture at a fair appraisement ; that Plaintiff and Defendant afterwards met in the presence of Plaintiff's attorney, when the agreement was again repeated and confirmed, and the attorney took notes of it at the time, and in the presence of the parties, that it was settled should be also prepared and executed before then next ; that it was also agreed the said attorney should prepare the deeds, agreeably to the said notes, and that B. should put tiie title-deeds into his hands to inspect on behalf of Plaintiff, and to enable him to prepare the conveyance , and that by the conveyance, and that by the said agreement, the said title-deeds were never to be returned to B., but after the said conveyances were executed, were, with the said conveyance, and the said deed of demise to B.'s trustees, to be lodged in the hands of such trustees for the benefit of both parties ; that the title-deeds were accordingly delivered to B. for the purpose; that the consideratioji for the said purchase was fully adequate; that Plaintiff and B., in pursuance of said agreement, fixed on a person to appraise the stock and furniture, and that Plaintiff, relying on the said agreement, had, with the privity, approbation, and consent of B., entered into articles of agreement with S. W. to give him a lease of the said house for years, as soon as the said purchase should be com- pleted, to commence from then next ; that the Plaintiff prepared the deeds, but before the appointment for the execution thereof, B. went to the attorney, and desired him not to proceed any further, and, at the same time, requested the Plaintiff to vacate the agreement, which Plain- tiff refused to do, and on the day of tendered the £ , and demanded possession ; that Defendant pretended the agreement was void, not being in writing, but Plaintiff insists, that it was in part per- formed in Plaintiff's delivering the deeds to the attorney for the purposes 446 PLEAS. aforesaid, and by Plaintiff's binding himself, with Defendant's concur- rence, to let the premises. Prayer for a specific performance. The plea of A. to the bill of complaint of B., Complainant. This Defendant, &;c. as to so much of the said bill as seeks to compel this Defendant, or any person or persons claiming under him, to execute a lease, in writing, of the several lands and tenements in the bill mentioned, or of any of them, or of any part thereof, pursuant to the pretended agreement in the bill mentioned, and as to any relief thereby prayed touching such lease and agreement, this Defendant doth plead in bar, and for plea saith, that by an act of parliament made in the twenty-ninth year of the reign of his late majesty king Charles II., intituled " An Act for the Prevention of Frauds and Perjuries," it is, amongst other things, enacted, that from and after the day of , no action shall be brought whereby to charge any person upon any contract of lands, tene- ments, hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memoran- dum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto lawfully authorized, as by the said act may appear. And this Defendant avers, that neither he, this Defendant, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing for making or ex- ecuting any lease to the Complainant of the same premises, or any of them, or of any part or parcel thereof, or to any such effect, as by the said bill is suggested, or any memorandum or note in writing of any agreement whatsoever, for or concerning the demising, or leasing, or making, or executing any lease of the said premises, or any of them, or any part or parcel thereof to the Complainant, and therefore this Defendant doth plead the said act of parliament, and matters aforesaid, in bar, to so much and such part of the said bill as seeks to compel this Defendant, or any person or persons claiming under him, to execute a lease to the Complainant of the several lands and tenements in the bill mentioned, or of any of them, or of any part or parcel thereof, pur- suant to the said pretended agreement; and as to any the relief thereby prayed touching such lease and agreement, and humbly prays the judg- ment of this honorable Court whether he shall be compelled to make any further or other answer, &c. PLEAS. 447 Plea of Bankruptcy. This Defendant, by protestation, not confessing or acknowledging all or any, &c. This Defendant doth plead, and for plea saith, she hath been informed and believes that the Complainant and J. B. the younger, his son, did, for some years before the month of , carry on the business of merchants, as co-partners together, at L., in the county of Y. And that they were, be- fore and on, &c. jointly indebted, on account of the partnership dealings, to many persons to a large amount in the whole, and particularly to H. W. in the sum of <£ ; and that the said Complainant, and the said J. B. the younger, were, before and on the, &c. severally indebted, on their respec- tive separate accounts, to many persons to a large amount in the whole ; and that the Complainant and the said J. B., or one of them, on their said partnership account, before the said, &c. committed one or more act or acts of bankruptcy, and that a commission of bankruptcy, under the great seal of Great Britain, on the said day of , was duly issued against them, under the names of J. B. the elder, and J. B. the younger on the petition of the said H. W., and that they were thereupon, by the, major part of the said commissioners named in the said commission, soon after duly found and declared to be bankrupts, as co-partners ; and that the said II. W., &c. &c. were duly chosen assignees of the estate and effects of the Complainant and his said son, under the said com- mission ; and that the usual assignment was made by the major part of the said conunissioners, named in the said commission, unto the said H. W., &:c. of the personal effects of the said Complainant and his said son, and each of them ; and that by indenture of B. and S., duly inrolled in this honorable Court in the year , the major part of the commis- sioners, named in the said commission of bankruptcy, also made the usual conveyance unto the said assignees of all the real estate of the said Complainant and his said son, and each of ihem ; and that the Com- plainant, shortly after the issuing of the said commission of bankruptcy, obtained the usual certificate from in number and value of the joint creditors of him and of his son also, and also of the separate cre- ditors of him, the said Complainant, who proved their debts under the said commission of bankruptcy, and also from the major part thereof, from the commissioners named in the said commission ; and that Plain- tiff had duly conformed himself to the several laws made and in force concerning bankrupts. And this Defendant hatli also been informed and be- lieves, tliat such ceilificate was duly confirmed by the right honorable the late Lord Chancellor. And this Defendant, for further plea, saith, she be- lieves that the said commission of bankruptcy hath never been superseded; 448 TLEAS. but that the same is now remaining in full force, and therefore as the right claimed by the said bill to the estates therein mentioned, and to the rents and profits, appears by the said bill to have accrued, and if the same is just and well founded did really accrue long before the date and is- suing forth of the said commission, this Defendant is advised, that the said Complainant's right and interest to and in the said estate, and the rents and profits thereof, was, at the time of the filing of the said bill, and is now, vested in the said assignees, under the said commission of bank- ruptcy, for the benefit of them and the other creditors of the said Com- plainant and his son, and of the Complainant alone. All which matters and things this Defendant doth aver to be true ; and she pleads thb sanar to the whole of the said bill, and humbly demands the judgment of this honorable Court whether she ought to be compelled to make any further or other answer thereto. Plea of Alien Enemy. This Defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said Complainant's said bill men- tioned, to be true, in such manner and form as the same are therein and thereby set forth and alleged, doth plead thereunto, and for plea saith, that the said Complainant is an alien born in foreign parts, that is to say, in the kingdom of Spain, out of the allegiance of our lord the now king, and under the allegiance of a foreign sovereign, that is to say, of the king of S., an enemy to our said lord the king, and that the said Complainant before and at the time of his exhibiting his said bill against this Defendant, was and still is an enemy of our lord the now king, and an inhabitant of C, under the government of the said king of S., and adhering to our said lord the king's enemies. All which matters and things this Defendant doth aver to be true, and pleads the same to the whole of the said bill, and humbly demands the judgment of this honor- able Court whether he ought to be compelled to make any answer to the said bill of complaint, and humbly prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained. J. L. PLEAS. . 449 A joint Plea of a valuable Consideration by Executors of Purchaser. In Chancery, The joint and several plea of J. G., W. S., J. B , and F. L., four of the Defendants, to the bill of complaint oi J. T. Complainant. These Defendants, by protestation, not confessing or acknowledging all or any of the matters and things in the said Complainant's said bill of complaint contained, to be true, in such manner and form as the same are therein and thereby alleged ; as to all the discovery and relief in and by the said bill sought from or prayed against these Defendants, these Defendants do plead thereto, and for plea say, that M. B., in the said Complainant's said bill of complaint named, was, at and prior to the dates and execution of the indentures hereinafter in part set forth, seised or entitled in fee-simple of and in certain messuages or tenements, and other premises, hereinafter particularly mentioned, of which premises the said M. B. being also in the quiet and uninterrupted possession and ''njoyment. [State the sale avd consideration paid as a plea in bar.) a8 450 SECT. IV. DISCLAIMEU. A DISCLAIMER is, where ii Dcroiidant upon oath, hy his answer denies he hath, or claims any right or title to the thing demanded by the Plaintiff's bill, and disclaims, ?. e. renounces all claim or pretence of title thereto. Where a Defendant disclaims generally to all the mat- ters in the bill, the Plaintiff has not to reply ; if he does, and serves the Defendant with a suhpcvna to rejoin, the Defendant may have costs against him for the vexation to be taxed. But if the disclaimer be only to part of the matter in question, but as to the other part, there is an answer, in such case there may be replication to that part that con- tains the answer. A Defendant may demur to one ])art of a bill, plead to another, answer to another, and disclaim to another ; but all these defences must clearly refer to separate and distinct parts of the bill. (1 P. W. 80.) A Defendant cannot by answer claim, what by dis- claimer he has declared he has no right to. {Mlt. 254.) If a disclaimer and answer are inconsistent, the matter will be taken most strongly against the Defendant upon the disclaimer. {Mit. 234.) A disclaimer being in point of ibrm an answer, the words of course preceding, and concliuiing the one, are pursued in regard to the form of the other. {Hind. 209.) DISCLAIMER. 451 The disclaimer of A. B. the Defendant, to the bill of com- plaiut of C. D., Complainant. Tins Defendant {here follow the words of course tvhich precede an answer,) saith, that he doth not know that he, this Defendant, to his knowledge or belief, ever had, nor did he claim, or pretend to have, nor doth he now claim, any right, title, or interest of, in, or to the estates and premises, situate, &c. in the said Complainant's bill set forth, or any part thereof, and this Defendant doth disclaim all right, title, and interest to the said estate and premises in, S^c. in the said Com- plainant's bill mentioned, and every part thereof. (Here follow the jvords of course ichich conclude an aiiswcr.) An Answer and Disclaimer. The several answer and disclaimer of A. V). one of the De- fendants, to the bill of complaint of , Complainant. This Defendant, saving and reserving to himself, now and all times hereafter all manner of advantage and benefit of exception that may be had and taken to the many untruths, uncertainties, insufficiencies, and imperfections, in the said Complainant's said bill of complaint con- tained for a full and perfect answer thereunto, or to such part thereof as it materially concerns this Defendant to make answer unto, he answereth and saith, that he believes that C. D. did die seised of such estates Ml and , as in the said Complainant's said bill are men- tioned. And this Defendant does believe, that the said C. D. did make such last will and testament in writing, and did thereby create such trusts out of the said estates, and ap[)ointed this Dcfendaiii trustee thereof, in such manner, and to such jiurport and effect as iu the said Complainant's said bill for that purpose set forth. And this Defendant does believe, that the said Testator made E. F., gent, execu- tor of his said will; and this Defendant does believe that the said C. D soon after making his said will, departed this life that is to say, on or about the day of , in the year, , without revoking or altering his said will, seised of such estates in and , as in the said Complainant's said bill are set forth. And this Defendant further saith, that he was advised, that the said trust would be attended with some difficulty, besides expense and loss of time, to this Defen- dant ; therefore this Defendant absolutely refused to intermeddle there- with, or any way concern himself therein. And this Defendant denies, that he, or any f'^r him, ever entered on tJ;e said trust estate, or ever 452 DISCLAIMER. received any of the rents and profits thereof; but this Defendant has been informed and believes the same were received by G. H., of the city of , in the said county of , g^"t-j who was employed by the said Testator C D., in his life-time, to receive the rents and profits of the said estate for the said C. I). And this Defendant doth believe, that the said G. H. hath received the said rents and profits of the said trust estate ever since the death of the said Testator C. D., and still doth continue to receive the same. And this Defendant positively denies, that the said G. 11. had any power, authority, or direction from this Defendant to receive all or any part of the rents and profits of the said trust-estate, or that he ever accounted to this De- fendant for the same; and this Defendant is very desirous and ready to be discharged from his said trust, and to do any act for that purpose as this honorable Court shall direct, this Defendant being indemnified in so doing, and having his costs. And this Defendant further saith, that as to so much of the said bill as seeks a discovery of this Defendant's title to the lands in , this Defendant, saith that he doth not know that he, this Defendant, to his knowledge or belief, ever had, nor did he claim or pretend to have, nor doth he now claim or pretend to have, any Hght, title, or interest of, in, or to the said estate in , in the said Complainant's bill set forth, or any part thereof; and this De- fendant doth disclaim all right, title, and interest to the estate in , in the Complainant's said bill mentioned, and every part thereof. And this Defendant doth deny all manner of unlawful combination and con- federacy unjustly charged against him in and by the said Complainant's said bill of complaint ; without that, that any other matter or thing, in the said Complainant's said bill of complaint contained, material or necessary for this Defendant to make answer unto, and not herein or hereby well and sufficiently answered unto, confessed or avoided, tra- versed or denied, is true. All which matters and things this Defendant is ready to aver, maintain, and prove, as this honorable Court shall award, and humbly prays to be hence dismissed, with his reasonable costs and charges, in this behalf most wrongfully sustained. 453 CHAPTER VII. Sect. I. OF [NTERLOCUTORY MATTERS. PETITIONS. AS the common books of practice contain a variety and numerous selection of petitions upon the most ordinary occasions, the following selection will exhibit such forms of petitions only which have never been before the public in print, without any regard to those petitions which merely pray for matters of course. A petition is the request of a person in writing, directed to the Lord High Chancellor, Vice Chancellor, or Master of the Rolls, shewing some matter or cause whereupon the petitioner prays some direction or order. Brevity and form are the two things chiefly to be ob- served in drawing them. Sometimes they are upon collateral matters, as they have relation to some former suit or cause depending, or to an officer of the court as to have a clerk or solicitor's bill taxed, or to oblige him to deliver up papers, &:c. 454 PEIITIONS. Petition for Sale of Mortgaged Premises, the Mortgagee be- ing a Bankrupt. In the matter of D. T., a bankrupt. To the Right Hon. the Lord High Chancellor of Great Britain. The humble petition of T. S., of M., gent. Sheweth, That the said D. T. did on or about the day of , by way of security of £ then lent and advanced to him by J. L., late of M., gent., surrender into the hands of the lord of the manor of T. All, &c. To the use and behoof of the said J. L., his heirs, and assigns ac- cording to the custom of the said manor. To hold, &c. That by an indenture bearing date the said day of , and made between the said D. T. of the one part, and the said J. L. of the other part. It was agreed, &:c. (^state such part of mortgage deed as nccessari/.) That on the same day of , the said D. T. made and executed his bond to the said J. L. in the penal sum of =£ , with a condition thereunder written for making void the same on payment of the said sum of c^f and interest, at a day therein mentioned, and long since past. That by a deed-poll, bearing date on the day of , the said J. L., amongst other property, assigned to your petitioner all mo- nies due to him the said J. L., upon mortgages, upon trust, for the bene- fit of his children, in manner therein mentioned, subject to an interest therein for his own life; and the said J. L. afterwards departed this life in the year That a commission of bankrupt, bearing date, &c. was awarded and issued against the said D. T., and he was thereupon duly found and de- clared a bankrupt, and the usual assignment of his estate and effects hath been made to, &c. That the whole of the said sum of £ , so lent and advanced by the said J. L. to the said I). T., now remains due and unpaid, together with an arrear of interest thereon from, &c. That, on or about, Sec. your petitioner caused a written notice, signed by your petitioner, and also by J. M. L., the eldest son and heir of the said J. L., and in whom the legal estate in the said co{)yhold premises is now vested, to be served on the major part of the commissioners in the said commission named, and also on R. W., the solicitor to the said com- mission, requesting the said commissioners to proceed to inquire whether, &c. PETITIONS. 455 That tlie said commissioners have not thought fit to take any step in consequence of such notice. Your petitioner therefore most humbly prays your Lordship, that the said mortgaged premises may be sold before the major part of the commissioners in the said commission named ; and that an account may be taken of what is due to your petitioner, as such assignee as aforesaid, for principal and interest on the said mortgage, and that the purchase monies of the said premises may be applied in satis- faction of what shall be found due to your petitioner upon such ac- count ; and if such purchase monies shall be insufficient for that purpose, then that your petitioner may be admitted as a creditor, under the said commission, for such deficiency, and may receive dividends thereon pari passu with the other creditors of the said bankrupt, or that your Lordship will be pleased to make such fur- ther or other order in the premises as your Lordship shall seem meet. And your petitioner shall ever pray, &c. Petition to call a Meeting of Commissioners for the Pur- pose of proving a Debt, recovered by Action, against the Bankrupt. Li the matter of M. N., a bankrupt. To the Right Hon. the Lord High Chancellor of Great Britain. The humble petition of O. N. N., G. T., N. M., R. J., and J. W., of, &c. bankers and co-partners. Sheweth, That the said M. N. a bankrupt, being, on the day of , indebted to your petitioners in the sum of c£ , as the drawer of bills of exchange, and the indorsee of one promissory note, all of which had been discounted by your petitioners for the said M. N. Your petitioners, on the said day of , sued out a bailable writ against the said M. N. for the said sum of^ , and caused the said M. N, to be arrested thereon, and the said M. N., not being able to find bail ia such action, was soon afterwards committed to the K. B. prison. That, on the day of , your petitioners caused another writ to be issued against the said M, N, for the sum of £ , being the amount of another bill of exchange, discounted by your petitioners for the said M. N., which had fallen due subsequent to the issuing of the former writ. That a commission of bankruptcy [in fJtc Tisntil 7?J0c/e.} 466 PETlTie.NS. That tlie said M. N. suffered judgment to go by default in both the said actions so commenced against him by your petitioners as aforesaid, and on the day of , your peticioners caused writs of inquiry to be executed in tlie said actions, and in the first of such actions your petitioners recovered, for damages and costs, the sum of ^ , which included not only the amount of bills and the promissory note afore- said, but also the further sum of ■£ for the cash balance due from the said M. N. to your petitioners ; and in the second of such actions your petitioners recovered for damages and costs the sum of ^ That, on the day of , your petitioners delivered to the said assignees a particular of their demands agpinst the estate of the said bankrupt which were therein stated by mistake at £ , but ought t€» have been stated at £ more ; and, on the day of , your petitioners delivered to the said assignees a particular of certain freehold and leasehold premises which had been mortgaged to your petitioners by the said bankrupt by way of collateral security for the debt due to them, in order that the said mortgaged premises might be sold, and the pro- duce applied in the reduction of your petitioners' demands, and that they might then be able to prove, under the said commission, for the balance due to them. That the said assignees accordingly caused the said property to be put up for sale by auction at G.'s coffee-house on or about the day of , and your petitioners received from the produce of such pro- perty the sum of £ , which being deducted from the said sum of £ , leaves a balance due to your petitioner, on the judgment in the said action in the sum of ^ That in or about the month of , your petitioners were applied to by the friends of the said bankrupt to discharge him from prison, and your petitioners consented to liberate the said bankrupt, if it met with the approbation of his assignees. That, in consequence thereof, Mr. P., a solicitor, employed on the part of your petitioners, called on Mr. R. who was the acting solicitor of the assignees, and informed him, that he the said Mr. P. had instructions to liberate the bankrupt, if the assignees had no objection ; but that if the assignees objected thereto, he the said Mr. P. was to act therein agreeably to their wishes. That the said Mr. R. then said, that it would be best not to let the said bankrupt have his liberty until he had executed the conveyance deeds of all the property which had been sold on the day of as aforesaid ; but the said bankrupt should get out of the way, and thereby occasion great trouble and difliculty in the execution of the said deeds ; and the said Mr. R. then requested that the said bankrupt might not be liberated until he hnd executed all the said conveyances. PETITIONS. 457 That, by the course of such proceedings, the said bankrupt would have been supersedable in the said actions, unless he had been charged in execution within terra ; and the said Mr. P., therefore, in order that the said bankrupt might, in compliance with the wishes of the said Mr. R., and for no other reason whatsoever, on the day of charged the said bankrupt in execution in the said first action in which your petitioner had as aforesaid, obtained judgment for £ That three of the conveyances of the premises sold as aforesaid on the day of were executed by the said bankrupt in the latter end of , and the beginning of , and another of such conveyances was not executed until the day of That there is now due to your petitioners the sum of £ in respect of the said first action, and also the said sum of £ , recovered in the said second action ; and there is also due to your petitioners a further sum of £ , being the amount of another bill of exchange discounted by your petitioners for the said M. N,, and which became due after the said two actions were commenced, but before the bankruptcy of the said M. N. ; and there is also due to your petitioners a considerable further sum for costs incurred in the said two actions, and in other actions brought against the acceptors, and other parties on the said bills of exchange, and for expenses attending the sale of the mortgaged pre- mises. That a dividend of the said JM. N.'s being advertised for the day of last, and neither of your petitioners being then able to attend to prove their said debts against tlie said bankrupt's estate, the solicitor of your petitioners attended the commissioners, acting under the said commission of bankruptcy against the said M. N. at , on that day for the purpose of entering a claim for the said sum of <£ , which re- mjiined due to your petitioners in respect of the said first action, and for the sum of £ recovered in the said second action, the said soli- citor not being then aware of tiie said further sum of £ due to your petitioners in respect of such subsequent bill as aforesaid. That the said claim was opposed by counsel, and the said commis- sioners thereupon permitted a claim to be entered, and a dividend to be reserved in respect of the said bill for £ , for which the said second action was brought, but the said commissioners refused to permit any claim to be entered on the said sum of £ remaining due in respect of the said first action, on the ground that your petitioners, by charging the said bankrupt in execution in such first action, had made an election not to come in under the said commission, with respect to the said de- mand. That your petitioners had no intention whatever to make an election io proceed at law, as to their demand in the said first action, bv charging 59 458 PETITIONS. the said bankrupt in execution thereon, and on the contrary thereof they had then fully determined to forego their said debt under the said com- mission. And your petitioners verily i)elieve, that the said assignees well understood that such was your petitioners' determination, and your petitioners did not in fact know that the said bankrupt was so charged in execution; but the solicitor, acting for your petitioners, of his own notion, charged the said bankrupt in execution for no olher reason than because it was necessary for the purpose of detaining the said bankrupt in prison, according to the wish of the said assignees, and because your petitioners had desired that he should do, with respect thereto, whatso- ever the said assignees should require ; and the said soliciior was not himself aware, that the act of charging the bankrupt in execution did in form constitute an election to proceed at law. Your petitioners therefore must humbly pray that your Lordship will be pleased to grant an order for your petitioners to be at liberty to call a meeting of the said commissioners, acting under the said com- mission so issued against the said M. N., in order that your peti- tioners may prove their respective debts under the same, or that your Lordship will be pleased to make such order, as to your Lord- ship should seem meet. And your petitioners shall ever pray, &c. J. L. Petition hy Assignees against their Bankrupt, who if as an Executor and residuary Legatee, to restrain him fiom receiving further Part of his Testator^s Property, and to pay what he had so received. In the matter of H. C, a bankrupt. To the Right Hon. the Lord High Chancellor of Great Britain. The humble petition of J. B. the elder, of, &<;. and R. G.^ of, &c. assignees of the estate and efiects of the said bankrupt. Sheweth, That on the day of ,, a comiDission of bankrupt, under the great seal of Groat Britain, was awarded nud issued against ihe said H. C, then of, &c. and he was thereiipon dijly found and declared a bankrupt, and the usual assignment of his e.-tate and effects was made to your petitioners, who were duly chosen by a majority of his creditors for that purpose. pExrxioNS. 4o9 That the said bankrupt was the sole executor named in the will of J. B., late of, &c. who died upwards of years since, and was also entitled, under the will of the said J. B., to his residuary estate and efiects, subject to the life-interest of S. B., the widow of the said J. B. therein. That the said S. B. died after the issuing of the said commission against the said H. C, and her executors having possessed themselves of the property which belonged to her husband, and to which the said bankr jpt became entitled upon hei- death, and having employed a JMr. F., an auctioneer, to sell tlie same, he, the said bankrupt, as executor of the said J. B., caused an action to be brought against the said Mr. F., in order to recover the value of the said goods, and W. D., the attorney of the said bankrupt, in the said action afterwards received from the said Mr. F. the sum of £ , in respect of the said action, over and above the sura of £ for his costs. Tiiat the said bankrupt brought the said action without giving any notire thereof to your petitioners, and your petitioners only learned the same from the solicitors concerned for the executors of the said S. B. That your petitioners caused applications to be made to the said bank- rupt and to the said Mr. D. tor the payment to your petitioners of the said sum of £ , as i)arl of the estate of the said bankrupt ; but the said bankrupt, and the said Mr. D. on his behalf, although they admitted, that there were no outstanding demands against the estate of the said J. B., other than the bill of the said Mr. D., and the proctor's bill for the proof of the will, refused to pay to your petitioners the said sum of £ , insisting that your petitioners were premature in calling upon the said liankrupt to account for the same, inasmuch as there was pro- perty of the said J. B. in the hands of a Mr. R. and a Mr. N., against whom the said bankrupt meant to proceed, and that he would account to your petitioners for the estate of the said J. B. when he had finally set- tled the same. That your petitioners, considering the said sum of £ would be in danger of being lost to the creditors of the said bankrupt, if permitted to remain in his hands, did, on the day of cause the said Mr. D. to be served with notice not to pay the said sum of o£' to the said bankrupt, but to pay the same to your petitioners, as bis assignees; but notwithstanding such notice, the said bankrupt hath since received from the said Mr. D. the sura of £ , part of the said sura of £ That it may be injurious to the creditors of the said bankrupt, who have proved their debts under the said commission, if the said bankrupts permitted to receive or recover such other estate and effects of the said .1. B. as may now be outstanding. 460 PETITIONS. Your petitioners therefore humbly pray your Lordship that the said bankrupt may be directed to pay over to your petitioners the said sum of £ , so received by him from the said M. D. as aforesaid, and that the said bankrupt may be restrained from receiving any further part of the said estate and effects of the said J. B. and that the said bankrupt may also be restrained from commencing or pro- ceeding in any action or suit for the recovery of any part of the out- standing estate and effects of the said J. B., and that your petition- ers may be at liberty to use the name of the said bankrupt for re- ceiving or recovering the residue of the said sum of £ , so re- maining in the hands of the said Blr. D., and the other outstanding estate and effects of the said J, B., and tliat the said bankrupt may, if necessary, execute to your petitioners a proper authorit}' for that purpose, or that your petitioners may have such other relief as the nature of the case may appear to require. And your petitioners shall ever pray, &c. Petition to prove an Annuity, or the Value thereof. In Chancery. In the matter of W. II. and R. J. bankrupts. To the Right Hon. the Lord High Chancellor of Great Britain. The humble petition of E. M. wiclow and relict of J. H. late of, &c. deceased, and sole executrix appointed in and by his last will and testament. Sheweth, That by a cerlain indenture, bearing date on or about, &c. and made between, &:c. (being the deed securing the annuity of ^ per annum, payabl*^ to J. H. and wife, and the longer liver, in consideration of J. H.'s retiring from the business of distillers.) That the said W. H. and R. J. did duly make and execute such two bonds or obligations in writing, as in the said indenture are stated to bear even date therewith, and in such words, or to such purport and effect as in the said indenture are recited. That the said J. H. departed this life on or about, &c. leaving your petitioner, his widow, and having first duly made and published his last will and testament in writing, and thereby gave and bequeathed all iiis property, of what nature and kind soever, to your petitioner, whom he ap- pointed the sole executrix of his said will. That on or about, &c. a commission of bankrupt, under the great seal of Great Britain, was awarded and issued against the said W. H. and PETITIONS. 461 R. J. wlio were thereupon duly found and declared a bankrupt, and were duly chosen assignees of their estate and efl'ects ; and an assignment thereof hath been duly made and executed to them by the major part of the commissioners named and authorized in and by the said commission. That at the time of issuing the said commission, there was due to your petitioner the sum of £ for arrears of the said annuity, and the said bond for securing the said annuity, having been forfeited at law, your pe- titioner hath lately attended at a meeting of the commissioners acting un- der the said commission, to prove the said arrears, and also to prove the value of the said annuity ', but the said commissioners, although they ad- mitted the proof of the said arrears, refused to admit your petitioner to prove the value of the said annuity. That no dividend has yet been made of the estate and effects of the said bankrupt. Your petitioner therefore most humbly prays your Lordship that she may be admitted a creditor under the said commission, for the value of the said annuity, and that it may be referred to the com- missioners acting under the said commission, to settle such value ; and that your petitioner may, from time to time, be paid dividends in respect thereof, rateably and in equal proportion with the other creditors of the said bankrupts, seeking relief under the said com- mission. J. L. Petition by Creditors against the Assignees, under a Com- mission of Bankruptcy, to have them removed, they not being Creditors, but the Friends of the petitioning Cre- ditors, and for thein to account for what had come to their Hands, and deliver up all Papers, ^c. In the matter of W. and J. O. bankrupts. To the Right Hon. the Lord High Chancellor of Great Britain. The humble petition of Sheweth, That on or about the day of , a commission of bankrupt, under the great seal of Great Britain, was duly awarded and issued against the said W. and J. O. of, &c. and co-partners, upon the petition of , and the said W. and J. O. were thereupon duly found and declared bankrupts, by the major part of the commissioners named and authorized in and by the said commission. That the said Messrs. N. and Co. the petitioning creditors, at the 462 PETITIONS. first public meeting under the said commission proved their debt, as amounting to £ and upwards, but did not then exhibit to the com- niissioners any account to shew liow the said debt was made out, as is usual and regular in such cases. That at the meeting for the choice of assignees, the said Messrs. N. and Co. altered the proof of their debt to the sum of <£ , and then exhibited their account, stating the particulars thereof; and the said Messrs. N. and Co. by reason of the amount of their debt, having the choice of assignees, chose the said N. M. one of their partners, and P. M. esq. who is not a creditor of the bankrupt, but is a particular friend of the said Messrs. N. and Co. to be the assignees of the said bankrupt's estate. That the said bankrupts were, at the issuing of the said commission, indebted to your peliiioner A. B. in the sum of £ (^Here state the fhhts of the respective petitioners.) That the debts proved under the said commission, by other persons than the said Messrs. N. and Co. amount altogether to the sum of £ That no dividend was made or declared under the said commission until the day of , when a dividend was declared of in the pound, and the said Messrs. N. and Co. at the meeting, of which such dividend was declared, again altered the proof of their debt, and made the same amount to tlie sum oi £ , according to a statement which they then exhibited, and which differed from their former statement, not only by carrying further sums to the debit of the said bankrupts, but also by reducing a sum of =£' , with wliich they had before credited the estate of the said bankrupts, in respect of securities of C. P. transferred to them by the said bankrupts, to the sum of £ , and by omitting altogether a sum of £ , with which they had before credited the said bankrupt's estate in respect of sir VV. J.'s assignment of all reckonings. That the said assignees produced, at such meeting, an account of the bankrupts" estate received by tliem, amounling, in the whole to the sum of£ , the first article of which was tiius stated : — « By cash rc- " ceived of sundry debtors to the estate of Messrs. N. and Co. £ .' And on the other side of the account was an article thus stated : — " To " cash retained by Messrs. N. and Co. being the amount of debts re- '• ceived by ihtm, and upon wliich they have a specific lien, or are to " give credit on account of their demand against the estate, £ ," That the said Messrs. N. and Co. claim to have a lien upon securities given to the bankrupts to a very great amount, which securities were transferred to the said Messrs. N. and Co. very shortly before the bank- ruptcy, and when they had fall kaowledge of the insolvency of the said bankrupts. PETITIONS. 4bD That the said bankrupts had a house of business at P. on which the}' drew bills to a large amount, and which were negociated through the house of the said iMessrs. N. and Co, ; and the said Messrs. N. and Co. on the negociation of such bills, not only charged the full rate of exchange thereon, which according to the course of such transactions, includes the interest or discount for the time which such bills have to run, but also made a further specific charge after the rate of ^ per cent, per ann. for such interest or discount thereby taking an usurious advantage of the said bankrupts. That by reason of the said N. M. and P. M. the assignees, being such partner and friend of the said Messrs. N. and Co. as aforesaid, and hav- ing the possession of all the books and papers of the said bankrupts, and the control of their affairs, the accounts of the said Messrs. N. and Co. with the said bankrupts, cannot be fairly and fully investigated, nor jus- tice done to the other creditors of the said bankrupts, unless new as- signees be appointed. Your petitioners therefore humbly pray your Lordship that the said N. M, and P. M. may be respectively discharged from being as- signees under the said commission, and that a meeting may be had of the commissioners named in and authorized by the saiil commission, for the choice of one or more assignee or assignees of the said bank- rupts' estate and effects, in the places and steads of the said N. M. and P. M. and that the said N. M. and P. M. may be directed to deliver to such person or persons as shall be chosen such new as- signee or assignees, such part of the estate and effects of the said bankrupts as shall appear to be in their hands remaining in specie, together with all books, papers, and writings, in their or either of their custody or power respectively belonging, or any wise relating to the said bankrupts, or their estate and effects, and that the said N. M. and P. M. may join in assigning over of the said bankrupt's estate to such new assignee or assignees, and that the said N. M. and P. M. may be respectively ordered to come to an account be- fore the major part of the commissioners, for what hath come to the respective hands of the said N. M. and P. M. or to the hands oi any other person or persons, by their respective orders, or for their respective uses ; and that all necesi^ary directions may be given con- cerning the taking such accounts, or that your Lordahip will be pleased to make such order in the premises as to your Lordship shall seem meet. And your petitioners shall ever pray, &c. J. L. 464 PETITIONS. Petition by a Bond Creditor to have certain Property as- signed to him as a Security, sold, and to prove the De- ficiency under the Cominission. In the matter of J. A. a bankrupt. To the Right Hon. the Lord High Chancellor of Great Britain. The humble petition of T. A. of in the county of M. Sheweth, That in or about the month of G. P. then a partner in a banking-house in B. street, with J. S. J. D. G. T. S. and the said J. A. applied to your petitioner to accommodate the said banking-house with a loan of money or stock, and thereupon your petitioner agreed to lend to the said banking-house the sum of <£ Navy j percent, annuities, which your petitioner then had standing in iiis name, on the engagement of the said G. P. that the several partners of the said banking-house should give your petitioner their joint and several bond for replacing the said stock, and paying to your petitioner the dividends in the mean time, as hereinafter stated, and should also give to your petitioner some real security for the same. That your petitioner, on or about the day of , accordingly transferred the said sum of £ Navy 5 per cent, annuities to the said G. P. for the use of the said banking-house ; and thereupon the said J. S. &c. made and executed their joint and several bond to your said petitioner, in the principal sum of £ , with a condition there- under written, for making void the same, if the said J. S. &c. (^set out to the end of the bond.) That in the said condition of the said bond, and also in the indenture of the , hereinafter mentioned, the stock transferred by your petitioner as aforesaid, was, by mistake, stated to he £ ,5 per cent. Bank annuities, in the place of £ , 5 per cent Navy annuities. That in further performance of the agreement between your petitioner, and the said G. P. the said Messrs. S. and Co. at the same time, by way of further security for the said stock, and also, by way of security to the honorable C. A. for a debt due to him from the said banking-house, de- posited with Mr. L. in trust for your petitioner and the said honorable C A. the several "deeds whereby the said banking-house had become in- terested in two several sums of £ and £ , secured on certain estates of P. B. Esq. in the indenture hereinafter next mentioned, and more particularly stnted. That, by a certain indenture of four parts, bearing date on or about PETITIONS. 465 the day of , and made between, &c. {the deed assigning over the two last sums, as a security to petitioner, it is necessary/ to state this deed, as it shews more dearly the nature of the interests to he sold.^ That the said indenture was duly executed by all the said parties thereto, except the said J. D. but the said J. D. was a party to the deposit of the said deeds with the said Mr, L. and directed the same, or fully approved thereof. That a commission of bankrupt, bearing date on or about the, &'c. was awarded and issued against the said J. A., and he was thereupon duly found and declared a bankrupt, and the usual assignment of his estate and effects hath been made to, &:c. That no part of the said sum of ^ ,5 per cent. Navy annuities, was re-transferred to your petitioner, pursuant to the condition of the said bond, nor hath since been re-transferred to him, and the whole thereof, together with the amount of the dividends, from the day of , now remains due and owing to your petitioner. Your petitioner therefore most humbly prays your Lordship that the interest of your petitioner's said two several sums of £ and £ , and in the security for the same, mentioned in the said in- denture of the may be sold before the major part of the com- missioners in the said commission named; and that an account may be taken of what is due to your petitioner in respect of the principal of the said sum of c£ ,5 per cent. Navy annuities and of the dividends thereon ; and that the purchase money arising from such sale as aforesaid, may be applied in or towards satisfac- tion of what shall be found due to your petitioner, upon such ac- count. And that if such purchase shall be insufficient to pay to your petitioner what shall so be found due to him, then that your petitioner may be admitted as a creditor under the said commission, against the said J. A. for such deficiency, and may receive the divi- dends thereon from his separate estate, from passing with the other creditors of the said bankrupt, or that your Lordship «ill be pleased to make such further or other order in the premises as to your Lord- ship shall seem meet. And your petitioners shall ever pray, (fee. 60 466 I'ETITIONS. Petition to have certain Shares of Slock transferred to each Petitioner, they having attained their respective Ages, with a Decretal Order recited. Opinion as to the Affi- davits necessary as to coming of Age, and Affidavits of Incapacity to maintain Infants ivithovt an alloivance. Between W. VV. the eldfr, and JM. his wife, since deceased, Z. G., lately deceased, and M. his wife, K. W., now R. and J. W., E. W., &c. &'r. infants, by the said W. VV. the elder, their father and next friend. Plaintiffs, and W. H., since deceased, J. D. W. and W. J. Defendants. To the Right Hon. the Master of t!ie Rolls. The humble petition of W. W. tlie elder. Sec. &:c. above- named. Shewetk, That J. D. late of, &c. duly made and published his last will and tes- tament in writing, bearing date on or about the day of whereby, after giving, &c. That the said Testator, after the making of his said will, duly made and published a codicil thereto, bearing, date, &c. and therei)y gave certain pecuniary legacies therein mentiontd, but did not, by such codicil, any otherwise revoke or alter his said will. That the said Testator departed this life in the said, Sec. without hav- ing revoked or altered his said will, except as before mentioned : and soon after his death, the said executors T. D., S. ()., and the Defendant, \V. H. duly proved such will and codicil in the Pierogative Court of the archbishop of C. and took upon themselves the executorship thereof. That in pursuance of the directions of the said will, the said executors laid out ami invested the clear residue or surplus of the said Testator's personal estate, exclusive of his said share in such copartnership, in the purchase of c£ Bank 3 per cent. &c. which sum was transferrefi into their own names in the books of the Governor and Company of the Bank of England, and the interest or dividends arising therefrom, were duly paid according to the directions of the said will to the said M. W. That the capital of the said Testator, which v/as, at the lime of his death, employed in the said partnership business, continued to remain and be employed in such business, and the same was carried on for the joint benefit of the sairovided. 468 FETITIU-NS. That no decree hath yet been made in the sjiid suit, and that the said M. W. the daughter of the said Testator, departed this life, on or, Sec. having in pursuance of t'.ie aforesaid order, received the interest and dividends of the said sum of £ until the time of her death. That your petitioners, M. G., R. R., &c. having respectively attained their ages of tw enty-one years, are, as they are advised, entitled each to one tenth share of the said sum of £ , 3 per cent, &c. without prejudice to their interests in liie said suit. And your petitioners, J. W. E. W., &c. the only other cliildren of the said JM. W. being still infants, your petitioner W. W., the elder, is entitled to have the interests and dividends of their respective tenth shares of the said sum of £ stock paid to your said petitioner, for their respective maintenance and educa- tion, until tiiey shall severally attain their ages of twenty-one years. That your petitioner, M. G. attained her age of twenty-one years on the, &'c. and hath survived her late husband, the said PlaintiiT, Z. G. That your petitioner, R. R. attained her age of twenty-one years, on the, &c. a short time previous to which she intermarried with your peti- tioner, E. R., and that no settlement of the interest of your petitioner, R. R. in the said sum of stock, hath been made. And your petitioner is desirous that lier one-tenth share of tiie said stock may be transferred to your petitioner, E. R. That your petitioner, J. D. W. attained his age of twenty-one years on or about, &c. Your petitioners therefore humbly pray your Honor that the sum of £ , being one-tenth part or share of the said sum of £ , 3 per cent. &c. may be transferred to your petitioner, M. G. and that the like sum of £ may be transferred to your petitioner, and that the like sum of £ may be transferred to your peti- tioner, J. D. W. And that your said petitioners may be paid one tenth part or share of the dividends which i^hall accrue due on the said stock previous to such transfers. And that your petitioner, W. W., the elder, may from time to time, be paid the dividends of the said remaining shares of the said sum of stock, so long as your other petitioners respectively shall continue infants, to be by him applied for their several maintenance and education ; or that your petitioners may have such further and other relief as the nature of the case may appear to require, and to your Honor shall seem meet. And your petitioners, &c. Opinion. — There must be affidavits of the petitioners being the only children of M. W. of the tiiree petitioners having attained tlie ages of twenty-one, of the death of the said M. W., of the death of the said PETITIONS. 469 Z. G. and of the marriage of R. R., and that the petitioner, W. W. the elder, is not of abihty to maintain the children, and R. R. must be present in Court, and pray that the stock may be transferred to her hus- band. The suit is abated, and there may be difficulties made about the petition ; but being for the payment of money, it may be hazarded. The Defendants must be served with the petition. Petition by Creditors for leave to come in and prove their Debts after the Time limited by the Court had expired, stating they had not seen the Advertisements. Between A. T. widow, &c. . . Plaintiff, and W. H., &c. . . . Defendant. To the Right Hon. the Master of the Rolls. The humble petition of J. K., C. D., E. F., and G. II. Shkweth, That upon the hearing of this cause before your Honor, on or about the, &c. it was, amongst other things, ordered and decreed, that it should be referred, &c. (the usual decree for creditors to come in and prove their debts, by a day limited by the advertisements.) That the said Master made his report, bearing date the, &:c. which stands absolutely confirmed, and thereby, amongst other things, certified that, &:c. (being the amount of the debts which had been proved.) That all the debts so reported due by the said ^Master, together with some other debts which have since been claimed, have been fully paid and satisfied, and there now remains in the hands of the Accountant-Ge- neral of this honorable Court, the sum of £ , being the residue of the said sura of £ , directed by the decree to be applied in payment of the said Testator's debts. That, at the death of the said Testator, there was due from him to J. J. of, &c. the sum of £ for board and lodging, and, on his acceptances of two bills of exchange, and such debts now remain wholly due and unsatisfied. That the said J. J. hath since departed this life, having first duly made and published her last will in writing, and thereby appointed one J. C, since deceased, and your petitioner, J. H., the executor and executrix thereof, and your petitioner, having duly proved the said will of the said •T. J. in the proper Ecclesiastical Court, is now the legal personal repre- sentative of the said J. J. 470 PETUIONS. Tliat, at the death of the said Testator, there was aue from hiin to vour petitioner, C. D., of, &c. the sum of £ , which now remains wholly due and unsatisfied. Tliat, at the death, &c. [state each preceding creditor in the same manver.) That your petitioners, liaving been peverally unapprised of the said ad- vertisements, published by the Master for the creditors of the said Testa- tor, to come in before him and prove their debts, had no opportunity to claim the same before the said Master made his report. Your petitioners therefore humbly pray that they may severally be at liberty to come in before the said Master, and prove their said debts, and that they may be paid the same out of the said sum of £ now in the hands of the Accountant-Gcneral of this Court, in trust in this cause, your petitioners hereby ofiering to contribute to the Plaintifl" their proportions of the expenses of this suit. And your petitioners shall ever pray, &:c. Opinion. — It v.ill be necessary for the petitioner K. to prove before the Master, the fact of the lodging and boarding of the Testator at the house of Mrs. .T. by the affidavit of some persons who can speak to it, and evidence must also be given, as to the non-payment of the two bills of exchange. To support the petition, the petitioners must join in an affidavit to the eiTect of it. Petition for a Ne exeat regno, to prevent the Husband from going beyond Sea, until he has settled Alimony on his Wife, stating an appeal to the High Court of Dele- gates, and Excommunication. That on or about, 6^-c. your petitioner intermarried with the said De- fendant C. S. and that having been treated with great unkindness and cruelty by the said C. S. she was compelled in the year to institute a suit of divorce against him, for cruelty and adultery in the court of the dean and chaj)ter of Y. That the said C. S. appeared to such suit, and entered a protest thereto, which protest was afterwards over-ruled, and the proctor of the said C. S. was assigned to appear absolutely in the month of That the said C. S. appealed from such sentence, to the Consistory, Court of Y. and in the month of the judge of that court dismissed the said C. S. therefrom, and your petitioner thereupon ap- PETiTIO>ii=;. 471 pealed fiorn sucli last monlioncd sentence to the iiigh court of dele- gales. That t!ie said appeal of your ])etJfioner came on to he heard before the high court of delegates in the month of , when the said court was pleased to assign the proctor for the said C. S. to appear abso- lutely, and condemn the said C. S. in costs. That the costs to be paid by the said C. S. in pursuance of the said sentence of the said court of delegates, have been regularly taxed and settled at the sum of ot , and that a monition !)ath been granted under the seal of the court of delegates, to compel the said C. S. to pay the said sum to your [letitioner, or her proclor, with which monition the said C. S. hath been duly served. That since tiie said decision of the court of delegates, your petitioner hath been, and now is proceeding in the said suit, so instituted by her as aforesaid, in the court of the dean and chapter of Y. tor a divorce against the said C. S. for cruelty and adultery, and hath not yet obtained any sentence for alimony therein, and the said C. S, in order to defeat your petitioner of alimony in such suit, and also to avoid the payment of the costs id which he was condemned in the court of delegates, as atbresaid, threatens and intends, that when and so soon as he shall be excommuni- cated, which will be the next proceeding to enforce his obedience to the said order of the court of delegates, he will make over his property to his son, and quit the kingdom, and the said C. S. declares, that your peti- tioner shall never have any thing which he can dei)rive her of. That your petitioner hath by the said her next friend, filed her bill in this honorable Court, against the said C. S. stating the matters aforesaid, as by the certificate of the six-clerk will appear. Your petitioner therefore most humbly prays your Lordship, that a writ of ne exeat regno may be awarded against the said C. S. or, that your petitioner may have such further and other relief in the premises, as the nature of the case may appear to require, and your Lordship shall seem meet. And your petitioner shall ever pray, &c. Petition to be discharged from the Fleet. (State a former petition bi; the memoe,:", of a club to have ainch trans- ferred into the sold name of their trustee, as far us is necessary. That by an order made in pursuance of the said petition, bearing date. Sir. it was ordered, that, &c. (stats order.) That your petitioner having neglected to comply with the aforesaid »i-der, it was, by another order, bearing ilalc. &r. (.<;fcitc it.) 472 PETITIONS. That your petitioner not being able to transfer the said several sums of stock, and pay the dividends due thereon within the time limited by the said last-mentioned order, was, on or about, &c. committed to his ma- jesty's prison of the Fleet, and now remains there. That your petitioner liath since transferred the said two several sums of £ into the name of the said L. F. alone, and hath also paid the dividends due on the said respective annuities to the said L. F. in trust for the benefit of the said society', in obedience to the order aforesaid, and the said (being the former petitioners) on behalf of themselves, and the rest of the members of the said society do consent to your petitioners discharge. Your petitioners therefore humi>ly pray your Honor, that he may be discharged out of the '■ustody of the warden of the Fleet, paying his fees. And your, &c. Opinion. — I rather think, that if the clerk in court for the former petitioners, signed at the bottom of this petition, a memorandum of con- sent to the discharge of Mr. N. that the Master of the Rolls will make an order, as of course, for his discharge, without any hearing of the peti- tion. Petition of Appeal. The humble petition and appeal of B. S., R. P. and R. K., esq. and J. C. clerk, the above named Plaintiff'. Sheweth, That your petitioners exhibited their bill of complaint, in or as of term , against the above-named Defendants M. P. widow, H. L., J. L., &c. stating as is therein mentioned, and thereby pray- ing, that, &c. [set out prayer.) (Petitioners may be declared entitled to the sum of £ , referred to the blaster, to compute interest on £ accountant-general may pay said sum of £ in i)art satisfaction of account, may be declared entitled to the sum of £ &c.) That the Defendant J. B. as the personal representative of the said T. B. and the Defendants J. L. &;c. as the representatives of the said P. W. by their answers to the said bill, resisted the right of your peti- tioners to be paid the said £ or any part thereof, by them the said Defendants, out of the estates of the said T. B. and P. W. re- spectively. PETITIONS. 473 That the said cause came on to be heard before the right honorable the Master of the Rolls, on the, &c. when his Honor was pleased to order, among other things, that your petitioner's bill, as against the said Defen- dants J. B., &c. should stand dismissed out of this Court, without costs, and the decree has been duly passed and entered. That your petitioners apprehend they are aggrieved by the said decree, for that his Honor hath dismissed their bill as aforesaid, against the said J. B., &c. whereas your petitioners are advised and submit, that the said bill ought not to have been so dismissed, but that, according to the case made by your petitioners at the hearing of the said cause, your petitioners ought to have been declared by the said decree, to be entitled to the relief sought by their bill against the said Defendants J. B., &c. respec- tively. Your petitioners therefore appeal from the said decree to your Lo'-d- ship, and humbly pray of your Lordship, that so much of the said decree as directs that your petitioners' bill, as against the said De- fendants J. B., &■€. be dismissed, may be reserved, and that your petitioners may be declared to be entitled to reli<^f against the said Defendants J. B., &c. in the manner sought by their said bill, or that your Lordship will make such further or other order touching the premises, as shall be right. The ccrtrftcaie of the tico counsrL We humbly conceive it to be fit, that the said cause should be reheard before your f-ordship. A. B., r. F 61 474 SECT. II.-— INTERROGATORIES. THE mode of examining witnesses in equity, is by written interrogatories exhibited by the party, Plaintiff' or Defendant, or directed by the court to be proposed to, and asked of, the witnesses in a cause touching tlic merits thereof, or some incident therein. Also interroga- tories may be necessary touching contempts of writs, pro- cesses, and orders of court, whereupon the party offending is to be examined concerning such contempt, &,c. Little can be said upon this branch of pleading, which is not to be found in every book of practice. And as little can be said of the frame and form by which they are to be drawn, except that all interrogatories must be short and per- tinent, and necessarily to the point. They must not be lead- ing, as," did you not do, or see such a thing? ^t." if they are such, the deposition taken thereon will be suppressed : and so it is, where the interrogatories arc too particular, or point to one side of the question more than the other. The interrogatories w^hich follow, will be found quite sufficient for the Chancery draftsman, and the best way for him to gain an ease in forming them, will be by an attentive perusal of these which arc proffered to his notice. INTERROGATORIES. 475 To prove Goods sold and delivered, and Money lent Interrogatories to be administered to witnesses Xo be produced, sworn, and examined, in a certain cause now pending, and at issue, in his Majesty's High Court of Chancery at W. wherein H. H. J. A. and J. S. are Complainants, and J. S. and R. P. are Defendants. On the part and behalf of the said Complainants. Inquiry as to ] st Interrogatory. Do you know the parties Com- the knowkdgc plainants and Defendants, in the title of these interroga- of parties. tories named, or any, and which of them, and how long have you known them, or any, and which of them re- spectively ? Declare the trutii of the several matters by this interrogatory inquired after, according to the best of your knowledge, remembrance, and belief. As to goods 2d. Do you know of any goods having been at aay f^old and deli- time, previous to the month of , sold or delivered, vered. by the said Complainant H. H. or by the said Com- plainant J. A. to the said Defendant R. P. ? If yea, set forth what goods were so sold and delivered by the said Complainants II. H. and J. A., or either and which of them to the said R. P. and what was the value thereof, and at what time or times in particular the same were delivered to the said R. P. and how and by what means in particular you arc acquainted with the several matters aforesaid. Declare, &:c. As to money 3d. Do you know of any money having been at any adoanced a7id time previous to the month of , lent or ad- tcnt, vanced b^' the said Complainant II. H. or by the said Complainant J. S. to the said Defendant R. P. ? If yea, set tbrth what sums of money respectively were so lent and advanced by the said Complainants II. H. and J. S. or either, and which of them, to the said R. P. and at what time or times in particular, the same and each of them were so lent and advanced, and how and b)' what means in particular are you acquainted with the several matters aforesaid. Declare, Sec. Lastly. Do you know of any other matter or thing that may tend to the benefit and advantage of the Com- plainant in this cause.? If yea, declare the same as 47G INTERROGATORIES. fully as if you had been thereunto particularly inter- rogated. Observation. — The thle of the interrogatories must be prefixed at the top of the sheet as above : the first interrogatory generally contains an inquiry of the witness, if he knows the parties in the cause, and it is usual to add a concluding interrogatory, if the witness knows any thing which may tend to the benefit of the party, for whom he is examined. Interrogatories to prove Books of Account. Interrogatories exhibited before, &c. (the usual title before a master.) THE CASE. G. G. the late husband of Plaintiflf, was agent to D. Defendant's husband in L. and as D. made remittances to G. who paid money for D. in the capacity of agent, an account was opened be- tween them. G. died. The person to whom these interrogatories were administered, was em- ployed after G.'s death, to settle the accounts between him and D., afterwards D. died. The Plaintiff brought her bill, praying an account, and alleging, that a sum of money remained due to her from the estate of D. 1st. [Knowledge of the parties.] 2d. AVere you or not, ever, and when, employed by any, and what person or persons, and whom by name, to make out any account of dealings and transactions between the said G. G. and T. D. in their respective life-times ? And if yea, when did you receive from the Plaintiff any books, papers, or writings, for such purpose, and particularly, whether or not any and what books or book which were, or was, or appear- ed to have been kept by, or for the said G. G. in his life-time, for the purpose of making entries of any and what kind, relating to dealings between him and the said T, D. ? Look upon the books produced, &c. Were, or was the same, or either, and which of them, ever, and when, delivered unto you, by, or on behalf of INTERROGATORIES. 477 the PJaintifT, for such purpose, or on such Occasion, or for what other purpose, or on what other occasion, and what do the same respectively purport to be ? De- clare, ^c. 36. Did you or not ever, and when, or about what time, in any, and what manner, apply to the said T, D. to deliver or send up to you, or furnish you with any books or book of account, papers or paper, matters or things, for or towards enabling you to make out, or assisting you to make out the account of dealings and transactions between the said G; G. and T. D. and did not the said T. D. ever, and when, or in what manner, deliver, or send unto you, any, and what books or book of account, papers, or writings, for such purpose, or in consequence of ?uch application ? Look on the books, papers, and wrilings, Set forth liow he at such time or times, expressed or declared himself relating thereto. Declare, Sec. 8th. Whether or no did the said G. G. in the course of the dealings and transactions between him and the said T. D. frequently, or how often, for any, and how long time, receive from the said T. D. drafts or bills of exchange for money, and to what amount yearly, for the purpose of the said G. G. receiving the money payable thereby, or for what other purpose? And whe- ther, or not, also for the purpose of the said G.'s paying all or part of the money, so received, to any other per- son or persons on account of the said T. D. ; did it or not appear to you, on drawing out the accounts between the said G. G. and T. D. that it was reasonable that any, and what sum of money should be allowed by the said T. D. and on what ground, unto the said G. G. or his representatives, or estate, as, or by way of com- mission of receiving the money, on, or by virtue of such bills or drafts, was, or were not, any, and what sums of money, charged in the accounts drawn out by you as aforesaid, for such commission, and whether, or not, for postage of letters ? Had you not, ever, and when, any discourse or conversation with the said T. D., with regard to his making any, and what al- Jowance to the estate or representative of the said G. G. for such connnission and jx)stage of letters or on either, and which of sucji accounts ? If yea, what answer did the said T. D. make, or how did he express or declare himself relating to such matters or things, or either, and which of tliem ? Dedar'^. (S'r. Lastly. 480 INTERROGATORIES. Interrogatories to prove an Agreement. Til Chancery. Interrogatories to be administered to wit-^ nesses, &c. wherein I. D. is Complainant., and 1. D. and T. R. C. are Defendants. On the To prove a- greement hy subscribing- 7cif7iess, if not by some person who knows D.-s hand-writing. To prove the letter, daled,S{c. by the same tcit- ness who is ex- amined on the 2fZ interroga- tory. To prove offer of money to De- fendant D., by the examination of Mr. E. part and behalf of the Complainant as follows : 1st. [Knowledge of parties.] 2d. Look upon the paper-writing, now produced and shewn to you, at this the time of your examination, marked with the letter A. Whether or no are you by any, and what means acquainted with the character and manner of hand-writing of the Defendant I. D. ? And whether or no is the name I. D., appearing to be set and subscribed to the said produced paper-writing, of the proper hand-writing of the said Defendant I. D., as you know or believe ? Declare, &c. 3d. Look upon the letter, or paper-writing, now pro- duced and shewn to you, at this th^time of your exami- nation, marked with the letter B, and the supei^scrip- tion or direction thereof. Whether or no are you by any, and what means acquainted with the character and manner of hand-writing of the said Defendant L D. ': And whether or no is the body of the said letter, or paper-writing, and the name L D., appv':aring to be set and subscribed thereto, and the superscription or di- rection of the said letter, or either, and which of thejn of the proper hand-writing of the said Defendant L D., as you know or believe ? Declare, &c. 4th. Whether or no was you, at any time in the year , and when, and where, present with the said Complainant and the said Defendant L D. when any conversation passed between them respecting the public- house called the , at E., in the occupation of the said Complainant, and any agreeinent relating thereto ? If yea, set forth the particulars of such con- versation, and what was said therein by the said par- ties respectively, and whether tlie said Complainant then offered to pay any, and what sum of money tn the said Defendant I. D. ? Set forth, &c. INTERROGATORIES. 481 cliase as to their Jcnowledge of Plaintiff's agreement. To examine the 5th. Whether or no did you, at any time, and when, solicitors of De- treat with, or enter into any agreement with the said fendant R. C, Defendant I. D. for the sale by him of the pubh'c- leho contracted house at E,, in the pleadings of this cause mentioned, for the pur- to the Defendant T. R. C. ? If yea, when, and by whom, were you employed to enter into such treaty and agreement, and when, and from whom, respective- ly, did you receive all and every your instructions or directions as to such treaty or agreement ? And in particular did you ever, and when, receive any instruc- tions or directions respecting such agreement from D. W. and W. H., the partners of the said Defendant T. R. C, or either, and which of them ? And whether, or no, pending such treaty, or after the said agreement was concluded, and before the purchase-money was paid by the said Defendant T. R. C, pursuant to such agreement, did you know, or believe, or had you any in- timation that the agreement, in the pleadings in this cause set forth, *or any agreement had been entered into be^ tween the said Complainant and the said Defendant I. D., as to the sale of the said public-house, called the , by the said I. D. to the said Complainant ; and when, and from whom, and upon what grounds did you know or believe the same, or when, and from whom, did you receive such intimation ? And did you, at any time, and when, before the said agreement was concluded, or before the said purchase-money was paid by the said Defendant T. R. C, inform the said Defendant of sucli your knowledge or belief, or of such intimation, and if not, why ? Set forth, &c. 6th. Whether or no did your ever and when, treat or agree with the Defendant I. D. for the sale by him of the public-house at E., in the pleadings of this cause mentioned, to the Defendant T. R. C, or em- ploy any person or persons, and whom in any such treaty or agreement; or did you ever, and when, and to whom, give an}'^, and what, instructions or directions as to such treaty or agreement.^ And wlietlier or no did you rest, are very so treat or agree with the said Defendant I. D., or so strictly drawn, employ such person or persons in such treaty or agree- beinfr unwilling nient, or give such instructions or directions as to such icitnesscs.'] treaty or agreement by the previous authority of the said T. R. C, or with his privity or approbation ; or 62 Tfl examine the partners of T. R. C, and jjrove agency iefween them. [This inter rd- gatory and the 482 INTERROGATORIES. tlid he, after you had so treated or agreed, or so em- ployed such person or persons, or given such directions or instructions, know and approve of the same, or how otherwise ? And whether or no pending the treaty with the said Defendant I. D. for the sale of the said public- house to the said Defendant T. R. C, or after the agreement for such sale was concluded, and before tiie purchase-money was paid by the said T. K. C, pur- suant to such agreement, &c. ? (as the concluding part of the former interrogatory.^ Set forth, &c. 'to jyrcme a 7th. Whether or no did you, on any day, and when conversation in particular, in or about the month of , hettceen Plain- dine in company with the said Complainant at the pub- tiff and one of lie-house at B. ? And whether or no did the said the partners of Complainant then say to you, or to any other person. Defendant and whom in your presence or hearing, that lie had T. R. C. made any agreement for the purchase of the public- house, called the , at E., in which he lived, or to any such, and what, clifiect ? And whetber or no was the agreement between the Defendants I. D. and T. R. C. as to the sale of the said house then con- cluded, or had the said T. R. C. then paid his pur- chase-money for the said house to the said I. D. as you know or believe ? And whether or no did you men- tion, or give any inlimalion to the said T. R. C. of ■what the said Complainant had then said, before the said agreement was concluded between the said De- fendants I. D. and T. R. C. or before the said pur- chase-money was paid by the said T. R. C, and if not, why ? Set forth, &c. For the exa- 8th. Whether or no did you ever, and when, an Ph Q c« fa r ^ K O ^ w r eg o e I I tl Q X « S -^ ■" -2 INTERROGATORIES. 487 STATEMENT OF THE CASE. The Plaintiff" filed his bill against the Defendants, the five last of which were the tenants, or the representatives of tenants, in possession of the estate in question, and the three first were mortgagees, or had some claim upon the estate. It appeared by the bill, that M. S. by her will, bearing date the , devised to her kinswoman, S. C. wife of W. C all her real estate at W. C. for life : remainder to her son or sons living, in equal shares and proportions ; and she charged the said VV". estate after the death of the said S. C. with the payment of =£ a-piece to her daughters. And it seems, that by the general rule, and the authorities upon the subject, that on account of the charge on J. to pay the legacies of £ , that he took, upon the death of his mother, the W. estate in fee, notwithstanding the want of words of limitation to the heirs. The bill was for a redemption of the said estate, and for the usual accounts to be taken. Upon the coming in of the answers, it ap- peared that L. and M. had assigned over all their interest to the Defen- dant F. and he admitted that he was a mortgagee in possession for £ , but denied Plaintiff's title, and said he had heard that W. C. the real heir, was alive ; and also stated that the Plaintiff had contracted to sell his equity of redemption, as was the fact. The Plaintiff, however, afterwards obtained a regular release of such contract. The pleadings were submitted to Mr. L. to advise as to further proceedings, and he gave the following opinion ; — " It appears to me, upon these pleadings, that Mr. F. is the only one " of the Defendants who is a necessary or proper party to the suit. And " if the suit be proceeded in, I think the bill ought to be dismissed as " against all the other Defendants. But before the Plaintiff takes upon " himself the expense of dismissing this suit, he ought to be quite sure " that he can make out his own title. It no where appears by whom the '' original mortgage of £ was made ; but by whomsoever it was " made, the Plaintiff has to make out a clear descent and title from that " person, and he ought to be quite sure, tliercforc, not only that he can *' make out his own pedigree, but that he can prove all other persons " who wouliJ-stand in his way to be dead without issue, and intestate. It " seems, by Mr. F.'s answer, that the Plaintiff has entered into some *' written contract with S. and R. for the sale of his equity of redemption. '• If this be so, the circumstances must be inquired in!o accurately, be- " cause it may turn out that the Plaintiff has fully passed all liis interest ^' in the said suit, or at least that it may be necessary to make these per- " sons parties to the suit. It is very material to ascertain by whom the " original mortgage was made. As part of the property is copyhold, it •' might be known by searching the court rolls of the maJior.'- 488 KMERROGATORIES. The following are the Interrogatories to prove Plaintiff ^s Tiile. In Chancery. Interrogatories to be exhibited to witnesses to be produced, sworn and examined in a cer- tain cause depending in tlie High Court of Chancery, wherein E. C. is - Complainant, and S. L., &c. &c. Defendants. On the part and behalf of the Complainant as follows. 1st. Interrogatory. Do you know the parties Com- plainant and Defendants, in the title of these interroga- tories named, or any, or either, and which of them r And how long have you known them, or any, or either, and which of them respectively ? Declare the truth, and your knowledge therein. For the execu- 2d. Whether or no did you know M. S. formerly tors of Plain- of, &c. and when, or about what time, did the said tiff^s mothery M. S. die } And whether or no did you know W. C. and any other formerly of, &c. and S. C. his wife ; and was the said person who can S. C. in any manner, and how, related to the said M. S. ; speak with ac- and when, or about what time, and where did she die ; curacy as to and what children had the said S. C. ; and what chil- pedigree. dren survived her ; and if any child or children of the said S. C. died in her life limej did such child or chil- dren have any child or children, and what are become thereof? And whether or no did you know J. C. of, Szc. the son of the said S. C. and S. C. tlie younger, and E. C. the daughters of the said S. C. and did the said S. C. ever, and when, marry ; and when, and where did he die ; and whether testate or intestate ; and had he, or did he leavo any child or children ? And if yea, what are become thereof? And did the sllid S. C. the daughter of the said S. C. ever, and when, marry, and to whom, and when, and where did she die ; and what children had she, or did she leave ? And whether or no did you know W. C. and T. C. sons of the said S. C. the younger, and what became of the said W. C. ; and did he ever, and when, marry, as you know or be- lieve ; and did the said T. C. ever, and when marry, and wherf, and when, or about what time did he die. INTERROGATORIES. 489 For tlic Exe- cutor of Plain- tiff's mother, or any other jser- son who can speak to the fact of posscs- ,. in the said county of M. called L. in the occupation of D. H. or to another messuage, lands, and premises in the said pa- rish of B. called T. P., in the occupation of the said D. H. or to another messuage, lands, and premises called C. P., situate in the parish of M. in the said county, in the occupation of J. J. ? Set forth a list or schedule of 508 INTERROGATORIES. all and every such deeds or deed, instruments or instru- ment, papers or paper, writings or writing ; and set forth what is become of such thereof as were, but are not now, in your custody or power ; and set forth also whether any person or persons, and whom in particular as you know, or for any and what reason believe, has, or have now, or has, or have at any time, and when, had in his, her, or their custody or power, any and what, deeds or deed, instruments or instrument, papers or paper, writings or writing, belonging, or in any man- ner relating to the said freehold and copyhold estates of the said Testator, or any and what part thereof. Interrogatories for the Examination of Executors before th^ Master, after the Hearing. Between A. B. . . . Plaintiff, Account of personals. and CD. Defendant. Interrogatories exhibited on behalf of the said Plain- tiff, before I. E. esq. one of the Masters of this honorable Court, for the examination of the De- fendants, pursuant to the decree made in this cause, bearing date the Whether or no was D. W. deceased, in the pleadings of this cause named, at the time of his death, possessed of, entitled to, or interested in any and what, goods, chattels, personal estate and etitects, as you know, or for any and what reason believe ? If yea, set forth a full, true, and just inventory and account thereof, and of every part thereof, and of all the particulars whereof the same consisted, and the quantities, qualities, full, real, and true valuations of all such particulars. And whether or no were all, or any, and which of such par^- ticulars, and to what amount and value, possessed ov received by, or come to the liands or use of you, or one, and which of you, or any and what, persons or person, by the order or for the use of you, or one and which of you, and how, and in what manner, and when, and where, and by whom, and for how much have the same, and every, or any, and what part thereof been INTERROGATORIES. 509 Debts due to Testator. Account of debts oioing by Testator. Funeral ex- pensesandofher sold and disposed of? And whether any and what parts thereof, and to what vaUie and amount now re- main undisposed of, and what are become thereof? Whether or no were any and wliat sums of money due or owing to the said D. W. at the time of his death ? If yea, set forth a full, true, and particular account of all and every such sums, and from whom, and for what the same were respectively due. And whether, on anj', and what, securities or security, and whether carrying interest or not, and at what rate, and how much was due for interest thereof respectively at the time of his death ; and also a full, true, and just account of all and every sums and sum of money from time to time re- ceived by, or by the order of, or for the use of you, or either of you, in or towards discharge of such debts, or either of them, or the interest thereof, or of any of them since the death of the said D. W. and when, and by whom, and for whose use, and for what, all and every such sums were respectively received ; and what sums or sum of money still remain due in respect thereof, or of the interest thereof, or of any of them, and from whom, and why such sums have not been gotten in and received, and where the persons from whom the same are respectively due live and reside ; and whether the same, or any and which of them, are, or are reputed to be, respectively separate and apart ; set forth all the matters aforesaid, according to the best of your re- spective knowledge, remembrance, information, and belief. Whether or no was the said D. W., at the time of his death, indebted to any, and what persons or person in any and what sums or sum of money ? If yea. set forth a particular account of all and every the debts whatsoever which were then justly due and owing from him, and to whom, and for what, and on what security, (if any) the same were respectively due : and whether any, and what sums or sum of money have or hath been since paid by you in or towards discharoe of all or any, and which of such debts, and when, and to whom, and for what; and whether any, and what sums or sum of money do or doth now remain unpaid on account thereof. Wljetlier or no were any and what sums or sum of money paid and disbursed by you, for 510 IMEKKULiATORlES. charges paid hy executors. Another form. As to the leasehold pro- perty and stock in trade. or on account of the funeral expenses and debts of the said Testator, or otherwise, in relation to his estate, and when, and by whom, and to whom, and for what were all and every such respectively paid ? Set fortli, &c. Whether or no, as you know, or for any and what reason believe, was any and what part of the per- sonal estate of the said Testator possessed and re- ceived by I. B. in the pleadings in this cause named, in his life-time, or by E. IJ. W. H. and G. B. the executrix and executors of the said I. B. after his death ; or did the said I. B. or the said E. B. W. H. and G. B. make any and what payments in respect of the funeral expenses and debts of the said Testator I. L. or other- wise, in relation to his estate, and when, and to whom, and lor what were all and every such payments made ? Whether or no was the said Testator, at the time of his death possessed of or entitled to any leasehold pro- perty? If yea, set forth the particulars of which the same consisted, and where the same and every part thereof was situate, and from whom, and for what term or terms of years, and under what yearly or other rent or rents the same and every part thereof was at the death of the Testator, and at what rent or rents j and whether any and what sums or sum of money have been received by you, or either of you, in respect of such rent or rents, and when, and from whom, and for what rent respectively; and whether or no, have you, or either and which of you, sold <»ny part of the said Tes- tator's leasehold property ? And if yea, when, and to whom, and for what was tiie same sold, and what sum or sums of money have been received by you, or either and which of you, in respect of such sale, and when, and from whom, and for what were such sums or sum received, and what novv- remains due in respect of sucli sale, and why the same is outstanding and unpaid. And set forth also a full, true, and particular account of the stock in trade which the said Testator was possessed of, or entitled to, at his death, of what the same and every part thereof consisted, and what at the said Testator's death was the full and true value of each and every part thereof. vVnd set forth also a full, true, and parti- cular arrouut of the monies produced by the sale of INTERROGATORIES. 511 such stock in trade, antl when, and to whom, and for what the same and every part thereof was sold, or what became thereof. Set forth all and every, &c. Inquiry as to personal Estate and Money arising by Rents and Sate of real Estate, since swearing Answers. Hath not some, and what part of the personal estate and effects of H. R. esq. deceased, the Testator in the pleadings in thi.s cause named, or of the produce of such personal estate, or of the money arising by sale of his real estate, or any part thereof, or in respect of the rents or profits of his real estate, or of any part thereof, been possessed or received by^ or come to the hands of you, or one and which of you, since the respective times of your respective swearing to your respective answers to the plaintiff's bill in this cause r Set forth a full, true, and just account of all and singular such personal estate, and the produce thereof, which hath been so possessed or received by you respectively, or by your respective, or for your respective use, or come to your respective hands since the time of swearing your said respective answers, and the natures, kinds qualities, and quan- tities, and the full, real, and true value of all and every of such particulars, and when and by whom, and to whom all and every, or any and wliich of such particulars have been sold or disposed of; and whe- ther any and what part thereof remains undisposed, and what are become thereof? Hath any and what part of the personal estate of the said Testator H. R., Wiiich remained undisposed of at the time of swear- ing your said respective answers, been since sold or disposed of, and when, and by, and to whom, and for how much, and whether for the full value tliereof, or how much under the full value thereof respectively, and vvh^t sums or sum of money have or hath been received for the same, and when and by whom, and for whose use ? Set forth all and every the matters and things aforesaid, according to the best of your respective know- ledge, remembrance and belief. Set forth also a full, true, and just account of all and pvcr^ the sums and sum of money, which have or hath 512 INTERROGATORIES. been from time to time received by you, or either of you, or by any persons or person by the order, or for the use of you, or either of you, since the swearing of your said respective answers, for or in respect of the produce or money arising by sale of the real estate of the said Testator, or any part thereof, or the rents or profits of such real estate, or any part thereof, and when, and by, and for what, and on what account all and every such sums were respectively received. S^t forth, &c. Interrogatories as to the Profits and produce of an Estate in the West Indies in Moitgage. Between W. D. Q., and J. G. - Plaintiffs, and VV. B., W. A., J. J., G. B., and W. L. - - - - Defendants. Interrogatories exhibited by Plaintiffs, and the De- fendants J. J., and W. L. before sir W. W. bart, one, &:c. (usual title.) 1st. Interrogatory. Is there or not any sum of money due and owing to you, for principal or interest on the mortgages in the pleadings in this cause mentioned, and in the decree in this cause particularly specified ? If yea, set forth how much is due to you for principal, and how much for interest, and the particulars thereof re- spectively, and how you make out or compute the same. Set forth the matters in this interrogatory inquired after according to the best of your knowledge, remembrance, information, and belief; distinguish whether you set forth the same from your own knowledge, or from any and what written book, document, or account, or from the information of any other person or persons, and if from the information of any other person or persons, set forth the name or names of such person or persons, and the time when you received such information ; and if, according to your belief only, set forth how and from whom, in what manner, and when you received the in- formation on which you form your belief, and all the grounds and reasons for such your belief, fully and at large. INTERROGATORIES, Ola 2d. Have you laid out or expended any sum or suras of money in necessary repairs, or lasting improvements upon the estates and premises in the island of J. com- prised in the indentures of mortgage in the decree in this cause particularly mentioned ? If yea, set forth what sum or sums of money was so laid out or expended, and for what repairs or lasting improvements, and when, where, by whom, and to whom particularly, such sum or sums of money, and every of them respec- tively, was or were paid, laid out or expended ; and set forth and distinguish how much of such sum and sums of money have or hath been laid out or expended in necessary repairs, and how much in lasting improve- ments ; set forth the matters in this interrogatory in- quired of you, according to the best of your know- ledge, remembrance, information, and belief; distinguish whether you set forth the same from your own know- ledge or from any and what written book, document, or account, or from the information of any other per- son or persons ; and if from the information of any other person or persons, set forth the name or names of such person and persons, and the time when you received such information, and il^ according to your belief only, set forth how, and from whom, and in what manner, and when you received the information on which you form your belief, and all the grounds and reasons for such your belief, fully and at large. 3d. Set forth a full, true, and particular account of the rents produce and profits of the estates and premises, comprised in the mortgages in the decree in this cause mentioned, received by you, or by any other jjerson or persons, by your order, or for your use, or which, with- out your wiltul default, might have been received there- out, and when, where, and what time and times res- pectively, and by whom, and from whom respectively such rents, produce and ])rofits, and every pari thereof, have and hath, and might have been received, and why, and for what reason or reasons any and what part and parts of such rents, produce, and profits, have or hath -not been received ; set forth the matters in this interro- gatory inquired of you, according to the best and utmost of your knowledge, remembrance, information, and be- lief. Distinguish, &c. (as hefnre.) 66 514 INTERROGATORIES. 4th. Whether or no did you, or any person, for your use, or on your account, under color of the writ of assistance in the decree in this cause mentioned, enter upon and take possession of any estates and premises, the property of, or belonging to the Plaintifl's, or those under whom they claim, which were not comprised in the said several mortgages in the said decree mentioned, or any or either of them ? If yea, set forth what estate or estates, or premises, you, or any person for your use, or on your account, so took possession, and tlie nature, quantity, and quality thereof, and the particulars there- of, and every part and parts thereof? And also set forth a full, true, and particular account of the rents, pro- duce, issues, and profits of the said estates and pre- mises, in this interrogatory inquired after, received by you, or by any other person or persons, by your order, or for your use, or which, without your wilful default, might have been received thereout , and distinguish the same from the rents and profits of the estates and pre- mises comprised in the said several mortgages, and set forth when, and at what time and times particularly, and by whom such rents, produce, issues, and profits, as by this interrogatory are inquired after, have or hath been, or might have been received, and wliy, and lor what reason or reasons, any and what part and parts of such rents, produce, issues, and profits, have or hath not been received. Set forth the matters, cVc. Dis- tinguish, &c. C)th. Have yoa expended any sum or sums of money ill lasting improvements, upon the estates and premises in the preceding interrogatory inquired after, being the estates and premises not comprised in the mortgages in the decree in this cause mentioned ? If yea, set forth Avhat sum or sums of money you so expended, and tor what lasting improvements, and when, where, by whom, and to whom particularly such sum or simis of money, and every of them respectively, was or were paid, laid out or expended. Set forth the matters, &c. Dis- tinguish, Ssc. 6lh. Has it not been the constant and invariable usage for your agents or managers of your estates in the West Indies, to transmit accounts every year, or at any aiid what other stated or uncertain periods, of all the INTERROGATORIES. 516 sugars, rum, and other produce, arising from the estates in the pleadings in this cause mentioned, and how the same have l)een disposed of? Were not such books an- nually, or at some and what other stated or uncertain periods, examined, and the accounts therein contained, signed, or allowed by you, as settled accounts, or by some and what person or persons duly, or in some and what manner authorized by you, to settle, and sign such accounts, or to act on your behalf? Do not such ac- counts contain an account of all the produce arising from the estates in the pleadings mentioned, and how the same, from time to time, have been disposed of for the whole of the time since the same were taken pos- session of under the writ of assistance, to the present time, or for any and what part of such lime; and if not lor the whole of such period, set forth from what time the accounts of the produce of the estates in question In this cause, have been omitted to be included in the accounts returned to you or your agents in England, of the produce of your other estates in the Vv'^est Indies, and why, and for what reason, the same were so omit- ted. Have all and each, and every of such signed ac- counts, been produced and left with the Master, to whom this cause stands rcferreil ; and if not, why ? Answer fully and distinctly the several matters inquired after by this interrogatory. vVnd distinguish, Sec. 7th, Set forth a true and accurate account of the names of the managers of the estates in the pleadings mentioned, in the West Indies, of the consignee or consignees of the produce thereof in England, from the time the same were taken possession of as aforesaid, to the present time, and from what time to what time each and every of such persons were manager or ma- nagers, or consignee or consignees. Set forth the par- ticulars inquired after by interrogatory, according to the best of your knowledge, information, and belief. 8th. What number of negroes or slaves were there on the estates in the pleadings in this cause mentioned, at the time you took possession thereof, under the writ of assistance, in the said pleadings mentioned ? Set forth a list or schedule thereof, with the names of each and every of such negroes or slaves, and of the issue and increase thereof existing at the time, or singe pro^ 516 tNTERROUATORlES. duced after you had so taken] possession of the saij estates. Were, or were not some, and which of such negroes or slaves, removed, at some and what time or times, oft' and from the said estates, to some and what other estates belonging to you in Jamaica, or to some and what otlier place or places ? If yea, which of such slaves were so removed ? Set forth the parti- culars and names of such slaves which were so re- moved, and of the issue and increase thereof, and when they were respectively so removed, and what became of them; and how were they, and each and every of them, and their issue and increase disposed of? Were any and which of such negroes, or of the issue and increase thereof sold, and when, and to whom, and for what price or prices ? Set forth, &c. Interrogatories to examine Mortgages in Possession, as to Receipt of Rents. Between, &c. Interrogatories exhibited, &c. (before the Master.) 1st. Interrogatory. Whether or no is there any, and what sum or sums of money due and owing to you, or any or either, and which of you, for principal or interest on the mortgaged premises, in the pleadings in this cause mentioned ? If yea, set forth how nmch is due for principal, and how much for interest, and the particu- lars liiereof respectively, and how you make out 6r compute the same. Set Ibrth, &:c. 2d. Have you, or either and which of you, or any other person or persons, and whom, by your or either and which of your order, or for your or either, and which of your use, been for any time, and how long, in possession or receipt of the rents and profits of the said mortgaged premises, or of any and what part thereof? If yea, set forth a full, true, and just rental and parti- cular thereof, and where the same, and every part there- of, is situate, and the yearly value of each particular thereof, and in wiiose tenure and occupation the same, and ev(;ry part, is and hath been dining the time of such possession, and under what yearly or other rent or rents. And set fortji also a full, true, and particular INTERROGATORIES. 517 account of all and every sum and sums of money whicli hath and have been received, or but for your, or some, or one and which of your wilful default and neglect, might have been received by you, or some or one, and which of you, or by any other person or persons, and whom, by your, or some or one, and which of your order, or for your, or some or one, and which of your use, for or in respect of the rents and profits of the said mortgaged premises, or any part thereof, and when and by whom, and from whom, and for what rent, and of what part of the said mortgaged premises, and when due, all and every such sums were respectively received, or might have been received. Set forth, &c. Interrogatories to prove that Crop rvas on Plantation at the Time of Sale ; whether free from Incumbrances ; as to Security Mortgagee had ; and to what he resorted for Payment of his Money. To prove 1st. Interrogatory. Whether or no, on the sale of the that crop tvas plantation and estate by you to H. G. for which the said on plantation, sum of £ was the consideration or purchase-money, and what has was the crop then on the said plantation or estate, or become thereof, any and what part thereof comprised in the said sale, and in the said purchase-money of c£ ? If yea, whe- ther or no have, or has any person or persons, and whom, applied or converted any, and what part of the crop so sold to your use, and when, and to what amount, as you, for any and w'hat reason, know or believe ? As to incian- 2d. Whether or no have you, in pursuance of tiie hrances on agreement or articles of sale, between you and the said plantation, and H. G. made the said plantation and other premises com- to whom due. prised in such agreement or articles, free and clear of and from all estates, rights royal, and otiier duties, par- ticularly the duties, if any, payable to the king of Den- mark, in respect of the said plantation and premises, on the sale and transfer thereof, or otherwise, howsoever, and of and from all other duties, claims, and incum- brances ; do the said plantation and other premises, or any and which of them, now remain subject, or liable to, contrary to the effect of the said agreement .^ 518 IKTEUROGATORIES. ^s to the se- 3d. Whether or no had you any security or securities citrity you had for the payment of the said principal sum of £ , and besides bond of the interest thereon, or any part thereof, other than the viortgagc. said bond of the said Testator, T. B. and the covenant of the said H. G,, and the mortgage or security of the said plantation or estate ? If yea, set forth the particu- lars of all and every such securities, and the value and amount thereof, and what is now due thereon, and from whom respectively. To prove 4th. Whether or no have you, in any and what manner, ivhat security and when, resorted for payment of any and what part mortgagee re- of the said sum of ^ , and the interest thereof, or nortcd to for of any and what part thereof, to any and what other se- payment of his curity, upon the said bond of tiie said Testator, T. B. ? money. and if not, why ; and whether, if you had used due and reasonable diligence, could not the payment of some and what part of the said principal sum of £ or some and wliat part of the interest thereof, have been in some, and what manner enforced, from some and ".\ hich other of vour securities other than the said bond ? I Hi LI rogatories exhibited hij Creditors, before the Master^ concerning a Bond, ^-c. Interrogatories exhibited on behalf of W, T. and , who claim to be creditors of the said De- fendant, before S. T. esq. one, &c. to whom this cause stands relVrred, for the examination of W. L. for the proof of their debt, pursuant, &c. i'o jtrore lite 1st. Interrogatory. Whether or no have you at any cxisteiue of the time, and when, and for how long, had in your custody, possession, or power, or have you at any time or times, and when respectively, seen, in the custody, possession, or power of any otlier person or persons, and whom, a bond or obligation in writing, executed, or purporting to be executed, by the present marquis of D. by his tiien name of earl of B. of the date and in the words and figures, or to the purport and effect hereinafter set forth, or any other. ?ind what bond, executed, or pur- porting to be executed by the said marquis of D. by his then name of earl of B. to J. F. T. the wife of bond. INTERROGATORIES. 519 To prove tliat the same came into Mr. Z/.'.s possession, and what hath become thereof. To prove that the bond was executed, hi/ lord D.J and to learn who was the attest- ing witness, and by whom the bond was Jilkd 7ip. To prove that Mrs. T. gave no autho- ritif to receive, the bond. To prove ac- knoioledgmen fs prohabhf made W. T. of M. by her then name of C. of any other, and what date, or in any other and what words and fignres, or to any other, and what purport and effect ? (Set forth bond.) 2d. Whether, and from whom, and upon what occa- sion, did yon receive such bond or obligation, if the same hath ever been in your custody, power, or possession, and what is become of tiie said bond, and where is the same now, or was when you last knew thereof, and to whom, and when, and upon what occasion, did you give op the custody, possession, or power of the said bond ? Or if the said bond hath never been in your cus- tody, possession, or power, then upon what occasion or occasions did you see the same in the custody, pos- session, or power of any other person or persons, and what is now become thereof, as you know, or for an\- and wliat reason believe ? 3d. Are you acquainted with the character of the hand- writing of the said marquis of D., and have you ever seen the said marquis write, or by what other means did yon become acquainted with the character of his hand- writing ; and whether or no do you believe that the name " B.," set and subscribed to the said bond or obliga- tion was of the proper hand-writing of the said mar- quis, or if not, why ; and whether or no was the name of any attesting witness, and whom, set and subscribed to the said bond j and are you, by any, and what means, acquainted with the character of the hand-writing of such attesting witness, and was such name of his proper hand-writing ; and is such attesting witness now living or dead ; iand when did he die ? And do you know of whose hand-writing was the body and condition of the said bond ? 4th. Whether or no was any instrument, or other au- thority, produced to you, whereby the said Mrs. T. the obligee in the said bond, authorized and empowered any other person, and whom to receive the moncv due on the said bond, or otherwise to discharge the same ? If yea, set forth the particulars of such instrument, oi other authority, and what hath become thereof. 5th. Whether or no have you at any time or times, anci when, and upon what occasion or occasions, had any con- versation with the said marquis of D. upon the subject 520 INTERROGATORIES. hy lord D., that he gave the bond for Mrs, T.'s use. 7b prove letters. of the said bond, or have you at any time or times, and when, and upon what occasion or occasions, heard the said marquis of D. speak of the said bond ; and whether or no did the said marquis of D., upon such occasion or occasions, acknowledge or admit that he gave the said bond for the proper use and benefit of the said Mrs. T. or how otherwise ? 6th. Look upon the letters or paper-writings now produced, &c. Of whose hand-wrilings are the said letters, or the signatures or superscriptions thereto re- spectively, as you, for any and what reason, know or believe ? Inierrogaiories as io the Estate and Effects of a Testator .ween A. B. . . Complainant, and CD. . . Defendant. Testator. Interrogatories exhibited on behalf of the said Complainant, before El. F. esq. one of the Masters, &c. to whom this cause stands re- ferred, for the examination of the Defendant, ant. Sec. pursuant. Sec. As to person- 1st. Interrogator^^ Whether or no was J. B., the Tes- al estate and tator in the pleadings of this cause named at the time of effects executed, his death, possessed of, entitled to, or interested in any Debts due to and what goods, chattels, personal estate, and effects ? If yea, set forth a full, true, and just inventory and account thereof, and of every part thereof, and of all the particu- lars whereof the same consisted, and the quantities, qua- lities, full, real, and true valuations of all such particu- lars ; and whether all. or some, and which of such par- ticulars, have not, and when, been possessed or received by, or come to the hands of you, or one and which of vou, or of some and what persons or person, by the order, or for the use of you, or one and which of you, and how, and in what manner, and when and whei'e, and by and to whom, and for how much have the same, and every, or any and what part thereof, been sold or disposed of, and whether any and what parts thereof, and to what value and amount, now remain undisposed INTERROGATORIES. 621 of, and what are become thereof? Set forth all the matters aforesaid, according to the best of your respec- tive knowledge, remembrance, information, and belief. As to debts 2d. Whether or no were any, and what sums of due to Testator, money due or owing to the said Testator J. B. at the time of his death ? If yea, set forth a full, true, and par- ticular account of all and every such sums, and from whom, and for what the same were respectively due ? And whether on any, and what securities or security, and whether carrying interest or not, and at what rate, and how much was due for interest thereof respectively, at the time of his death ; and also a full, true, and just account of all and every sums and sum of money from time to time received by, or by the ordei-, or for the use of you, or either and which of you, in or to- wards the discharge of such debts, or either of them, or the interest thereof, or of any of them, since the death of the said J. B. and when and by whom, and for whose, and for what, all and every such sums were re- spectively received, and what sums or sum of money still remain due in respect thereof, or of the interest thereof, or of any of them, and from whom ; and why such sums have not been gotten in and received, and where the persons from whom the same are respectively due, live and reside ; and whether the same, or any and which, are reputed to be respectively separate or apart ? Set forth, &c. As to debts 3d. Whether or no was the said Testator, J. B., at difo. the time of his death, indebted to any and what persons or person, in any and what sums or sum of money ? If yea, set forth a particular accoimt of all and every the debts whatsoever, which were then justly due and ow- ing from him, and to whom, and for what, and on what security, if any, the same were respectively due, and whether carrying interest or not, and at what rate, and how much was due for interest thereof respectively, at the time of his death ; and whether any and what sums or sum of money have or hath been since paid by you, or any or either, and which of you, in or towards dis- charge of all or any, and which of such debts, and when and to whom, and for what, and whether any and what sums or sum of money do, or doth now remain unpaid on account thereof? And set forth also a full 67 522 INTERROGATORIES. and particular account of all and every other tlie sums or sum of money which have been, from time to time, really and actually paid by you, or any or either, and which of you, for or on account of the funefal expenses of the said Testator, J. B., or otherwise, in relation to his estate, since his death, and when and by whom, and to whom, and for what all and every such sums were respectively paid ? Set forth, &c. As to free- 4th. Whether or no was the said Testator, J. B., at hold and copy- the time of his death, seised or otherwise, and how en- hold estates, titled to any, and what freehold and copyhold estates ? and the rents If yea, set forth a full, true, and just rental, description, and profits and particular thereof, and the number of acres thereof, thereof. respectively, and where the same, and every part thereof, is situate, and the yearly values of each particular thereof, and in whose tenure or occupation the same, and every part thereof, then was, or since has been, and now is, respectively, and under what leases or terms, if any, and at what yearly, or other rent or rents ? And set forth also whether any and which of such estates, or any and what part thereof, have, since the death of the said Testator, J. B., been sold and disposed of, and when and where, and by and to whom, and for how much, every particular thereof hath been sold and disposed of, and whether at the full and utmost value thereof; and U not, why ; and how and in what manner the money arising from the same hath been paid and applied ? And set forth also a full, true, and particular account of all and every sum and sums of money wliich hath, and have been, ivm time to time, received by you, or any or either, and which of you, by any other person or per- sons, by your, or aiiy or either, and which of your or- der, or for your or any, or either and wliich of your use, for or in respect of the rents and profits of the said freehold and copyhold estates, and every, or any part thereof, which were due and owing at the death of the said Testator, or have since become due, and when and by whom, and from whom, and for what all and every such sum and sums were respectively received ? And whether any, and which of such rents and profits are •now in arrear ; and if so, why ? As to what 5th. Whether or no have you been paid, or in any man- money received ner satisfied any part of the principal money of £ INTERROGATORIES. 525 for principal mentioned in the bond or obligation of T. B., the said and interest on Testator, bearing date, &c. or any part of the interest hond. which hath accrued due thereon ? If yea, set forth the particulars and amount of all and every sums or sum which you have been so paid or satisfied, and when respectively, and by whom, and in what manner. To prove the Identity of a Person under a Marriage Settlement, To prove hirtJt and baptism. To prove re- gister of bap- tism. To prove inar- riage settle- ment. Toprovc deed or bond. Between A. W. Plainti(i^ and 1st. 2d. when. C. M Defendant. Interrogatories, &c. [Knowledge of the parties.] Do you know, and from what circumstances, and where the said Complainant A. W. was born and baptized? If yea, set forth the time and place of her birth and baptism, and the reason of your knowledge therein, and who were her father and mo- ther, and where they usually resided at the respective times of the birth and baptism of the said Complain- ant, and what was their situation in life. Set forth, &c. 3d. Look upon the paper-writing now produced, &c. Did you at any time, and when, and where, carefully examine the same with any entry thereof made in the register book of any, and what parish or place ? If yea, whether or no is the same a true copy of such entry ? Declare, &c. 4th. Look upon the deed or writing now produced, &c. Whether or no was such deed or writing at any time, and when, signed, sealed, or delivered, in your presence, by any person or persons, and whom ? And were you a subscribing witness to the signing, sealing, or delivery thereof, by such person or persons ? And is your name, indorsed and set as a subscribing Ivitness thereto, of your proper hand-writing ? Declare, &c. 5tli. Look upon the bond or paper-writing now pro- duced, &c. Whether or no was the said produced writing at any time, and when, signed, sealed, and de- livered, or in any and what manner executed by any 524 IxNTERROGATORIES. person, and whom, in your presence ? And is your name, set and subscribed as a witness thereto, of your proper hand-writing ; or whether or no were you ac- quainted with any |)erson or persons whose name or names appear to be set or subscribed to the said bond or paper-writing as a witness or witnesses thereto ? And did you ever see such person or persons write, or were you by any, and wliat other means acquainted with tlie character or manner of hand-writing of such person or persons ? And is or are the name or names of such person or persons, so set and subscribed to the said bond or paper-wriliiiq', of his, her, or their proper hand-writing? And whetlior or no is or arc such person or persons now living or dead ? And if dead, when, or where did he, slie, or they die, as for any, and wliat reason, know or bcHeve ? Set forth, &c. Lastly, [The general and usual interrogatory.] To prove ivhat Issue are alive, and what Estate the Tes- tator had. In the Exchequer. Between, &c. Interrogatories exhibited, &c. 1st. Interrogatory. Whether or no did you know S. J., the nephew of the Testator W. C, in the plead- ings of this cause named, and for how long did you know him, and was he living or dead at the time of the death of the said Testator ? And if dead, when, and where did he die, as you know or beheve ? Declare, &c. 2d. Whether or no do you know, and for how long have you known the Defendant J. P. the sister of the said Testator W. G. and her family ? Whether or no were there any, and what children of the said Defen- dant J. P. living at the lime of the death of the said Testator; and when did the said Testator die, and which of such children are now living, and what are their respective ages, and if any, or either of them has died since the Testator, and when did he, she, or they die? Declare, &:c. 3d. Whether or no was the said Testator W. G., at the lime of making his will, in the pleadings of this INTERROGATORJES. 525 cause set forth, or at his death, seised of, or otherwise entitled to, or interested in any, and what freehold estates? If yea, set forth a full, true, and just descrip- tion and particular of all and every such freehold es- tates, and what interest he had therein respectively, dis- tinguishing such of theuj, if any, as he acquired after the making of his aforesaid will. 4th. What interest had the said Testator, at the time of his death, in the messuage or dwelling-house de- scribed, in his will, to he situate in M. street, within the village of, &c. ? (set forth the particulars at large.) 5th. What Interest had the said Testator, at the time of his death, in the messuage or dwelling-house, with the field and appurtenances in, &c. described in his said will to be in his own tenure ? Set forth, &c. Observations. — I should have thought that the remembrancer would have permitted these several facts to be ascertained by affidavits, which would be infinitely less expensive, and more expeditious, than a proceeding by interrogatories and commission. It will be the office of the Defendants to file the interrogatories for the examination of the Plaintiff as to the personal estate of the Testator, Interrogatories to prove the Delivery of a Notice. Interrogatories to witnesses, &c. wherein G. C. is Complainant, and T. D. J. A. and S. his wife, &c. &c. are - - Defendants. On thp part and behalf of the Complainant, as follows : 1st. [Knowledge of the parties.] To prove Mr. 2d. Look upon the paper-writing now produced, and R.\ letter of, shewn to you, at this the time of your examination, mark- ^f'' ed with the letter A. Of whose hand-writing is the said paper-writing, and the name R. R. set and subscribed thereto, and the superscription or direction thereof, as you know, or for any, and what reason, believe, who acted as the soUcitor or solicitors of the said Com- plainant, with respect to the purchasers in the said bill of complaint ; and whether or no did the said R. R. in any, and what manner, act with respect to the said ' purchases, on the part and behalf of any, and which of the said Defendants ? Declare, &c. 526 l.NTEHUOGATORIES. 7() proi't tut ;;il. Look upon tlio papor-wriliiig now produced, iVt. notice ^ren. B. Of whose hand-writing is the said paper-writing, and tlic signature tliereto, and the superscription thereof? Whetlier or no was the said paper-writing sent to the said Complainant, or any person, and whom, on his beiiair, at any time, and when, by you or by your direction ? And whether or no was you eniph^yed as the solicitor or attorney of" the said Delendants R. K. and C. his wile, and R. W. or any, or either or which of tiiem, in the matter ot' the purchases made by the said Complainant, and in the said bill mentioned ? De- clare, «S.'C. Lastly. [The usual one.] Jiiunugatoiie6 to prove what passed at the Purchase of an Estate. liilonogatorios to be administered to witnesses to be produced, sworn, and examined, in a certain cause depending in the High Court of Chancery, wherein J. E. is - Complainant, and r. II. is Defendant. On liie |>art and behalf of the Complainant as follows : Isl. Interrogatory. Do you know the parties, Com- plainant and Defendant, in the title of these interroga- tories named, or either, anil wliicli of them respectively ? Declare the truth, and your knowledge herein. 2i\. Whether or no were you, at any time or times, and when, previous to the agreement between the said Complainant and the said Defendant, respecting the purcliase, by the said Defendant, of the house and pre- mises of the said Com|)lainant at , pre- sent at any conversation or conversations which passed between the said Complainant and the said Defendant, upon the treaty for the said purchase ? If yea, set forth the particulars of such conversations, and what was said tlicrein by the said Complainant to the sailainant any projiosal, on his part, as to his being re- leased from the said agreement ? If yea, set forth the particulars of such proposal, and when, and upon what occasion the said Delendant made the same ? Set forth, «Vc. Lastly. Do you know of any other matter or thing, or have you heard, or can you say any thing touching the matters in (pieslioii in this rase-, that may tend to tli- ney paid by the said purcjiasers or purchaser of the said messuage, or teneracni, and premises, as in the INTERROGATORIES. 531 said preceding interrogatory is mentioned and inquired after, the full or utmost price or value thereof, or was or not the same, and for what reason less, and by how much less than tlie full value tiiereof, in case a good title could have been made thereto, to such purchasers or purchaser ; were or not the same purchased for some, and what sum of money less than the real and full value thereof, on account of some and what defect in the title of the vendors or vendor thereof, and who by name, in the title thereto or therein, or was or not some and what deduction or allowance made out of the purchase-money for the same, or such or some and what other account ? Declare, itc. 7th. Whether or no did you ever, and when, on any and what occasion, hear the said Def^endants, or any and which of them, say or declare any thing and what, touching or concerning their, or any and which of their right or title to the aforesaid messuage, or tenement, and premises, or any and what part thereof, or any de- fect therein, or touching or concerning the right, title, interest or claim, of any and what other porsons or per- son, and who by name, thereto or therein ? Set forth all and every the particulars, and when and where, and before whom, or in whose presence or hearing, and upon what occasion the same or any of them were or was made. Had you or not ever, and when, any and what conversation with the said Defendants, or any and which of them, touching their, or any and which of their right or title to the aforesaid, premises, or any and what part thereof? Declare, &rG. 8th. Wiiether or no are you the master or keeper of any and what office or place in which the records of fmes suffered of estates or lands situate, &:c. } If yea, for how long have you acted or been employed therein, and are or not, and have or not such records, or any and which of them been, for any and how long lime in your custody or possession ? Whether or no were any and which of such records, and from and to what time in |>articular, and when and about what lime lost, or in any and what manner destroyed ? Il yea, have or not you any and what reason to know or ascertain, what particular records or record of fines, were or was upon such occasion lost or destroyed, and w ere or was or not any indentures or record of any 532 iNTEJlKOGAlORlKfc. lines or fine, levied by any and what jjersons or person, and who byname, of the messuage, or tenement, and premises hereinbefore mentioned and inquired after, •upon such or any and what occasion lost or destroyed, as you know, or for any and what reason believe? Declare, tSrc. Lastly. [Usual interrogatory.] Interrogatories respecting the Purchase of Estates, and as to Objections on the Title. To prove the 1st. Interrogator}'. Look upon the printed paper, pnvted parti' or particular of sale now produced, &c. whether or cular hy the ex- no was you at aii}^ time, and when, employed by any amination of person or persons, and whom, to sell the said estates the auctioneer, and premises, in the said particular described, and whether or no was the said particular printed and published by your order, or by whose order, as you know, or for any and what reason believe ? Declare, &c. To prove the 2d. Whether or no were you at any time, and when, estimated value employed by to estimate the value of the estate of land hy the and premises described in the printed particular of sale examination of marked A, now produced, &-c. ? If yea, did you the surveyor. form your estimate of the value from any actual survey and admeasurement, or from any and what other in- formation, respecting the quantity of lands to be sold, and in particular in forming such valuations ? At what quantity did you compute certain lands, part of the said estate called the and whetlier or no should you, in any and what manner, have reduced the estimate of the value of such estate and premises, if you had known that the said lands, called the contained a less number of acres than they were so computed at by you ? To prove de- 3d. Whether or no did you, at any lime, and when, as livery of ah- the solicitor of the said Complainants, deliver to the said 8tract. Defendants, or to any person, and whom, on his part, any abstract of the title of the said Complainants lo the estate and premises, in the pleadings mentioned ? Whether or no did the said Defendant, or any person, and whom, on his part, at any time, or times, and when, and how, make lo you any, and what objec- tions to the said title, and what answer did you there- INTERROGATORIES. 533 u[)on make, and if by writing, set forth the same in llic words and figures thereof, and what afterwards passed between you and the said Defendant, or any other person, and whom, on his part, respecting tlie said title, or tiie agreement of purchase in tlie pleadings mentioned ? Set forth, &c. To prove the 4th. Whether or no did you ever, and when, and by aitual qunntity whose employment, make a survey and admeasurement hy admeasure- of certain lands, called the S., situate in the parish ment. of C, in the county of ? If yea, of what num- ber of acres do the said lands consist ? Declare, &;c. To prove that oth. Whether or no had you, at any time, and when, the objections previous to the making of the agreement of the , were made at in the pleadings in this^ cause stated, and upon what the time of the occasion, any and what commimiration with the said agreement. Plaintifl', as to the title of the said Defendant to the premises comprised in the said agreement ? And did the said Plaintiff at anytime, and when, and ujion what occasion, previous to the making of the aforesaid agreement, state to the said Defendant, or to you, or to any other person, and whom, as the solicitor or agent of the said Defendant, that there existed any, and what objections to the title of the said Defendant to the said premises ; and in particular any, and what objections, by reason that one R. B. had not j,oined in the conveyance of the said premises to the said Defen- dant, or any, and what objections, by reason that one A. S. claimed to have some right or interest in tiie said premises, and for what purpose did the said Plain- tiff state the said objections to the title of the said De- fendant to the premises ; and had the said objections any, and what effect as to the price which the said Defendant agreed to accept from the said Plaintiff for the said premises ? Declare, &c. Interrogatories to prove an Assignment, made previous to Bunkrupicy, was fraudulent. Interrogatories to be exhibited, Sec. wherein AV. R. and J. P., assignees of the estate and effects of E. T,, a bankrupt, are Complainants, and T. II, is - - - - -. - . Defendant. ^^34 INTERROGATORIES. On the part and behalf of the Complainant, as follows : 1st. [Knowledge of parties.] 2d. Had you at any time, and when first, und where, and in whose presence, any conversation with the Defendant respecting the affairs of E. T. the bank- rupt, in the pleadings of this cause nanxed ? If yea, set forth upon what occasion such conversation took place, and the particulars of such conversation, and what was said thereon by the said Defendant, or by you, or any other person or persons, to or in the presence or hearing of the said Defendant respecting the affairs of the said E. T. ; and was any, and what agreement then come to by you, on the part of the said E. T., with the said Defendant, respecting the as- signment of any, and what leases ; or w as any thing, and what, then said by the said Defendant, or by you, or any other person, and whom, to the said De- fendant, or in bis hearing, respecting any such assign- ment ? And did you then inform the said Defendant that the said E. T. was in insolvent circumstances, or did any thing, and what, pass as to the insolvency of the said E. T., or as to any, and what composition being made or proposed to his creditors, or as to the said Defendant's guaranteeing such coniposition ? Set forth, id T. B. - Wa' oi' v.-as 536 liNTtKRGGAXOillLS. uut the said brokage business profilablc in any, and hov many of the years during which you were in partner- ship with the said T. B. ? From what, and in what manner did the profits of snch brokage business arise? Was or was not any, and what part or share of the profits of such brokage business, at any time, and when, during the continuance of tlie said |)artnership between you and the said G. P. anil T. 1?., paid or allowed to the said T. li. ; or did he, or did he not, derive any, and what benefit or advantage tlierefrom ? '2d. By whom were the books of account of the said partnership kept during the contin:iance thereof? Des- cribe particularly the several books of account which were so kept of the business in which you were so con- cerned, either jointly with the said G. P. and T. B.. or with the said G. P. only ? By what names or de- scriptions were such books respectively called or known ? Were or were not the accounts of the said brokage business included in all, or any, and which of such books, together with the accounts of the mercantile business ? And if so, for what reason were the accounts of the said two businesses included in the same books ? In what manner were the prolits of the mercantile business respectively carried to account in such books, or any of them ? In the manner in which sucii books were kept, could, or could not, the brokage accounts be distinguished fiom the oilier accounts in the said books, or the profits of the brokage business be sepa- rated iVoni the profits of tlic general business of the said house? 3d. In what manner, and at what porioils, were the balance sheets of the said accounts made up ? Were or wore not snch balance siicets, from time to time, de- livered to the said T. D. ? li' yea, for w hat reason, and for wliat purpose, were such balance sheets made u[> and delivered to the said T. B. ? Did you, or did you not at any time, and when, during the continuance of the said partnership between the said G. P., and T. B., and vourself, consi(Jer the said T. B. entitled to any. and what share or [jroportion of the profits of the said brokage busiin'ss ? And if he, the said T. B., had de- manded any share or proportion of such profits in the INTERROGATORIES. 537 •years when such business was profitable, should you, or should you not, have complied with such demand ? Lastly. Do you know any other matter or thing, not hereinbefore particularly intjuired, which may tend to the benefit or advantage of the said T. B. in this matter ? If yea, set forth the same fully and at large, as if you had been thereunto particularly interrogated. Interrogatories exhibited before Commissioners of Bankrnpt, * as to the Bankrupt and his Estate. Interrogatories exhibited before the commission- ers named and appointed in a commission of bankrupt awarded and issued against J. D. for the examination of T. G. V., of the city of B., merchant, before the said commis- sioners. 1st. [Knowledge of the bankrupt.] 2d. Whether or no did the said J. D., for any, and how long time, before he became a bankrupt, or before a commission of bankrupt was awarded and issued against him, carry on any, and what trade, in or at, &:c. or in or near any, and what other places or place ? What in particular was the nature of such trade? AVas the same in any, and what degree profitable, or other- wise ? Was you, or not, during the whole, or any, and what part of such timf^, and by what means, and in what manner, conversant with the nature and extent of such trade, or the concerns thereof, or the mode or manner in which the same was conducted by the said J. D. and whether or not with the debts and credits, profits and losses thereof? Had you, or not, during the whole, or any, and what part of the lime, and whether or not immediately, and at some, and what time in par- ticular, preceding the issuing of the said commission of bankrupt, the liberty or opportunity of perusing, ex- amining, or inspecting all> or any, and which of the books of accounts, and other, and what books and pa- pers relating of, or concerning the said trade of the ' said bankrupt, or his affairs ? And did you not, from time to time, or at some, and what times, at your own 69 •^38 INTERROGATORIES. will and pleasure, or how otherwise, peruse, examine, or inspect the same, or some, and what part thereof, or for what reason was such examination had or made r Declare, &c. 3d. Whether or no was the said J. D. on or about, &c. indebted to you in any, and what sum of money ? If yea, set forth the exact amount thereof, and how you compute or make out the same. Was or not the said debt, by any, and what means, lessened, &c. at any times or time, and when, between that time and the date of suing forth of said commission ? Declare &c. 4th. In what degree of credit and circumstances was the said J. D. upon or about, &c. ? Were or not his credit and circumstances then good, or were ihey in any, and what degree bad or desperate ? Was he or not then in circumstances unable to pay all the debts due or owing from him as you know, or for any, and what reason believe ? Did you, or not, then conceive that the said J. D. was insolvent, or that he would be- come a bankrupt, or that a commission, &c. would be issued against him ? If yea, what were the grounds, &c. for such belief ? Declare, &e. 5th. Whether or no was any plan ever, and when, previously to the bankruptcy, or the issuing the said commission, formed by you to obtain from said J. D. any sums or sum of money, bills, notes, goods, pro- perty, or effects of the said J. D. to be applied by you in or towards, or in payment of debts then due, &c. from him to you, in preference, or to the prejudice of the rest of J. D.'s creditors ? And did you, or not, at some, and what time or times, and how often, and when in particular, and whether or not, on or about, &c. apply unto the said J. D., on such occasion, or for some such, or the like purpose, or did you, or not, make some, and what representations to the said J. I). relating thereto ? Why, or for what reason, were, or vvas some, or any, ajid which of such acts done, and whether in coiitenipUition or prospect of the bank- ruptcy of said J. D. ? And did you, or not, then know, believe, or suspect, or had you, or not, and by what means, some, and wiiat reason to believe, &c. that the said J. D. was insolvent, or that he was in despe- rate circumstances, or that he would become, or INTERROGATORIES. ^ 539 was in danger of becoming a bankrupt, or that a com- mission, &c. was issued against him ? Did you or not, make some, and what offer, or proposal, promise, or engagement and of what nature, to or witli the said J. D. to induce him to comply with the terms of such offer, &c. and did, or not, J. D. accede thereto or comply with such terms ? Had you, or not, any, and what conversa- tions or conversation with J. D. relating thereto, or upon the subject thereof? Set forth the particulars fully, and circumstantially. Declare, &c. 6th. Whether or no did said J. D. on or about, &c-. pay unto you any, and what sums or sum, or assign unto you any and what debts, &c. due and owing to him, or deliver, unto you any and what bills ? Set forth all such sums and debts, with the particulars thereof, with the natures and values tliereof respectively ; and whether same did not consist of all, or any, and which of the sums, items, articles, or particulars following : viz. &c. For what reason or with what view or de- sign, were or was the same, or any, and which of them, paid, or given, or delivered to you ? And whether or not, for the purpose of decreasing or diminishing your own private or separate debt, in preference, or to the prejudice of the other creditors of J. D. ? And whether or not, pursuant to, or in view of some preconcerted scheme by or between you and said J. D. or one and which of you, did you, or not, then by some, and what means know, or had you not some, and what means of know- ing, or some and what reason to believe, and did you not believe that said J. D. was insolvent, or unable to pay his debts, or in desperate or bad circumstances, or that he would become, or was likely to become, a bank- rupt, or that a commission had issued, or would issue ; and particularly whether it was not agreed, or meant, in- tended, or understood by and between you and J. D. or one and which of you, that a commission, &c. should be taken out upon the petition of you, or of some, and what other person ? Was it not agreed by and between, &c. that the transaction before mentioned and inquired after, should be concealed from all the creditors of J. D. ? If yea, why, and for what reason was the same to be concealed, and whether or not from a knowledge that the transaction was fradulent, or from what other mo- ^ ■ 540 INTERROGATORIES^. tive ? Was it not with some such reason, or for any an Did or not the person who signed the receipt indorsed on the said deed, at or about the time of signing sucii receipt, say or declare any thing and what, concerning his having or not having received or been satisfied with the whole, and what part of the money therein expressed to be paid to him t Declare &c. 668 INTERROGATORIES. To examine as to bound- aries, customs, moduses,^c.8fc. To prove a cdpy of record. To prove copies of the registers, bap- tisms, Sfc. Interrogatory to prove two bonds and as to the circum- stances for which they were executed. I4tli. Whether or no liave you, at any and what time or times, and upon what occasion, received any and what information from any and what ancient person or persons who are, or is now deceased, of or concerning all or any, and which of the matters in this interrogatory inquired after ? If yea, did you, and do you believe such information to be wholly or in any and what respect true or false ? When did such person or persons die, and of what age or ages were or was he or they at the respective times of his or their deaths ; and had or had not he or they lived at or in the neighbourhood of L. aforesaid, for any and how long time before such information was given ? Declare, &c. 15th. Look upon, &c. Whether or no do or doth the same, or any and which of them, contain a true copy or copies of any and what record or records of any and what courts or court, of any and what other ori- ginal or originals, of which the same do or doth appear to be a copy or copies ? Have you or not carefully examined and compared the said produced writings, or either and which of them, and such if any, record or records, or other original or originals, and when and where, and with whom ? Declare, &c. I6th. Look upon, &c. Are or is the same, or any or either, and which, true copies, or a true copy of any and what entries or entry, in any and what register or registers, of any and what parishes or parish ? Did you or not, ever and when, carefully examine and compare the said produced writings, or any or either, and which of them, with such respective entries, and where, and with whom, and by whom, are or is such register kept? Declare, &;c. Look upon the two bonds or paper-writings now produced and shewn to you at this the time of your examination, marked with the letters A. and B, Whe- ther or no were the same, or either, and which of them, made and executed by you at the times they respectively bear date, or when else, and under what circumstances, and for what considerations respectively, and on what terms and conditions were you articled as a clerk to the Testator W. G. in the pleadings in this cause flamed ? ;nterrogatoiIie3. 569 Interrogatory Whetlier or no did the Defendants, or either, and to prove a ten- which of them, or any and what person or persons, on der of money, their or either and which of their behalf, at any times and refusal. or time, and when, or about what times or time particu- larly, and whether before or after the day of tender or offer to pay or satisfy unto any and what persons or person, any and what sums or sum of money, in or towards discharging any and what legacies or legacy given by the will of ? Were or was not any and what securities or security, and from, and to whom, for payment of any and what sums or sum of money produced, and by whom, at all, or any, and which of such times ? Did the persons to whom such, if any, tender were offered or made, at any, or either, and which of such times, agree or refuse to accept the money or other satisfaction so offered ? How, and in what manner did he, she, or they, at such time or times, express or de- clare him or herself, or themselves relating thereto ? To prove the Whether or no was there, on the day of atnnunt of a any and what sum of money due and owing to the above mortgage debt, named Complainants T. B. and B. B. and their part- ners in the R, bank, in respect of monies advanced by the said Complainants, to or for the use, or on the account of the said T. B. and B. B. and their said part- ners or otherwise, and what is now due to the said Complainants in respect thereof? Set forth, &c. To prove note Look upon the paper-writings now produced, &c. of hand. and piuporting to be a promissory note for £ from A. B. deceased, in the pleadings of this cause named, to the said Complainants, and bearing date the day of . Whether or no did you ever see the said A. B. wiite, or are you by any otiier and what means, acquainted with the charac- ter and manner of his handwriting, and whether or no is the name A. B. fippearing to be set and subscribed to the said produced paper-writing marked D, of the proper hand-writing of the said A. B. as you, for any and what reason, know or believe ? Declare, &c. To prove in In what manner, and at what periods were the balance what manner sheets of the said accounts made up ; were or were not and at what such balance sheets from time to time delivered to 'he tiine the balance said T. B. ? If yea, for what reason anJ for what of accounts of purpose were such balance sheets Bjade up and delivered 1^ 570 IxNTERROGATORIES. partnership to the said T. B. ? Did you or did you not at any lime icere made up, and when, during the continuance of the said partner- ^c. ship between the said G. P. and T. B. and yourself, consider the said T. B. entitled to any and what share and proportion of the profits of the said brokage busi- ness ? And if he the said T. B. had demanded any share or proportion of such profits in the years when such business was profitable, should you or should you not have complied with such demand, &c. ? Set forth, &c. Interrogatory Was not the said Testator P. C. at his death, pos- as to the posses- sessed of, or in some manner interested in a messuage sion of an estate, or tenement at H. in the county of M. ? If yea, set forth the particulars of which the same consisted, and from whom, and under what lease or agreement, and for what term, and at, and by what yearly or other rent the same and every part thereof was holden by the said Testator ; and set forth also at what rent and other con- ditions, and for what term of years you have since taken the same, and in whose occupation the same and every part thereof halli been since the death of the said Tes- tator, and now is, and at what rent or rents. Whether or no have you, or either and which of you, since the death of the said Testator, possessed any and what property of the said Testator which was specifi- cally bequeathed b}' him, other than and except such moieties as you have delivered to the specific legatees? If yea, set forth a full, true, and particular inventory and account thereof, and of every part thereof, and of all particulars whereof the same consisted, and the y tlie time limited by the rules of the Court. It is thereupon ordered to be referred 580 ORDERS. to Mr. one of the masters of this Court, to look into the PlaiiJ- tiff's bill the Defendant's said answer, and the Plaintiff's said excep- tions, and certify whether the said answer be sufficient or not. Order to stay rroccedings on the Master- s Report, Exceptions being fled. Upon motion, &c. it was alleged that the Plaintiff had filed excep- tions to the report made in this cause by Mr. one, &c. dated the day of and deposited £ with the register, according to the rule, as by the register's certificate appears. It was therefore prayed, that all proceedings on the master's report may be stayed, until the ex- ceptions shall be argued and determined, which is ordered accordingly. Order to procure a Report in Days, and continue an Injunction in the mean time. Whereas by an order of the day of for the reasons therein contained, it is ordered that the injunction granted in this cause, for sta) of the Defendant's proceedings at law should be dissolved, unless the Plaintiff, his clerk, in Court, having notice thereof, should on this day shew unto this Court good cause to the contrary. Now, upon motion, &c. it was alleged, that the Defendant having put in an insufficient answer to the Plaintiff's bill, the Plaintiff liath taken exceptions thereto, since whith the Defendant hath not put in any further answer, although the Defendant's is very insufficient, as the Plaintiff is advised ; and therefore it was prayed, that the said injunction may be continued until the said Defendant hath put in a perfect answer to the Plaintiff's bill. Where- upon, and upon hearing of what was alleged by the counsel on both sides, it is ordered that it be referred to Mr. one, &:c. to look into the Plaintiff's bill, the Defendant's said answer, and the Plaintiff's said ex- ceptions, and certify whether the said answer be sufficient or not. But the Plaintiff is to procure the master's report in days, or in default thereof the said injunciion is to stand dissolved wilhout further motion, which in the meantime is hereby continued. To refer Examination. Upon motion, &c. that the Defendant having put in his examination to certain interrogatories exhibited by the Plaintiff, before Mr. one, &c. pursuant to the decree in this cause, the said Defendant hath since put in his examination to the said interrogatories, which the Plain- tiff is advised is insufficient 5 and therefore it was prayed, that it may ORDERS. 581 be referred to the said master to look into the said interrogatories and examination, and to certify whether the said examination be sufficient or not, which is ordered accordingly. Order to refer Examination of Commissioners of Sequestration. Upon opening, &c. per Defendant, it was alleged that of the commissioners, named in a commission of sequestration awarded against the Defendant, having been examined on interrogatories before Mr. one, &c. have, as the said Defendant is advised, put in an insufficient examination thereto. It is ordered that it be referred to the said mas- ter to look into the said exceptions, and certify whether the same be sufficient or not. Order for a Commission to assign a Guardian. Upon motion, &c. it was alleged, that the Plaintiff hath exhibited his bill into this court against the Defendants, who live in . There-. fore, and in regard the Defendant is an infant, and he and the other Defendants are not in contempt, and have not had any order for time. It was prayed that a commission may issue directed to certain commis- sioners, to be therein named, to call the Defendant, the infant, before them, to choose him a guardian, by whom he may answer the Plaintiff's bill, and defend this suit, and that such guardian, so to be chosen, stand assigned by the court ; and that the said commissioners may take and return the said Defendant the infant's answer, and also the answer of the other Defendants to the Plaintiff's bill by such commission, and may have time to take and return the same, which is ordered accord- ingly- Order for Commission to examine in Term-time. Upon motion, &c. that a commission hath issued for the examination of witnesses in this cause ; and therefore it was prayed, that may be at liberty to execute the said commission in term-time, which is ordered accordingly. Order for Commission to examine Witnesses. Upon motion, &c. that has several material witnesses to examine, who live in the country, and therefore it was prayed that may have a commission [for the examination of witnesses, and that the De- fendant's clerk in court, in days after notice hereof, join and strike commissioners' names with the PlaintifKs' clerk in court, or in default 582 ORDERS. thereof, that the Plaintift's may be liberty to take out such commissioii, directed to their own commissionerSj which is ordered accordingly.] Order for a Subpoena to rejoin, returnable immediately, and for a Com- mission. Upon motion, &c. it was alleged that the Plaintiff has replied to the Defendant's answer, and therefore it was prayed tliat a subpoena to re- join may be awarded against the said Defendant, returnable immediately ; and that service tliereof on the said Defendant's clerk in court may be deemed good service on the said Defendant, and that the Plaintiff's may have a commission (same as the foregoing between crotchets.) Order to renew a Commission. Upon motion, &c. it was alleged, that this cause being at issue, a commission issued the last term for the examination of witnesses, but the said commission was not executed, and it being the Plaintiff's own delay, it was therefore prayed that the Plaintiff may be at liberty to renew the said commission for the examination of witnesses, directed to the former commissioners, which is ordered accordingly. Order to appoint a Guardian in Court. The Defendant the infant, this day personally aj)peared before the Right Hon. and prayed that may be assigned his guardian, by whom he may answer the Plaintiff's bill, and defend this suit, which is ordered accordingly. Order to dismiss without Costs, Defendant not having appeared. Upon motion, &c. that the Plaintiff having exhibited his bill in this (iourt against the Defendant, is since advised to proceed no farther therein ; therefore, and in regard that the Defendant had not appeared thereto, it was prayed that the Plaintiff's bill may stand dismissed out of this court without costs, which is ordered accordingly. Order to dismiss a Bill after A7isi(}er, Plaintiff not having proceeded. Forasmuch, &c. that the Defendant put in his answer to the Plain- tiff's bill, on the day of since which the Plaintiff hath not further proceeded in this cause, as by tlie six clerks' certificate appears. It is therefore ordered that the Plaintiff's bill do stand dismissed out of this court with costs to be taxed by Mr. one of the masters of ^liis court. ORDERS. 583 Order for a Commission to plead, Sfc. Upon motion, &c. per Defendant, it was alleged that the Defendant lives in , and is advised to plead and demur to part, at least, of Plaintiff's bill ; therefore, and in regard the Defendants are not in con- tempt, and have obtained order for time to answer, it was prayed that they may be at liberty to take out commission, to take their plea, an- swer, or demurrer, to the Plaintiff's bill, and that the Plaintiff's clerk in court may, in two days after notice hereof, give the Defendants' clerk in court, commissioners names to see the Defendants' plea, answer, or demurrer taken, or in default thereof, that the said Defendant may be at liberty to take out such commission directed to their own commissioners, and may have six weeks time to return the said commission, which is ordered accordingly, but the Defendants are not to demur alone. Order to dismiss a Bill after a Replication. Forasmuch, &c. per Defendant, that the Plaintiff having exhibited his bill in this court against the Defendants, they put in their answer thereto, and the Plaintiff's replication to such answer was filed, the day of , as by the six clerks' certificate appears, which Plaintiff hath not further proceeded in this cause against the Defendant towards the hearing thereof j and thereupon it was prayed that the Plain- tiff's bill may stand dismissed out of this court, with costs, for want of prosecution; which, upon reading an affidavit of notice of this motion, and six clerks' certificate, is ordered accordingly, and that it be referred to Mr, , one, &c. to tax the said costs. Order to dis7mss a Bill with Costs at the Plaintiff- s Request. Upon motion, &c. it was alleged, that the Plaintiff, having exhibited his bill in this court against the Defendant, is since advised to proceed no further therein ; and therefore it was prayed that the Plaintiff's bill may stand dismissed out of this court, with costs, which is ordered ac- cordingly ; and it is hereby referred to Mr. , one, &c. to tax the said costs. Order to dismiss a Bill witliout Costs hij Consent. Upon motion, &c. it was alleged that the Plaintiffs, having exhibited their bill in this court against the Defendants, the matters in difference are since accommodated ; therefore it was prayed that the Plaintiffs' bill may stand dismissed out of this court, without costs, which, upon hearing of Mr. , of counsel for the said Defendants, who consented thereto, is ordered accordingly. 584 ORUERS. Order for a general Dismission at Defendant's Request upon the Hear' ing, Plaintiff having not come into Court. The cause standing this clay in the paper of causes to be heard, at the request of the Defendant, before the right honorable , in the presence of the Defendant's counsel, none appearing for the Plaintiffs to open their bill, although the Defendants were duly served with subpoena to hear judgment, as by affidavit now produced and read app6ars; it is ordered that the Plaintiffs' bill do, from henceforth, stand absolutely dis- missed out of this court, with costs, to be taxed by Mr. , one of the masters of this court. Order to answer hy Committee. Upon motion, &c. that the Plaintiff hath exhibited his bill in this court against the Defendant, against whom a commission of lunacy hath issued, and hath been appointed his committee, and the said lunatic living in the county of , it was prayed that the said lunatic may be at liberty to put in his answer by his said committee, and may have a commission for that purpose, which is ordered accordingly. Order for Time to Ansiter. Upon motion, &c. it was alleged that the Defendants are preparing their answer to the Plaintiff's bill, but cannot perfect the same in time ; therefore, and in regard the said Defendants are not in contempt, and have had no order for time to answer, it was pra3ed that the said De- fendants may have time to put in their answer to the Plaintiff's bill, which is ordered accordingly. N. B. If the Defendant moves for time to plead, answer, or demur, add, at the end, the words following : — " But the Defendant is not to demur alone." Order for Time to answer Crois Bill, after Answer put in to original Bill. Upon motion, &c. it was alleged that the Plaintiff, having exhibited his bill in this Court against the Defendant, he hath appeared thereto, and hath since exhibited his cross bill in this court against the Plaintiff, and is proceeding to compel the Plaintiff to answer the same ; it was therefore prayed that the Plaintiff may have time to put in his answer to the cross bill, after the Defendant shall have put in his ani5wer to the original bill, which is ord'^red accordingly. ORDERS. 585 Order for a general Disinission on Hearing. This cause coming on this present day to be heard and debated before the right honorable the , in the presence of counsel learned on both sides, upon debate of the matter and hearing, &c. &«r-read, and of what was alleged by the counsel on both sides, his Lordship doth order that the Plaiiitiflf's bill do, from henceforth, stand absolutely dis- missed out of this Court, with costs, to be taxed by Mr. . one &c. Order to dismiss a Bill of Review on Hearing. This cause coming on, &c. and the pleadings in the cause being opened, and the scope of the Plaintiff's bill being, that, for many errors thereby assigned and other defaults, appearing in a decree made by the right honorable the , on the hearing an original cause, wherein the Plaintiffs Testator was Plaintiff, and the decree bearing date the , which had been received, reversed, and amended, and the Plaintiff's relieved, and was entitled to, or ought to have been ; where- upon, and upon debate of the matter, and hearing of read, and of what was alleged by the counsel for , his Lordship dolh or- der, that; &c. [the same as the foregoing.] Order to give Security before obliged to answer. t/pon motion, &c. per Defendant, it was alleged, that it appears by the Plaintiff's bill that the Plaintiff lives in , in parts beyond seas, and therefore it was prayed that the Plaintiff may procure some sufficient person on his behalf to give security, according to the course of the Court, to the two senior Six Clerks of this Court, hot to- wards the cause in the bond of .£ , conditioned to ans\Ver costs, in case the Court shall think tit io award any, before the Defendants be obliged to put in their answer to the Plaintiff's bill, and that the De- fendant may have a fortnight's time to put in his answer to the Plaintiff's bill, after the Plaintiff has given such security, which is ordered ac- cordingly. N. B. If the Plaintiff do not state himself abroad by his bill, this order is not granted, but on affidavit of the Plaintiff's being abroad. Order to Answer without Oath or Attcstaicon upon Honor. Upon motion, &c. it was alleged, that the Plaintiffs are willing id accept the answer of the Defendant , without his attestatioa, jjpon honor, and the answer of the other Defendaflts without oath : and 586 ORDERS. therefore it was prayed that the said may be at liberty put in his answer to the Plaintifl'"s bill without his attestation, upon honor, and that the other Defendants may be at liberty to put in their an- swer to the Plaintiff's said bill without oath ; which is ordered accord- ingly. Order for tihie to Answer on entering an Appearance. Upon motion, &c, per Defendant, it was alleged, that the said De- fendant is in contempt to an attachment for want of his answer to the Plaintiff's bill but that he is preparing his answer, and therefore it was prayed that he may have a week's time to put in his answer ; where- upon it is ordered, upon the Defendant's entering with the register, by his clerk in two days, and consenting that the serjeant at arms, attend- ing this Court shall go against him, as in the case of a commission of re- bellion, returned non est inventus, in case he shall not put in his answer to the Plaintiff's bill by the time, hereinafter mentioned, that the said Defendant have time to put in his answer to the Plaintiff's bill. N. B. If a corporation, it must be "that a sequestration shall issue," instead of a " serjeant at arms." Order to ansiccr separate, and Com7nissio7i abroad to assign Guardian. Upon motion, &c. that the matters in difference in this cause arise in right of the said , the wife of the said , and she residing at present in the kingdom of , is advised to answer sepa- rate from the said , her husband, and being an infant, and not having obtained any order for time, and not being in contempt, it was therefore prayed tliat the said Defendant may be at liberty to put in her answer to the Plaintiff's bill separate from her said husband, and that a commission may issue directed to the kingdom of , &c. Ordir to Ansiccr separate. Upon motion, &c. per Defendant, it was alleged, that the Plaintiffs have exhibited their bill in this Court against the Defendants, and she and the Defendant her husband have lived separate some years ; and therefore it was prayed that the said Defendant may be at liberty to put in her answer to the Plaintiff's bill separate from her husband, which i.« ordered accordingly. ORDERS. 587 Order to refer Defendant's Answer to the Plaintiff ^s Bill to the Master for Impertinence and Scandal. Forasmuch, &c. per Plaintiff, that the Plaintiff, upon perusal of De- fendant's answer to the Plaintiff's bill, is advised the same is scandalous and impertinent ; it is thereupon ordered that it may be referred to Mr. , one, &c. to look into the Plaintiff's bill and the said De- fendant's answer, and certify whether the same be scandalous and im- pertinent or not. Order to refer a Bill for Scandal and Impertinence. Forasmuch, &c. per Defendant, that the Defendant, upon the perusal ol the Plaintiff's bill, is advised that the same is scandalous and impertinent; it is thereupon ordered, that it be referred to Mr. , one, &c. to look into the Plaintiff's bill, and certify whether the same be scandalous and impertinent or not. Order to expunge the Impertinence of the Plaintiff's Bill and to tax Costs on Motion. Whereas by an order, dated, &c. suggesting (insert the order of re- ference to the master,) upon motion, &c. per Defendant, it was alleged that the said master, in pursuance of the said order of the , made his report, and certified the Plaintiff's bill to be impertinent in the particulars therein mentioned ; it was therefore prayed, that it may be referred back to the said master to expunge the impertinence of the Plain- tiff's bill, and to tax the Defendant his costs in respect thereof, which is ordered accordingly. To accept Bill paying Costs out of Purse. Upon opening, &c. it was alleged, that the Plaintiff being advised to exhibit his bill in this Court, against the Defendant, to be relieved touch- ing several matters and among other things, to obtain an injunction to stay the Defendant's proceedings served the Defendant with a subpoena to appear to and answer the same, and the Defendant appeared accord- ingly, (and the bill not being filed in time) preferred costs for want thereof; that the Plaintiff hath since filed his bill, but the Defendant's clerk in Court refuses to accept the same, and therefore it was prayed that the Defendant's clerk in Court may accept the Plaintiff's bill, on payment of the Defendant's co of the Defendant's answer, the Defendant submitted and hath since put in a second answer which the Plaintiff is advised is likewise in- sufficient. It is thereupon ordered that it be referred to Mr. one, &c. to look into the Plaintiff's bill, the Defendant's second answer, and the Plaintiff's exceptions, and certify whether the Defendant's second answer be sufficient or not. Order for liberty to exliihii Interrogatories us to the Credit of a Witness. Upon motion, &c. it was alleged, that the Plaintiffs have examined A. B. as a witness for them in this cause, who is a person of ill fame, and the Defendant hath exhibited articles in the examiner's office, touching the credit of the said A. B. as by certificate appears. It was therefore prayed that the Defendant may be at liberty to exhibit interrogatories for the examination of witnesses to the credit of the said A. B. which is ordered accordingly. Order for a Serjeant at Arms. Whereas the Defendant sits out all process of contempt to a commis- sion of rebellion, for not answering the Plaintiff's bill, and doth s© abscond himself that he cannot be found to be apprehended, as by the return of the said commission of rebellion now produced appears. It is, on the motion of , of counsel for the Plaintiff, ordered that the ORDERS. 595 Serjeant at arms attending this Court do apprehend the Defendant, and bring him to the bar of this Court, to answer his said contempt. Where-^ upon such further order shall be made as shall be just. Xyrder for Serjedrit at Arms for want of Examination, unless Defendant jnffs it in in four Days. Forasmuch, &c. that by the decree made on the hearing of this cause^ all parties were to be examined on interrogatories before Mr. , one, &c. touching the matters in question. That it appears by the said master's certificate, dated the day of, that (state certifcate.) It is there- fore ordered that the Defendant do in four days after personal notice hereof to his clerk in Court, put in his examination to the Plaintifi''s in* terrogatories, or in default tliereot", that the serjeant at arms attending this Court, do apprehend the Defendant and bring him to the bar of this Court, to answer his contempt, whereupon such further order shall be made as shall be just. Order for Serjeant at Arms for loant of further Examination^ Upon motion, &c. it was alleged that by an order of the it was referred to Mr. one, &c. to examine and certify whether the Defendant's exception put in to interrogatories exhibited by the Plaintifl' pursuant to the decree in this cause was sufficient or not. Tiiat the .sjtid master by his report of the certified the Defendant's said examina" tion to be insufficient, since which the Defendant hath not put in any further examination, and tlierefore it war, prayed that the Defendant may in four days after notice hereof to his clerk in Court, put in his further examination to the said interrogatories, or in default thereof, that the serjeatit at arms attending this Court, may apprehend the Defendant and bring him to the bar of this Court to answer his contempt, which is ordered accordingly, and thereupon such further order shall be made as shall be just. Order to produce Boohs in four Days, or a Serjeant at Arm$. Upon opening, &c. it was alleged, that by the decree made on tlie hearing of this cause, the parties were to produce upon oath, before Mr. , one. &c. all books, papers, and writings, in their cus- tody or power, relating to the matters in question j thpt it appears by the said master's certificate, dated, tS:c. that, &c. and therefore it was prayed that the Defendant may, in four days after personal notice here6i fo hi'5 rlerk in Court, produce before the said master, upori dath_4 iku 7G 694* OKDEUS. books, pa|jer&, and wriliiigs, in his custody or power, pursuant to the said decree, or iu default lUereol, that the Serjeant at arms, &c. Order for a Serjeant at Arms on the Eetiirn of a Messenger. Forasmuch, Sec. that the Defendant, sitting an attachment in contempt for want of his answer to the Plaintiff's bill, and being arrested, and a cepi corpus returned thereon, the messenger of this Court was, by order of , directed to take the Defendant in his custody, and bring him to the bar of this Court to answer his said contempt, but the De- fendant doth now so abscond and secrete himself that he cannot be found notwithstanding diligent search and inquiry halh been made after hira by the messenger, as by the messenger's return appears. And the Defendant still persisting in his contempt, and inasmuch as by the rules of this Court, a sequestration cannot issue on any process returned non est inventus, but on the return of the serjeant at arms attending this Court, it is ordered that the serjeant at arms, &c. Order fcr a Sequestration against a Member of Farliamcnt. Upon motion, &c. it was alleged, that the Defendant who is a * mem- ber of parliament, hath been served with a copy of the Plaintifl's bill, and a svhpa:.na to appear to and answer the same, to which he hath ap- peared accordingly, but hath not put in his answer thereto, though his time for so doing is expired. It is thereupon ordered, that a commission of sequestration do issue, directed to certain commissioners to be therein named, to sequester the Defendant's personal estate, and the rents, issues, and profits of his real estate, until the Defendant shall fully answer the Plaintifi's bill and this Court make other order to the contrary, unless the Defendant having personal notice hereof, shall within eiglu days after such notice, shew unto this Court good cause to the contrary. * N. B. If the Defendant be a peer, say : — " Wiio is a peer of this " realm, hath been served with a copy of the Plaintift''s bill, the letter " of the Right Honorable the Lord High Chancellor of Great Britain, and " a subpana to appear." &c. Order for a Sequestration, on return of Serjeant at Arms. Whereas the Defendant sits out all process of contempt to a ser- jeant at arms, for not answering the FlaintiH^'s bill, and doth so abscond himself, that he cannot be found to be apprehended, as by the return of the s«rjeant at arms now produced a|)pears, it is on the motion ol Mr. of counsel for the Plaintiff, ordered that a commission of sequestration do issue, directed to certain commissioners, to be therein ORDERS. 595 named to sequester the Defendant's personal esfatc, antl the rents and profits of his real estate, until the Defendant shall answer the Plaintift^'s bill, clear his contempt and this Court deth make other order to the contrary. Order for a Distringas. Upon motion, &c. it was alleged, that the Defendant hath appeared to the Plaintift''s bill, and is in contempt for want of his answer, and therefore it was prayed that a distringas may issue against the Defendant, returnable immediately, to compel him to put in his answer to the Plaintiff's bill, which is ordered accordingly. Order for an Alias Distringas. Upon motion, &c. that pursuant to an order, dated, &c. a distringas- was issued against the Defendant for his contempt in not answering the Plaintiff's bill ; that the Defendant still persists in his contempt, and therefore it was prayed that an alias distringas may issue against the De- fendant for his contempt, in not answering the Plaintiff's bill, which is ordered accordingly. Order fcyr Pluries Distringas. Upon motion, &c. that pursuant to an order, dated. Sec. an alias dis- tringas issued against the Defendant for want of his answer to the Plain- tiff's bill and he still persists in his contempt, and therefore it was prayed that a. pluries distringas may issue, &c. Order for a Distringas against a Body Corporate. Upon motion, 8:c. it was alleged, that the Defendants have ap- peared to the Plaintiff's bill, and are in contempt for want of answer, and therefore it was prayed that a distringas may issue against the Defen- dants, returnable immediately, to compel them to put in their answer to the Plaintiff's bill which is ordered accordingl}'. Order for a Sequestration, on Distringas, et Alias, et Pluries Distrin<*as. Upon motion, &c. it was alleged, that a distringas et alias, ct j)iuries distringas being awarded against the Defendants, for want of their answers to the Plaintiff's bill, the same are returned, and the Defendants still persist in their contempt: it is thereupon ordered, that a commission of sequestration do issue, dipe'Cted to certain commissioners, to be there- in named, to sequester the Defendants' personal estates, and the rents and 596 ORDERS. profits of their real estates, until the Defendants shall answer the Plain- tifl''s bill, clear their contempt, and this Court make other order to the contrary. Order for Sequestration against Defendant in Pi'ison, for ISou-paymenf of Money, pursuant to Decree. Upon motion, &c. it was alleged that an attachment having been made out against the Defendant for breach of execution of orders, and a report in not paying to the Plaintiff, directed by the sheriffs of L. It appears, by the return of the sherifl's, that the Defendant is a prisoner in the Fleet. It is thereupon ordered, that a commission of secjuestra- tion do issue, directed to certain conimissioners to be therein named, to sequester the Defendant's personal estate, and the rents and profits of his real estate, until the Defendant shall pay the said sum of , clear his contempt, and this Court make other order to the contrary.* * The Defendant must be a prisoner in the Ficct before a sequestra- tion can issue. Order to confnn Judgment on a IVrit of Error, notwithstanding Injunction. Upon motion, &c. it was alleged, that the Defendant, having obtained judgment at law against the Plaintiff, brought a writ of error, which is still depending, and hath exhibited his bill in this Court, and obtained an injunction for stay of the Defendant's proceedings at law ; it was therefore prayed that the Defendant may, notwithstanding the said injunction, pro- ceed at law to affirm his said judgment on the said writ of error, which is ordered accordingly. Order for a Snhpuina Scire Facias. Upon motion, &:c. it was alleged, that this cause was heard on the , and the decree then made therein hath been since signed and in- rolled, since which the Plaintiff is dead, having made his will, and thereof appointed A. C executor, who hath proved the same; and therefore it was prayed that a suhpcena may be awarded against the said A. 13., in the nature of a subpwna scire facias, for the said A. U., at the return thereof, to shew cause why he should not perform the said decree, as the said Plaintiff should have done, if he had been living, which is ordered accordingly. Order to revive by Suhpvena Scire Facias. Whereas by an order of the suggesting, o^, (^statc order.) Now upon Tnotion, &c. it was alleged, that the said , having been served with ORDERS. 597 xlie said swi/jcprta, appeared thereto, and the return of the said subpa'jm being out, and the said having shewn no cause why the said proceed- ings should not be revived, and the said decree performed it was there- fore prayed that the said suit and proceedings may stand revived, and be in the same plight and condition as they were in at the time of the death t>f Plaintiff, which is ordered accordingly. Order for Senior Six Clerk to be assigtied as Guardian to Infant, after brought into Court by Messenger. Whereas, by an order, dated, &c. {iiext folloiving.') And whereas the infant was this day brought to the bar of this court, by the messenger, pursuant to the said ordei", it is, on the motion, &c. ordered, that the senior six clerk, not towards the cause, be guardian to the Defendant, the infant, by whom he may answer the Plaintifr's bill, and defend this suit. Order for a Messenger to bring an Infant into Court to have a Guardian. Upon motion, &c. it was alleged, that the Defendant is in contempt for not appearing to and answering the Plaintifl''s bill, and is an infant, and therefore it was prayed that the messenger attending this court may take the said infant, and bring him into this court, to have a guardian assigned him, by whom he may answer the Plaintiff's bill, and defend this suit, which is ordered accorc!ingly. Order xohen the Court appoints the Defendant a Cleric in Court, to op- pear pursuant to the Act. Forasmuch as the Defendant was this day brought to t!ie bar of this court, by virtue of a writ o{ habeas corpus, directed to tlie warden of the Fleet, to answer his contempt, in not appearing to the Plaintiff's bill, and now refusing or neglecting to enter his appearance, or to appoint a clerk in court to act on his behalf, and Mr. , of counsel for the Plain- tiff, now moving that the court would, pursuant to the late act of par- liament in that case made and provided, appoint one of the sworn clerks of this court to enter an appearance for the Defendant, in order that the Plaintiff may proceed in his cause as if the Defendant had actually appeared; and the court now appointing A. B. one of the sworn clerks of this court, to enter an appearance for the Defendant to the Plaintifl''s bill, it is ordered, that the Defendant, upon paying the Plaintiff his costs of this contem]:)t, and the warden of the Fleet his fees, be discharged out of the custody of tlie garden Qf the Fleet, upon the said contempt. 596 ORDERS. profits oftlicir real estates, until the Defendants shnll answer the Plain- tift"s bill, clear their contempt, and this Court make other order to the contrary. Order for Sequestration ((s:(uniit Defendant in Pnson, for Nou-pai/menf of Money, pursuant to Decree. V[iOV\ motion, Sec. it was alleged that an attachment having been made out against the Defendant for breach of execution of orders, and a report in not paying to the Plaintiff, directed by the sheriffs of L. It appears, by the return of the sheriffs, that the Defendant is a prisoner in the i-^leet. It is thereupon ordeied, that a commission of sequestra- tion do issue, directed to certain commissioners to be therein named, to sequester the Defendant's personal estate, and the rruls and profits of his real estate, until the Defendant shall pay the said sum of , clear his contempt, and this Court make other order to the contrary.* * The Defendant must be a prisoner in the Fleet before a sequestra^ tion can issue. Order to cofrftnn Judgment en a Writ of Error, notwithstanding Injunction. Upon motion, &c. it was alleged, thai tlie Defendant, having obtained judgment at law against the Plaintiff, bioughl a writ of error, which is still depending, and hath exhil>ited his bill in this Court, and obtained an injunction for stay of the Defendant's proceedings at law ; it was therefore prayed that the Defendant may, nolwilhstandiug the said injunction, pro- ceed at law to affum his said judgment on the said writ of error, which is ordered accordingly. Order for a Suhpatna Scire Faciias. Upon motion, &;c. it was alleged, that this cause was heard on the , and the decree then made therein hath been since signed and in- rolled, since which the Plaintiff is dead, having made his will, and thereof appointed A. B. executor, who hath proved the same ; and therefore it was prayed that a suhpa'na may be awarded against the said A. B., in the nature of a nuhpusna scire facias, for the said A. B., at the return thereof, to shew cause why he should not perform the said decree, as the said Plaintiff should have done, if he had been living, which is ordered accordingly. Order to rcricc bi/ Suhpuina Scire Facias. Whereas by an order of the suggesting, o^, {slate order.) Now upon motion, &c, it was alleged, that thegaiU , having been served with ORDERS. 597 ilie said 6«&/jfl'/irt, appeared thereto, and the return of the said siihj)a>7ia being out, and ihe said having shewn no cause why the said proceed- ings should not be revived, and the said decree performed it was there- fore prayed tliat the said suit and proceedings may stand revived, and be in the same phght and condition as they were in at the time of the death pf Plaintiff, which is ordered accordingly. Qrder for Senior Six ClerJ: to he assigned as Guardian to Infant, after brought into Court by Messenger. Whereas, by an order, dated, &c. (^ncxf following.) And whereas the infant was this day brought to the bar of this court, by the messenger, pursuant to the said order, it is, on the motion, &c. ordered, that the senior six clerk, not towards the cause, be guardian to the Defendant, the infant, by whom he may answer the Plaintiffs bill, and defend this suit. Order for a Mcssetiger to bring an Infa^it into Court to have a Guardian. Upon motion, 8zc. it was alleged, that the Defendant is in contempt for not appearing to and answering the Plaintiff's bill, and is an infant, and therefore it was prayed that the messenger attending this court may take the said infant, and bring him into this court, to have a guardian assigned him, by whom he may answer the Plaintiff's bill, and defend this suit, which is ordered accortlingly. Order ivhen the Court appoints the Defendant a Clerk in Court, to op- pear pursuant to the Act. Forasmuch as the Defendant was this day brought to the bar of this court, by virtue of a writ of habeas corpus, directed to the warden of the Fleet, to answer his contempt, in not appearing to the Plaintiff's bill, and now refusing or neglecting to enter his appearance, or to appoint a clerk in court to act on his behalf, and Mr. , of counst^l for the Plain- tiff, now moving that the court would, pursuant to the late act of par- liament in that case made and provided, appoint one of the sworn clerks of this court to enter an appearance for the Defendant, in order that the Plaintiff may proceed in his cause as if the Defendant had actually a]>pearcd; and the court now appointing A. B. one of tiie sworn clerks of this court, to enter an appearance for the Defendant to the Plaintiff's bill, it is ordered, that the Defendant, upon paying the Plaintiff his costs of this contempt, and the warden of the Fleet his fees, be discharged out of the custody of the warden Qf the Fleet, upon the said con(en)pt. 600 ORDERS. Another Order for Habeas Corpun. It was alleged that the Defendant, being on the brought to the bar of this court by the messenger attending this court, for his con- tempt, in not putting in his answer to the Plaintiff's bill, it was ordered that the Defendant should be turned over to the prison of the Fleet, there to remain until he shall have cleared his contempt, and this court have made other order to the contrary. That the Defendant, having been turned over to the prison of the Fleet accordingly, and still per- sisting in his contempt, it is therefore ordered, that a habeas corpus cum causis do issue, directed to the warden of the Fleet, at the return thereof, to bring the Defendant to the bar of this court, to answer his contempt, whereupon such further order shall be made as shall be just. Order for Habeas Corpus, on Defendant being in Custody. Upon motion, &c. it was alleged, that an attachment having been made out against the Defendant, for want of his answer, he hath returned a ccpi corpus thereon. It appears, by the return of the sheriff, that the Defendant is a prisoner in his custody ; it was therefore prayed that a habeas corpus cum causis may issue, directed, &:c. Order for Habeas Corpus, directed to the JFarden of the Fleet. AVhereas the Defendant v>as, on broiigh: to the bar of this court, by virue of a writ of habeas corpus cum ca'/sis, dircrtcti to, ^c. for his contempt, in not answering the Plaintiff's bill, and the Defendant then persisting in his contempt, it was ordered that iic should he turned over to the prison of the Fleet, and remain there till lie should clear his contempt, and this court make other order to the contrary ; now, upon motion, &c. it was alleged, that the Defendant hath not cleared his contempt for want of his answer to the Plaintiff's bill, and therefore it was prayed that a writ of habeas corpus cum causis may issue, directed to the warden of the Fleet, requiring hini, at the return thereof, to bring the Defendant to the bar 'of this court, to answer his said contempt, which is ordered ac- cordingly, and such further order siiall be made as shall be just. Order for Defendant to he remanded to the Fleet, and for an Alias Habeas Corpus. The Defendant, being this day brought to the bar of this court, by virtue of a writ of habeas corpus cum causis, directed to the warden of the Fleet, to answer his contempt, in not answering the Plaintiff's bill, and the Defendant now persisting in his contempt, it is, on the motion, SzQ. ordered that the Defendant be reznanded back to the prison of the ORDERS. , 601 IPhet^ and that a writ of alias habeas corpus cum causis do issue, directed to the warden of the Fleet, requiring him at the return thereof, to bring the Defendant to the bar of this Court, to answer his said contempt. Whereupon such further order shall be made as shall be just. Order for Defendant to be remanded to tlie Fleet, and a Pluries Alias Habeas Corpus. The Defendant, being this day brought to the bar of this Court, by vir- tue of a writ of alias habeas Corpus cum causis, directed to the warden of the Fleet, to answer his contempt in not answering the Plaintiff's bill, and the Defendant now persisting in his contempt, it is, on the motion, &c. ordered that the Defendant be remanded back to the prison of the Fleet, and that a writ o^ pluries habeas corpus cum causis do issue, directed to the warden of the Fleet, requiring him, at the return thereof, to bring the Defendant to the bar of this Court, to answer his said contempt. Whereupon such further order shall be made up as shall be just. Order for Defendant to be remanded to the Fleet, and for Alias Pluries Habeas Corpus and Clerk in Court to attend. The Defendant, being this day brought to the bar of this Court, by vir- tue of a writ oi pluries habeas corpus cum causis, directed to the warden of the Fleet, to answer his contempt in not answering the Plaintiff's bill, and the Defendant now persisting in his contempt, it is, on the motion, &c. or- dered, that the Defendant be remanded back to the prison of the Fleet, and that a writ of alias pluries capies habeas cum causis do issue, directed to the warden of the Fleet, requiring him, at the return thereof, to bring the Defendant to the bar of this Court to answer his said contempt, and that the Plaintiff's clerk in Court do then attend with the record of the Plaintiff's bill in order that the same may be taken pro confesso against the Defendant. Order to speed a Caus^. Whereas Mr. , of counsel for the Defendant, this day moved and offered divers reasons unto the Court that the Plaintiff's bill may stand dismissed out of this Court, with costs, for want of prosecu- tion, in the presence of Mr. , of counsel for the Plaintiff j whereupon and upon hearing what was allpued by the counsel mi both sides, it is ordered that the Plaintiff do speed his cause, (orj [ij uni/ other terms refer to minutes.^ 11 602 ORDERS. Order to revive. Upon motion, &c. {state the proceedings as in bill of revivor) that tlie said suit abating by the death of th^ said A. B., the Plaintiffs have since filed their bill of revivor in this Court against the Defendant, to which they have appeared,* but their time for answering being expired^ it was therefore prayed, that the said suit and proceedings may stand re- vived, and be in the same plight and condition as they were in at the time of the death of the said A. B., which is ordered accordingly. * If they have answered, instead of the words in italics, say, " and " put in their answers, and thereby submit to have the suit revived " against theraj and therefore it was prayed," &c. Ch'der to prove Exhibits. Upon motion, &c. it was prayed, that the Plaintiff may be at liberty to examine one or more witnesses, viva voce, at the hearing of this cause, to prove, (specif 1/ the exhibits) saving all just exceptions, which is ordered accordingly, and hereof notice is forthwith to be given. Order for further time. Upon motion, &c. it was alleged, that the Defendant, on , obtained an order for time to put in his answer to the Plaintiff's bill ; that the Defendant is preparing his answer, but cannot perfect the same by the time limited by the said order, therefore, and in regard, the said Defendant is not in contempt, it was prayed that the Defendant may have further time to put in his answer to the Plaintiff's bill, which is ordered accordingly. But this to be peremptory. Order for further time on third application. Upon motion, &c. it was alleged, that the Defendant has had two several orders for time to put in his answer to the Plaintiff's bill, the first dated for , and the last dated for , which last was to be peremptory ; that the Defendant is preparing his answer, but can- not perfect the same, by the time limited by the said last order, there- fore and in regard, the Defendant is not in contempt it was prayed, that the Defendant may have further time to put in his answer to the Plaintiff's bill, whereupon it is ordered, that the Defendant have further time to put in his answer to the Plaintiff's bill, the Defendant^ by his counsel, consenting to ask no further time. ORDERS. 603 Order to refer it to the Master to see loho set Counsel's Name to Bill. Upon motion, &c. it was alleged that the Plaintiff having exhibited his bill in this Court, against the Defendant, the Defendant, upon look- ing into the same, is advised the name of , set thereto as the counsel who signed the bill, is not of his hand-writing or put thereto with his privity. It is thereupon ordered, that it be referred to Mr. , one, &c. to look into the Plaintiff's bill, and examine and certify whether the name of , set thereto, is of the hand-writing of th<» said , or was set thereto with his privity. Order for a Guardian to an Insane Person. Upon motion, &c. it was alleged, that the Defendant is a person of insane mind, and not capable of understanding the Plaintiff's bill, or putting in answer thereto, as by affidavit appears, (words from affidavit); and therefore it was prayed, that the Defendant may have a commission to assign him a guardian, by whom he may answer the Plaintiff's bill, and defend this suit, and to take his answer by such guardian, which, upon reading the said affidavit, is ordered accordingly, thereof notice is to be given forthwith. Order to tax a Solicitor's Bill. Upon opening, &c, {state the case) wherefore it is ordered that it be referred to Mr. , one, &c. to tax the said A. B.'s bill of fees and disbursements ; and the said A. B, is to be examined on interroga- tories, and to produce, on oath, before the said master, all books, papers, and writings, in his custody or power, relating thereto, as the said mas- ter shall direct. And it is ordered, that the said do pay the said A. B. what, if any thing shall appear to be due to him in such tax- ation ; and thereupon, or in case it shall appear that the said A. B. is overpaid, the said A. B. is to deliver to the said , upon oath, all books, papers, and writings, which he hath in his custody or power belonging to the said ; and in case it shall appear that the said A. B. is overpaid, it is ordered, that the said A, B. do refund to the said what the said master shall certify to be so overpaid. N. B. There must be a submission of the party applying for this order to pay what shall be due on the taxation. Order to make a Decree absolute. Whereas by the decree made in this cause, bearing date the , it was ordered and decreed (ordering part). Now, upon motion, &c. it was alleged, that the Defendant has been duly served with a subpoena 604 ORDERS. to shew cause against the said decree, as by affidavit appears, and that no cause is shewn to the contrary thereof, as by the register's certificate al^o appears : and therefore it was prayed, that the said decree may be made absolute, which is ordered accordingly. Order for an Infant to convey. Upon opening, &;c [state order of reference.^ In pursuance whereof the said master made his report, dated, &:c. and thereby certified {report in past tense ;) and thereupon it was prayed that the said , in- fant, may, pursuant to the said act of parliament, convey the said pre- mises, according to the said report, which, upon reading the said report, is ordered accordingly. Order to appoint a Receiver as to several Kinds of Estates, and of an Estate in Ireland Upon opening, Sec. (state case) it is ordered that it be referred to Mr. &c. to appoint a proper person to be receiver of the rents and profits of the real estate of , and to allow him a reasonable salary for his care and pains therein, such person so to be appointed receiver, first giving security to be allowed of by the said master, and to be taken before a master extraordinary in the country, if there shall be occasion, duly and annually to account for and pay what he shall so receive, as this court shall direct, and the tenants of the said estate are to attorn and pay their rents in arrear, and growing rents, to such re- ceiver, who is to be at liberty to let and set the said estates, from time to time, with the approbation of the said master, as there shall be oc- casion. N. B. If the estate be in Ireland, say, " and let the person who shall " be appointed receiver of the rents and profits of the said estate in Ire- " land, give security, to be approved of by the said master ; but the a recognizance is to be acknowledged by the person, so to be appointed " receiver, before a master of the Court of Chancery in Ireland, and " to hf d'lly entered and enrolled according to the course of that court; ** and the taking and enrolling thereof is to be duly certified to this court " by one of ihe masters of that court." If there be copyhold estates, and courts to be held, add, at the end, the following words : " and let such courts as have been usually held, " and are proper io be held, for the copyhold estate, be, from time to " time, held by the receiver in the name or names of the person or per- " sons, in whom the legal estate is, and let the receiver bring into this " court his account of all such fines and other profits as shall be taken " by him at such courts." cmDERS. 605 If a manor, say, before the above, " and any other person or persons, •^ in receipt of any part of the profits of the said manor, are also to " pay the arrears and growing payments thereof to such receiver." Again, if a manor ; " and let such receiver let or set such part or " parts of the land and premises, and the quit rents, and other material " rights and profits of the said manor a? have been usually let or set by *' copy of court-roll, or otherwise, according to the custom of the said " manor, with the approbation of the master, as there shall be oc- Order to tax Costs, no Relief being prayed by iJie Bill. Upon opening, &c. it was ordered that the Piaintid's having exhibited their bill in this court against the Defendant for a discovery of the se- veral matters' therein mentioned, and for the examination of witnesses, in order to perpetuate their testimony thereto ; ana the Defendant having put in his answer to the said bill, the Plaintiffs replied thereto, and the cause being at issue, the Plaintiffs sued out a commission, and examined their witnesses thereon ; but the Defendant hath not examined any witnesses, and the Plaintiffs, by their said bill, praying no relief, and not having proceeded in their cause since the execution of the said commission, it was therefore prayed, that the Plaintiffs may pay unto the Defendants his costs of this suit, which, upon hearing, &c. is ordered accordingly, and it is hereby referred to Mr. &c. to tax the said costs. N. B. Upon the answer coming in, if the Plaintiff doth not except within the time limited, the Defendant moves of course for this order. Order to make an Agi^eement an Order of Court. Whereas by articles of agreement, bearing date, &c. it ?s recited and agreed as follows, that is to say, {agreement verbatim^ Now, upon motion, &c. and upon producing one part of the said articles, under the respective hands and seals of , and praying that the same may be made an order of this court, it is ordered, that the said agree- ment be made an order of this court, to be observed and performed by the parties thereto, according to the tenor and true meaning thereof, ,Mr. , of counsel for , consenting thereto. Order to examine Feme Coverts separately. Upon motion, &c. {state case) it is ordered, that the said , the wife of , and , the wife of , do severally attend justices, * &c. or any of them, be solely and secretly 606 ORDERS. examined by them separate and apart from their said husbands, how, and in what manner, and to what uses, they are severally willing and de- sirous may be paid and applied ; and the said , or any of them, who shall take such examinations, are to take the same in writing- signed by the said respectively, and to certify the same, in writing, under their hands, and the signing of the said , and such certificates, are to be verified by affidavit; and, upon the return of such certificates, such further order shall be made as shall be just. * If they reside in America, to attend counsellors and attornies, of , and aldermen of the same, and such certificate to be verified by the seal of the province annexed thereto. Order to dissolve an Injunction, ttnless Cause revived. Upon motion, &c. it was alleged, that the Plaintiff is lately dead, having made his will, and appointed executors thereof, who proved the same, but have not thought fit to revive this suit, and the said Plaintiff having, in his life-time, obtained an injunction to stay the Defendant's proceedings at law for the matters here in question. It was therefore prayed, that the said , the executors of the said Plaintiff, may, in after notice hereof, exhibit a bill of re- vivor against the Defendant, in order to revive this suit, or in default thereof, that the said injunction may be dissolved, which is ordered ac- cordingly. Order to answer by Committee. Upon motion it was alleged, that the Plaintift' hath exhibited his bill in this court against the Defendant, therefore, and in regard a commis- sion of lunacy hath issued against the Defendant, and he hath been found a lunatic tliereon, and hath been appointed his commit- tee, it was prayed, that the Defendant may be at liberty to put in his answer to the Plaintiff's bill by the said , his committee, and may have a commission, &c. which is ordered accordingly. Order for (Sheriff to make return on Attachment. Upon motion, &c. it was alleged, that an attachment having is- sued against the Defendant for want of his answer to the Plaintiff's bill, returnable the day of , the sheriff of , to whom the said attachment was directed, refuses to return the same. It is thereupon ordered, that the said sherifl'of do forthwith make his return on the said attachment. ORDERS. 607 Order to vacate Recognizance of a Receiver. Upon opening, &c. it was alleged, that (order to appoint a receiver^ that, pursuant to the said order, the said master appointed re- ceiver of who thereupon, together with and , as his sureties, by the names and additions of , {take the exact words from recognizance) did, on , enter into a recognizance unto in the penalty of , with condition, &c. And thereupon it was prayed, that the said recognizance, so entered into by the said , together with the said and , his sureties as aforesaid, may be vacated, which is ordered accordingly, and for that purpose the proper officer is to attend with the record of the said recognizance. Oi'der for a Writ of Supplicanit. Upon opening, &c. and upon producing certain articles of misde meanor exhibited against , and {ittested by , and hearing the same read, it is ordered that a special writ of supplicavit do issue according to the statute in that case made and provided, and the security to be taken thereon, as to the said , is to be hi the sum of £ , and he is to find sureties in the sum of £ Order for a Commission to set out and disti?igiiish Copyhold from Free- hold Lands. Let a commission issue, directed to certain commissioners to be therein named, to set out, distinguish, and divide the copyhold lands com- prised in the deed of. &c. or any of them, from the freehold lands, and to ascertain the boundaries thereof; and the commissioners are to set out, distinguish, divide, and ascertain the same accordingly. And after the lands shall be so set out respectively, the Defendant is to deliver possession thereof to the Plaintiff, and the Plaintiff and his heirs are to hold and enjoy the same against Defendant and his heirs, or any person or persons claiming under him, as parcel of the manor of, &c. And let all parties produce before the commissioners all court-rolls, court-books, copies of court-rolls, deeds, and other writings, relating to the lands in question, in their custody or power, upon oath, to be in- spected by the commissioners, or by the parties, or their agents, as the commissioners shall think fit, and the parties are to be at liberty, at their own expense, to take copies thereof. 608 ORDERS. Order to see which Bill is most for Infant's Benefit. Upon motion, &c. it was alleged, that bills have been exhibited in this court in the name of the Plaintiff, the infant, one by , as his next friend, and the other by , as his next fiiend, touching one and the same matter ; and therefore it was prayed that, &c. Order to deliver Long Annuity Orders out of the Bank. Upon opening, &c. it is ordered, that the long annuity orders following, that is to say, No. dated, &c. for and No. , dated, &c. for , placed to the credit of this cause, be, together with the tallies belonging thereto, delivered out of the bank with the privity of the Accountant-General of this Court, and assigned by hira to 07'der on arguing Exceptions. The matter of the exceptions taken by the report, made in this cause by Mr. , one, &c. dated, &c. coming on, &c. to be argued before , in the pfesence of counsel learned, for , upon opening and debate of the Defendant's first exception, and hear- ing read, and what was alleged, &c. held the said first exception to be insufficient, and doth therefore order that the same be over-ruled, and the said second exception being for that, &c. upon debate, &c. doth order, on the said second exception, that, &c. and that the sum of £ , deposited by , with the register, on the filing of the said exceptions, be paid to (or be divided hettveen. Order to take Issues pro Confesso. Upon opening, &c. unless the Plaintiffs in the issues do proceed to the trial thereof some time in , it is ordered that the said issues be taken pro confesso as if the same had been tried and found against them without further motion. Order on arguing Plea and Demun-er, where over'ruled — Variations tohere they are allowed, and when ordered to stand for an answer. The matter of the plea and demurrer put in by the Defendant, to the Plaintiff's bill, coming on this present day to be argued before , in the presence of counsel learned, for ; and the said plea and demurrer being opened,* upon debate of the matter and hearing, &c. held the said plea and demurrer to be insufficient, and doth therefore order that the same be over-ruled. ORDERS. 609 * If they are allowed, it will run thus : — " and the same being as to ■^' so much of the Plaintiff's bill, S^c. the Defendant by the said d'-- " murrer, insisting, &c. upon debate, &c. held the Defendant's said " plea and demurrer to be good and sufficient, and therefore doth or- " der that the same do stand and be allowed, and that the sum of " £ be deposited by the Defendant, with the register, on setting " down the said plea and demurrer to be argued, be paid back to the " Defendant." And thus, if they stand for an answer :— '' the matter, ^c. and the " said plea and demurrer being opened upon debate, &c. doth order, " that the said plea do stand for an answer, with liberty for the Plaintiff *' to except thereto, and the benefit thereof is hereby saved unto the De- " fendant until the hearing of this cause." Order for sale of Annuities and Payment of Cash out of "Bank. Upon opening, &c. it is ordered, that the annuities standing in the name of the Accountant-General of this Court, in trust in this cause, be sold with the privity of the said Accountant-General, and one of the cashiers of the bank is to have notice to attend such sale, and receive the money arising thereby, who, on receipt thereof, is to pay the same into the Bank to be placed to the credit of this cause; and when the said money shall be so paid into the Bank, it is ordered, that the same be paid to , and for that purpose the said Accountant- General is to draw oji the Bank, according to the form prescribed by act of parliament for relief of the suitors of this Court, and the general rules and orders of this Court in that case made and provided. Order for Ne Exeat Regno. Upon motion, &c. it was alleged, that it appears by the affidavit of {state affidavit) to be relieved, wherein the Plaintiff hath filed his bill ift this court against the Defendant, as by the six clerks' certificate appears. It was therefore prayed, that a writ of ne exeat regno may be awarded against the Defendant until he shall fully answer the Plaintiff's bill, and this Court make other order to the contrary which upon reading the said affidavit is ordered accordingly ; and the said writ is to be marked in the sum of ^ , in words at length and not in figures. Order to disattoio Cause, and dissolve Injunction. Whereas by an order of the , for the reasons therein con- tained, it was ordered, that, &c. Now, upon motion, &c. who came 78 610 ORDERS. , to shew cause against the said order, and moved and oftered divers reasons for discharge thereof, and for continuance of the said injunction, in the presence of Mr. , of counsel for the Defendant ; where- upon, and upon hearing of what was alleged by the counsel on both sides, his Lordship doth disallow the cause now shewn, and doth there- fore order that the said injunction do stand dissolved. Order to adjourn Petition. Counsel for this day attending touching the matter of a pe- tition, preferred by the said unto , on , his Lordship doth order, that the matter of the said petition do stand adjourned to the next day of petitions. Order to ansicer Vincidis, fourth Ansivcr insufficient. Forasmuch, &c. that the Defendant's fourth answer to the Plaintiff's bill hath been reported insufficient by Mr. , one, &c. as by the said master's report, dated, &c. now produced and read, appears. It is thereupon ordered, that the Defendant do stand committed to the prison of the Fleet until he shall fully answer the Plaintiff's bill, clear his contempt, and this Court make other order to the contrary. Order to add an Interrogatory to those exhibited. Upon motion, &'c. that this cause being at issue, a commission issued for the examination of witnesses, returnable, &c. that the Plaintiff is ad- vised it will be material ftir him to add an interrogatory to those already exhibited; and therefore it was prayed, that the Plaintiff may be at liberty to add an interrogatory to those already exhibited on the said commission, which is ordered accordingly. Order to answer Exceptions to a Decree of Charitable Unes. Upon motion, &c. of counsel for the exceptions, it was alleged, that the exceptants, on , fded exceptions to a decree of charitable uses, made by commissioners on behalf of the poor of , since which the respondent hath not put in any answer thereto, as by certifi- cate appears. It is thereupon ordered, that the respondent do answer the said exceptions in after personal notice thereof, or in de- fault thereof, that the said exceptions be taken pro confesso, and the said decree reversed. ORDERS. 611 Order to add an Interrogatory as to Exhibits, Publication having passed. Upon motion, &c. that the Plaintiff is advised to prove the following exhibits, that is to say, &;c, ; but publication having passed he cannot do it without the leave of the Court. It was therefore prayed, that the Plaintiff may be at liberty to exhibit an interrogatory in the examiner's office and to examine witnesses thereon to prove the said exiiibits, not- withstanding publication is passed, which is ordered accordingly. Order to make Award on order of Court. Upon motion, &c. and praying the writing of award hereafter men- tionrd, bearing date, I'fec. under the respective hands and seals of , and by them sealed and delivered, being first duly stamped in the pre- sence of , may be made an award of this Court ; and the said writing of award being now produced, the same appears to be as fol- lows, that is to say — To all people, &c. Whereupon, and upon hearing, &c. and an affidavit niade by the said read, his Lordship doth order, &:c. Order to amend Bill by making some of the Plaintiff's Defendants. Upon motion, &:c. it was alleged, that the present Plaintiffs, together with , having exhibited their bill in this Court against the Defendants, the Plaintiffs are advised to strike out the names of the said from being Complainants, and to name the said Com- plainants Defendants to the said bill ; and therefore it was prayed, that the Plaintiffs may be at liberty to amend their bill, without costs, by striking out the said from being Complainants, and by making them Defendants ; which is ordered accordingly. Order for Time for Husband and Wife to answer separate, although Defendants do not live separate. Upon motion, &c. of counsel for the Defendant, (the wife) it was alleged, that the Defendant (the husband) is made a Defendant to thfe Plaintiff's bill, in right of the said Defendant (his wife); that the said Defendant (the wife) is advised to put in her answer separate from the said Defendant (her husband); therefore, and in regard the said De- fendant (the wife) hath not obtained any order for time, and is not in contempt, it was prayed, that she may be at liberty to put in her answer to the Plaintiff's bill separate from her said husband, and niay>' have weeks time for that purpose, and which is ordered ac- cordingly. 612 ORDERS. % Order for arguing Demurret' in Petti/ Bag. The matter of the demurrer put in for the Plaintiff to the Defendant's plea to the Plaintiff's declaration in the petty bag coming on this present day to be argued before , in the presence of counsel learned on both sides. Upon opening and debate of the matter, and hearing, &;c. his Lordship doth order, that the said Plaintiff have judg- ment, unless the Defendant shall on shew unto this Court good cause to the contrary. Demurrer to adjourn. The matter of the demurrer put in by the Defendant to the Plaintiff's bill, standing this present day in the paper of pleas and demurrers to be argued before , in the presence of counsel learned on both sides ; and [state reason) his Loi dship doth order, that the said demurrer do stand adjourned over to the next day of pleas and demurrer. Order to conjirni proceedings under Act bth George III. Upon opening, &c. that the Plaintiff having exhibited his bill in this Court against Defendant, and sued out a subpoena to compel him to appear and answer the same, and the Defendant absconding to avoid being served with such subpoena, the Plaintiff proceeded against him pursuant to the act of parliament made in the 5th George III. intituled " An Act for making Process in Courts of Equity effectual against those '• who abscond and cannot be found to be served therewith, or who " refuse to appear thereon," obtained a decree, whereby it was ordered and decreed, &c. ; that, pursuant to the said decree, the master made his report bearing date, &c. which stands absolutely confirmed by order of , and thereby certified that, &c. ; that by an order, dated, &c. (order of foreclosure) that the Plaintiff having found the Defendant, did, on , cause him to be served with the said decree, report, and order for confirming the said report and order (of foreclosure), as by affidavit app*^ars, notwithstanding- which the Defendant hath not ap- peared to the Plaintiff's bill, as by the six clerks' certificate appears, and therefore it was prayed, that the said decree, report, and orders of may, pursuant to the said act of parliament, stand absolutely confirmed against the Defendant, his executors and administrators, and all persons claiming or to claim by, from, or under him, them, or any of them, by virtue of any act done, or to be done, subsequent to the commencement of this suit, which, upon hearing of read, is ordered accordingly, ORDERS. 613 Order for a Certiorari to remove Cause out of the Mayor^s Court. Upon motion, &c. {imt, some time since, the Defendant exhibited his bill in the mayor's court of L. against the Plaintiff, to which an answer was put in, and the cause was afterwards heard, since which the Plamtiff hath brought his bill in this court, as by the six clerks' cer- tificate appears, and the Plaintiff hath given security to prove the sug- gestions of his bill within years, according to the course of the courts, as by the said certificate also appears. It was therefore prayed, that a writ of certiorari may issue to remove the said proceedings out of the said mayor's court into this court, which is ordered accord- ingly. Order to dissolve Injunotion on Demurrer being altoiced. Whereas the Plaintiff obtained an injunction for stay of Defendant's proceedings at law till answer, and other order to the contrary. Now, upon, &c. that the Defendant having put in a demurrer to the Plaintiff's whole bill, the said demurrer, on arguing, was allowed, and therefore it was prayed that the said injunction may be absolutely dissolved, which is ordered accordingly. Order for Capias in Withernam. Forasmuch, &c. that pursuant to an order of a writ de homine replc- giando, issued on the behalf of the said A. directed to the sheriff of , to replevy B., the wife of the said A., whom C, in the said order named, hath taken and detained, and that the said sheriff" hath re- turned upon such writ, that the said B. was essoined by the said C. to some place to him unknown, so that he could not replevy her. It is therefore ordered, that the said A. be at liberty to sue out a capias in withernam against said C. N. B. If the writ de homine replegiando be returned non est inventus, then a capias in withernam goes against his goods. Order for Commission on Master's Certificate. Upon motion, &c. that by the decree made on the hearing of this cause several accounts were directed to be taken by Mr. , for the better taking of which accounts the parties were to be examined on in- terrogatories, and to produce on oath, before the said master, all books, papers, and writings in their custody or power relating thereto, as the master should direct. In pursuance whereof the exhibited inter- rogatories before the said master, for the examination of, that it appears by the said master's certificate, bearing date, &c. that it will be neces- 614 OUDERS. sary to have a commission for that purpose, and therefore it was prayed that, &c. which, upon reading, &c. is ordered accordingly. Exceptions and further Directions opened separately. This cause coming on, &c. and tiie pleadings in the cause being then opened upon debate, &c. his Lordship did order and decree that, &c. that in pursuance of the said decree, the said master made his report, bear- ing date, &c. and thereby certified, tS:c. To which said report the took several exceptions, and the matter of the said exceptions coming on this present day to be argued before , and the said exceptions being opened, and the first being for that, &c. (and so through all the exceptions,) and this cause also coming on to be heard for further direc- tions, &c. before, &c. upon opening and debate, Ssc. Order for Time to answer Cross Bill after Defendant has answered Original Bill. Upon motion, &o. per querela, and Defendants in cross cause, it wa'^ ordered that the said Plaintid's having exhibited their bill in the ori- ginal cause against the Defendants in that cause, the said Defendants appeared thereto, and obtained an order, dated , for time to answer, and have exliibiled their cross bill against the Plaintifls in the original cause, to which they have appeared. It was therefore prayed that the Defendants in the cross cause may have a fortnight's time to put in their answer to the cross bill, after tiie Defendants in tlie cross cause shall have put in their answer to the original bill, which is ordered accord- ingly- Order for Habeas Corpus, Defendant not being able to give Security on Ne exeat regno. TJpon motion, &c. it was alleged that the Defendant hath been ar- rested by tlie sherifl' of upon a writ of ne exeat legno, whereon security is to be taken in the sum of £ but the Defendant is not able to give such security, and his books and papers are in , and he cannot put in his answer without inspecting the same, and there- fore it was prayed that a habeas corpus may be awarded, directed to the sheriff of , for him, at the return thereof, to bring the Defen- dant to tiie bar of this court, in order to his being turned over to the prison of the Fleet, which is ordered accordingly. fifibros Corpus to (iaoler of County Palatine of D. Upon motion, &c. it was alleged thnt an attachment having issued against the Defendant for non-payment of the sum of £ to the ORDERS. G15 Plaintifl' pursuant to an ordrr, dated , it appears by the certificate of gaoler or keeper of the gaol in the county palatine of D. that the Defendant is detained in Vhe said gaol. Whereupon, and upoii hearing an affidavit of read, it is ordered that a habeas rorpus cum causis do issue, directed to the gaoler or keeper of the said gaol, at the return thereof, to bring the Defendant to the bar of thi'i court to answer his contempt, and thereupon such further order shal'i be made as shall be just. Habeas Corpus to County Palatine of L. Upon motion, &c. that the Defendant being in contempt to an at- tachment with proclamation for want of his answer to the Plaintifl"'s bill, directed to tlie chancellor of the county palatine of L., or his deputy, it appears by the return thereof, that the said Defendant hath been taken thereon, and the said Defendant still persisting in his contempt, it is thereupon ordered, that a habeas corpus cum causis do issue, directed to the chancellor of the said county palatine, or his deputy, commanding him that he by writ of habeas corpus cum causis under the seal of the said county palatine, do command the sherifi' of the said county, at the return thereof, to bring the said Defendant to the bar of this court, to answer his said contempt, whereon such further order shall be made as shall be just. It is ordered, that the chancellor of the county palatine of L. do, within six days next after notice of this rule to be given to him, or his deputy there, peremptory to return the writ of issued between the parlies. It is ordered, that the sheriff of the county palatine of L. do, within six days after notice of this rule be given to his under-sheriff, peremptory return the mandate, directed to Imn by the chancellor of the county palatine of L. upon the writ of issued between the parties. Habeas Corpus on Application of Sheriff, Plaintiff not applying to bring Defendant up. Upon motion, &c. that it appears by the certificate of the said she- riff, that the Defendant was, on taken into the custody of the said sherift', and is now detained in the prison of the said town and county, by virtue of an attachment issued against the Defendant for breach of a writ of execution of an order, dated, &c. for payment of the sum of £ , and for no other cause whatsoever. And in default the Plaintiffs have not yet thought fit to call on the said sheriff for the return of the said writ of attachment. It was therefore prayed that a habeas corpus cum causis may issue, directed to the said sherifi] for him, at the 616 ORDERS. return thereof, to bring the Defendant to the bar of this court to answer his said contempt, which, upon hearing an affidavit of read, and the said certificate read, is ordered accordingly, and thereupon such fur- ther order shall be made as shall be just. Order for Injunction against Member of Parlimnent. Forasmuch, &c. that the Defendant, who is a member of parliament, having been served with a copy of the Plaintifl[''s bill, and a subpoena to appear to and answer the same, hath appeared accordingly, but hath not yet put in his answer thereto, though his time for so doing is expired, and yet in the mean time prosecutes the Plaintiff at law for the matters in the bill complained of, and in regard the Plaintiff would have been entitled to sue out process of contempt against the Defendant for want of his answer, in case he had not had privilege of parliament. It is thereupon ordered that, &c. Injunction to stay Proceedings in Execution at Chester. Upon motion, &c. that by an order, (order of reference,) that in pur- suance of the said order, the said master made his report, &c. (report;) and therefore it was prayed that an injunction may be awarded for stay of the Defendant's proceedings in the said court of exchequer at Chester, touching any of the matters here in question, until the further order of this court, which, upon reading an affidavit of this motion, is ordered accordingly. Injunction to deliver Possession and Deeds to the Plaintiff. Upon motion, &c. that by the decree made on the hearing of this cause, it was, among other things, ordered and decreed that the De- fendant should pay unto the Plaintiff the sum of £ and interest, together with his costs of this suit, to be taxed by the master, at such time and place as the master should direct, and in default thereof, that possession of the estate in question should be delivered to the Plaintifi to hold the same, until he was satisfied what should be reported due to him. That the said master, by his report, dated, &c. which stands ab- solutely confirmed, certified that, &c. that the said Defendant hath been served with a writ of execution of the said decree and report, and the Plaintiff attended on to receive the said sura of £ reported due to him as aforesaid ; but the same was not then, nor hath the same been since paid, as by affidavit appears, and the Defendant is in con- tempt to an attachment for non-payment of the said sum oi £ , and therefore it was prayod that an injunction may be awarded Xo put the ORDERS. 617 Plaintiff into possession of the said estate, pursuant to the said decree, \vhich is ordered accordingly. Injunction to deliver Possessio7i to Plaintiff, Defendant refusing. Upon motion, &c. it was alleged, that by the order made on the hear- ing of this cause, it was ordered that the Defendant should deliver pos- session of the estate in question, and all deeds and writings in his cus- tody or power relating thereto, to the Plaintiff. That the Defendant, who is in possession of tlie said estate, was served W ith a writ of execu- tion of the said order, and the Plaintiff required him to deliver posses- sion, which he refused to do, as by the affidavit appears ; and an attach- mfent having been made out against the said Defendant, it was therefore prayed that an injunction may be awarded against the stlid Defendant to enjoin him to deliver possession of the said estate, to the said Plaintiffj pursuant to the said decree, which, upon reading the affidavit, is ordered accordingly. Order to make Bonds of Submissioji Order of Court. Whereas the Plaintiff and Defendant have severally entered into bonds, &c. (recite bonds,) which said bonds were duly executed as by the affidavit of a subscribing witness thereto, now produced and read, appears. It is, on the motion of , ordered that the said bonds of submission, entered into as aforesaid, be made an order of this court, and that the said parties do submit to, and be finally concluded by the award which the said arbitrators shall make, pursuant to the said sub- mission, according to the statute in that case made and provided. Order* that Proceedings in Pdly Bag may he made a Concilium. Upon motion, &c. that the Defendant having put in a plea to Plain- tiff's declaration in the Petty Pag, the Plaintiff hath demurred to such plea. It was therefore prayed that the said proceedings may be made a concilium, and may stand in the paper of , to be argued be- fore on . which is ordered accordinglv. Order as to the Delircry of Deeds, a7id entering into Covenants for ilieir Production. Let such of the title-deeds and v/ritings as relate solely to the estate comprised in lot , and also such as relate to the same estate jointly with other estates of less value, be delivered fo , he submitting to produce the last-mentioned deeds and writings rtn rip*-pssary oeeasihSA 79 618 ORDERS. and to enter into covenants tor that purpose, and to give attested copies' thereof if required, at the expense of the party requiring the same ; and as to such of the title-deeds and writing:^ as relate to the estate com- prised in the said lot jointly with other estates of greater value, he is to have attested copies, if required, at the expense of the estates, and the persons entitled to such estates are to execute to hirn the like deed, or deeds of covenant to produce the same on necessary occasions; and in case any dispute shall arise between the parties, touching the copies of any particular deeds or writings, relating to the title, the master is to settle the same. Order that Defendant mai/ answer in Forciifn Language, and far Notari/ Public to translate the same. Notice to be given to Pluin- tijf's Clerk in Court. Upon motion, &c. that Plaintifl' having exhibited his bill into this Court against the Defendant who lives at , in the kingdom of , he hath appeared thereto, and hath obtained an order for a conamission for taking his answer at , and such commission halh issued accord- ingly. Tiiat the Defendant doth not understand the English language, and therefore it was prayed that the Defendant may be at liberty to swear his answer in the language, and that a notary public may be ap- pointed to translate the same into the English language, and that he may be sworn to the true translation thereof, and that such translation may be filed with the Defendant's other answer, wliich is ortlercd accord- ingly ; but notice hereof is first to be given to the Plainliffs clerk in court. Order for order (f House of Lords to he made order of Court. Whereas by an order of made by the Right Hon. the Lords Spiritual and Temporal in parliament assembled, after hearing counsel on the day of upon the petition and appeal of complaining of an order of this Court, dated it wa5 ordered and adjudged by the said Lords Spiritual and Temporal, that (jstatc order of House of Lords) now upon motion, &c. and upon pro- ducing the said order of the House of Lords, it was prayed that the said order of the House of Lords may be made an order of this Court, which, upon hearing of Mr. of counsel fur is ordered accord- ingly ; and it is hereby referred to Mr. one of the masters of this court to settle the issues in case the parties difibr about the same. ORDERS. 619 Order to produce a Person, pretended to he cdive at Church Porch^ pursuant to the Act, in Cases of reversionary Estates. Forasmuch, &c. that the said is entitled to the immediate reversion of after the death of who as the said hath good reason to believe is dead, and that his death is concealed by as by affidavit appears. It is thereupon ordered that the said having notice hereof, do produce the said for whose life the said estate is held,* to the said at the church-door of in the county of on the day of betwixt the hours of and of the clock, in the forenoon of the same day, according to the statute in that case made and provided, made in the sixth of Queen Anne, intituled " An act for the more effectual discovery of the deaths of persons pretended to be alive, to the prejudice of those who claim estates after their deaths. '"'t * If there are more lives than one, say, " or such of ihem as are now Kving." t It is necessary that three orders should be served — the first as above; the second to produce the person to commissioners to be named in the order ; the third declares he ought to be deemed dead. Order to see if Answer taken regularly or not. Forasmuch, &c. that the Defendant having obtained a commission for taking his answer to the Plaintiff's bill hath returned the same with- out giving notice to the Plaintiff of the time of taking such answer, which, as the Plaintiff is advised, is irregular. It is thereupon ordered, that it be referred to Mr. &c. to examine and certify whether the said Defendant's said answer be taken regularly or not. Refer Interrogatories, being leading. Forasmuch, &c. that Plaintiff having exhibited interrogatories for the examination of witnesses in this cause, the Defendant is advised that such interrogatories are leading. It is thereupon ordered that it be re- ferred to Mr. one, &c. to look into the said interrogatories, and certify whether the same be leading or not. Refer to see if Plaintiff proved suggestions in Certiorari Bill._ Upon motion, &c. that Plaintiff having brought his certiorari bill to remove a cause, wherein the now Defendant was Plaintiff, and the na\v Plaintiff was Defendant, from the Lord Mayor's Court, and Plaintiff having entered into a bond wifli security, according to the course of t!ic Court, to prove the suggestions of the said bill, wherein the same, limited for that purpose obtained an order, dated to enlarge. 620 ORDEKii. the time for a fortnight, which expires this day. That Piaintift' hath exhibited interrogatories, and examined witnesses, to prove the sugges- tions in his said bill, according to the said bond, and that the said depo- sitions of Plaintiff's witnesses be published forthwith, and that both sides be at liberty to take copies thereof, and that Plaintiff have days further time to procure the master's report. Special Election, Upon opening, &c. that the Defendant on obtained an order, that, &c. that the Plaintiff is advised to make his election, to proceed at law for and in this Corr: for and therefore it was prayed, that the Plaintiff may now be ?.t liberty to make his special election, notwithstanding the said order of , Whereupon, and upon hearing, Szc. it is ordered, that the Plaintiff do accpxding to his election no\v made in Court, &c. Order for Serjeant at Arms, on Appearance entered, and Answer re- ported insufficient. Upon motion, &c. that by an order, dated, &c. it was ordered (order to Serjeant at arms) that Defendant accordingly entered such his ap- pearance with the register, and put in his answer which hath been re- ported insufficient by Mr. &c. as by the said master's report, dated, &c. appears. That on, &c. the Defendant was served with a subpoena to make a better answer, notwithstanding which he hath not put in a further answer, though his time for so doing is expired. It was there- fore prayed that the serjeant at arms attending this Court may apprehend the Defendant and bring him to the bar of this Court, to answer his contempt, which is ordered accordingly, and thereupon such further order shall be made as shall be just. Sequestration, where Defendant appeared without being served. Upon motion, &c. that Defendant, who is a member of parliament hath appeared to the Plaintiff's bill, hut hath not put in his answer thereto, though his time for so doing is expired. It is thereupon order- ed, &c. (words of seq. nisii) Order for Service of Subpoena on Defendants Clerk hi Court may be good Service, Defendant being Abroad. Upon motion, &c. that Defendant having exhibited his original bill in this Court against Plaintiff jn this cause, Plaintiff appeared thereto, and ORDERS. 621 exhibited his cross bill against the said Defendant, and hath taken out process of subpoena to compel him to appear to and answer the same. That the said Defendant lives in parts beyond the seas, as by affidavit appears ; and therefore it was prayed, that service of said subpoena on the said Defendant's clerk in Ceurt may be deemed good service on the said Defendant, which upon reading the said affidavit is ordered ac- cordingly. Sequestration Nisi against Member of Farliament for Non-payment of Money. Upon motion, &c. that who is a member of parliament hath been served with a subpoena for payment of the sum of costs taxed, pur- suant to the decree in this cause ; but the said refuses to pay the said sura of ,£ as by the affidavit of now produced and read ap- pears. It is thereupon ordered that a commission of sequestration do issue, &c. (take usual words) until the said shall pay the said sum o( £ and this Court make other order to the contrary, unless, (fee. (nstial icords.) Order for a Notary Public to translate Proceedings and Exhibits, Upon motion, &c. that the Plaintiff having examined several witnesses in in this cause, several of the Plaintiff's exhibits and proceedings are written in the language ; and therefore it was prayed, that such of the said proceedings and exhibits as are wrote in the lan- guage may be delivered to a notary public in order to translate the said several proceedings and exhibits into the English language, that the said may be sworn to the true translation thereof, and that such trans- lation may be read at the hearing of this cause, which is ordered accord- ingly, saving all just exceptions. Witness to attend to be examined, or stand committed. Upon motion, &c. that is a material witness for the Plaintiff in tliis cause, and hath been served with a subpoena, returnable immediately, to attend and be examined as a witness for the Plaintiff in this cause, as by affidavit now produced and read appears, notwithstanding which the said hath not attended to be sworn find examined, as by the exa- miner's certificate now also produced and read appears. It is thereupon ordered that the said do, in four days after personal notice hereof, attend and be sworn, and examined as a witness for the Plaintiff in tiiis cause, or in default thereof, that the said do stand committed to the j^rison ei the Fleet. 622 ORDERS. Order for Costs of Reference to be taxed. Upon motion, &c. that by an order bearing date, Sic. it was ordered that, &c. in pursuance whereof the said master by his report, bearing date, &c. certified, &c. It is thereupon ordered that it be referred back io the said master to tax the Plaintiff his costs, occasioned by the said reference, which is ordered accordingly. Appeal, if from the whole Decree, in the Form folloioing. This cause coming, &c. and the pleadings in the cause being then read, and the scope of the bill being, &c. the Plaintiff by his bill for that purpose charging, &c. and the Defendant by his answer setting forth, &c. upon debate of the matter, &c. his Honor did order and decree, &c. with which said decree the conceiving himself ag- grieved, did, on prefer his petition of appeal unto setting forth, &c. and therefore praying, &c. Whereupon it was ordered, &c. that the said deposit being made, and the cause coming on this present day to be heard, accordingly on the said petition of appeal accordingly, before in the presence of counsel learned on both sides, arid the pleadings in the cause being again opened upon debate of the matter and hearing, &c. his Lordship dolh order, &c. If the appeal be from part only of the decree, state the petition of appeal only. Order for Discharge of Party from Sheriff's Custody, he being inte- rested in the Suit then before the Court. Complaint being this day made to the Right Hon. the Master of the Rolls by Mr. as counsel for the Plaintiffs in this cause, that on yesterday the the Plaintiff E. H. on leaving this court, when this cause was partly heard, was arrested,* and the said Plaintift' E. H. being present in court in custody of W. J. A, one of the officers of the sheriff of Middlesex, who arrested her, and the said Plaintiff being sworn and examined, and deposing that she is one of the Plaintiflk in this cause, and that on her return she was and before she got home she was arrested by the said W. J. A. by virtue of a warrant from the sheriff of Middlesex, at the suit of the Defendant D. R. for a debt of £ and the said warrant being produced in court, it is thereupon ordered that the said Plaintiff E. H. be forthwith dis- ^arged out of custody. * It is said that every parly has a right of privilege to go and hear his Own cause determined, and return home from court unmolested. ORDERS. 623 Order for Accoiaitant- General to tramfcr Orphan Stock. Let the accountant-general assign to the orphan-stock, stand- ing hi his name, in trust in this cause, and let the deep-pool, dated being an assignment of the said orphan-stock from to the said accountant-general, upon the trusts therein mentioned, and also a me- morandum note of the said assignment, dated the same day, signed by clerk to the City Remembrancer, which in pursuance of an order of were deposited in the bank with the'.J privity of the said accountant-general for the purposes in the said order mentioned, be de- livered out of the bank to the said Order for Sheriff's Officer to attend for arresting a Suitor while attend- ing the Cawt. Whereas Mr. L. as counsel for R. A. B. this day moved the Right Hon. the Lord High Chancellor of Great Britain, that the said R. A. B., who, on the day of , was arrested by J. L., the offi- cer for the sheriff of Middlesex, in an action at the suit of S. H. gen- tleman, might be discharged out of the custody of the said sheriff; for that the said R. A. B., at the lime of such arrest, was returning home from this court after his attendance as Plaintiff, on a motion made in a cause depending therein, wherein he was Plaintiff, and H. and others were Defendants ; or that the said J. L. might bring the said Mr. B. into this court, whereupon, and upon hearing an affidavit of the said R. A. B. read, his lordship doth order that the sheriff for the county of M. do attend with the said R. A. B. in this court to-morrow at the sit- ting thereof. Order directing Estates (directed to be sold by the Decree) to be sold bi/ Public Auction. It is ordered that the estates (directed by the said decree to be sold) be sold by public auction, by such person or persons, at such time or times, place or places, and in such manner as the said master shall appoint, to the best purchaser or purchasers that can be got for the same; and it is ordered that the biddings for the said estates be laid before the said raasr ter for his approbation. 0rder for Plaintiff to shctv Cause why Injunction should not be dis- solved, if Exceptions to Answer be over-ruled. Upon motion of Mr. H. of counsel on behalf of the Defendant, praying that in case the exceptions taken by the Plaintiff to the said Defendant's answer, should, on arguing thereof, or otherwise, be over- 624 ORDERS. ruled by the court, that the Plaintifl" might at the same time shew cause on the merits disclosed by the Defendant in his said answer, why the injunction formerly granted in this cause sliould not be dissolved. It is hereby ordered by the court as prayed. Order for a Trial at Bar by a Special Jury, and for a View, on a View of the Locus in Qito. Let Plaintiff, P. and Defendants, proceed to a trial at bar in the court of King's Bench, next term, or at such time as that court shall think fit, by a special jury of the county of S. on this issue, whether, &c. And the sheriff of the county of S. is to attend the master with his book of freeholders, whereout the names of forty-eight persons are to be taken, and each is to be at liberty to strike out twelve, and the re- maining twenty-four are to stand, and be returned on the jury, and six of the jury are to have a view of the premises. And the Plaintiff P. is to be Plaintiff at law, and the master is to set- tle the issue if the parties differ. And to the end said trial may be had, Defendants are forthwith t© name an attorney to accept a declaration to appear and plead to issue. And let both sides prdducc before the master all deeds, &c. and either side is to be at liberty to inspect and take copies thereof at their own expense. And such of them as eitlier side shall give notice for are to be pro- ■duced at said trial. And after said trial shall be had, either party is to be at liberty to apply to the court for further directions. Order for a Trial at Late. Doth decree that the parties do proceed to a trial at law in the court of King's Bench, in London, at the sittings in the next term, or at such other time as the lord chief justice of that court shall appoint, in action of trover to be brought by Plaintiff against the Defendant T. for packs of woollens in question in this cause, and the said W. T. is to name an attorney, and appear and accept a declaration, and plead the general issue; and in order that tlie property of said goods may be tried on such trial, said Defendant is to admit that the goods in question came to his hands, and also to admit a demand and refusal. And it is further ordered, that all proceedings under said commission, and all other book?, &c. be produced, cVc. on or before next, as said master shall direct, and either side is to be at liberty to take topics thereof at their own expense. OKDER^. 0^ And it IS ordered that such copies tliercof ha produced at trial as either side desire, and give notice thereof in writing. Further considera- tion until after trial. 0}-der for Trial at Law In Ejectment, and for Defendants to confess Lease, Entry, and Ouster. Let all parties proceed to a trial at law at the next assizes for the county of S. in an ejectment upon the demise of the now Plaintifl', aiwi Defendants to name an nllorney to appear to the ejectment, and to enter into the common rule to confess lease, entry, and ouster. And let the original lease. Stq.. all deeds, Szc, bp produced, and reserve all, &c. Order for a Trial at Law to ascertain whether and when a Person be- came Banhrupt. Let the parties proceed to a trial at law upon this issue, whether M. P. did, on or before commit any act of banhruptcy within the intent and meaning of the several statutes relating to bankrupts, or any of them, and if the jury shall find he did not commit any act of bankruptcy on or before that day, and that he committed an act of bank- i'uptcy at any time afterwards, in such case the particular time when hp committed such act of bankruptcy is to !)e indorsed on the^^os^ea. And Plaintiff here is to be Plaintifi'at law, &:c. f^c. Order for a Trial at Law. Doth order that the parties do proceed to a trial at law at the next assizes for die county of Y. upon the following issues, whe- ther, &c. And it is further ordered, tliat Plaintlft'. the mayor and commonalty of the city of Y. be Plaintiff at law, and it is hereby referred to Mr. &c. to settle the issues in case the parties difier about the same ; and to the end such trial may be had, Defendants are forthwith to name an at- torney to accept a declaration, and ap|)ear and plead to issue. And in case on said trial the jury shall liad any particular rightj though varying in some circumstances from the issues as laid, it is or- dered that the same be indorsed on the postea. Further directions reserved, &c. ; liberty for either party to apply. Order to retain Bill, with Liberty to bring Action at Law. Let the Plaintiff's bill be retained for months, and in the mean- lime Plaintiff, is to be at liberty to bring his action against Defendant 80 G26 ORDERS. for whatis due to' liiin for the matters complained of in bill, and the same is to be tried at the next assizes for the county of S. And both sides are to produce before Mr S. one, iSrc. upon oath, all books, &c. on or before, &:c. either side to take copies, Sec. ; and such of them as either side shall give notice for are to be produced at said trial. And in default of Plaintiff's bringing such actions, and proceeding to trial by the time aforesaid, then it is ordered, that Plaintiff's bill do stand dismissed out of this court, with costs, to be taxed by said master. But in case Plaintiff shall bring such action, and proceed to trial as aforesaid, then the court will reserve the consideration of all fur- ther, &c. Order recommending a Prosecution for Forgery. His Lordship declared, he was of opinion that the account produced befoi'e him, dated, &c. is a forged account, and recommended it to Plaintiff to prosecute said Defendant for forging said account, or pub- lishing same, knowing it to be forged. And said account being filed in the ofiice of the register for filing affidavits in this court, annexed to the affidavit made by said J. H. it is ordered, that same be carefully preserved in tiie affidavit-office, to the end it may be forthcoming in case any prosecution shall be carried on against the said Defendant, or any other person forging the same. And that the proper officer in the said office do attend with the said account, on any trial to be had for such forgery, being paid his fees for such attendance. Order to lay out Residue of persotial Estate in Vurchaae of Lands, and in the mean time in South Sea Annuities, and LUerest to go as Rent of Lands udien purchased. Let the clear surplus of such personal estate be with the approbation of the master laid out in the purchase of good lands and heritage in that part of Great Britain called S. pursuant to the directions of said will, and let such lands and heritages, when purchased, be settled with the approbation of said master upon siicli persons, and to such uses, intents, and purposes, and with the same remainders over, and upon the same trusts, and under the same restrictions, and subject to the pay- ment of the same sum or sums of money as are mentioned and com- prised in the, &c. In the mean time and until such purchase can be made, let such surplus of the said testator's estate be placed out at ORDERS. 627 interest, from time to time, on government, or real secarities, with tlie approbation of the master, in the names of, &c. they declaring the trusts thereof according to the said will, and let the interest and divi- dends arising thereon be paid and applied to such persons, and to the same uses, intt^nts, and purposes, as the lands and heritages ought to be according to the said testator's will. Order to continue Securities, tvJiich the Master shall approve, and to put others in Suit. Let the master look into the securities on which any part of the said testator's personal estate is invested ; and let such part thereof as the master shall approve of be continued ; and let the money due on such part thereof as the master shall think unfit to be continued be called in ; and let the master appoint a proper person for that purpose, and make him a reasonable allowance in respect thereof; and let such of the said securities as the master shall think proper to be put in suit accord- ingly in the names of said executors, they being indemnified out of said estate. Order where Infants' Money has heen laid out in a Purchase, such pur- chased Estates to be considered as personal Estate. Let the master's report be confirmed, and let the estates therein men- tioned be conveyed to trustees, to be approved of by said master, in trust for PlaintifT, Sir B. B. his executors, administrators, and assigns, and let such conveyances be settled by said master, and declare that said trustees are to stand seised of said estates in trust for said Plaintiff, Sir B. B. his executors, administrators, and assigns, as part of his personal estate ; and in case Plaintiff shall live to attain the age of twenty-one years, then and in such case, let the trustees convey and assure the said promises to Plaintiff, his heirs and assigns for ever. Order to continue such Securities as the Master shall approve, and put ot Iters in Suit. And let the master inquire what part of the said testator's estate is standing out upon securities, and what debts are owing to the^'ai" estate, and whether any and which of them, are proper to be called in or con- tinued ; and let such of them as the master shall find are proper to h;tors of the Prerogative Court to have the same delivered out ac- cordingly, but they refuse to deliver out same on any security, but insist to send a messenger of their own with it, whirh will put the parties to a considerable expense ; and in regard Testator's estate is not sufficient for payment it was therefore prayed that the registers of the Prerogative Court, or their deputy, may forthwith deliver out said original will, in order that same may be proved at said commission, upon giving suf- ficient security to bring back and re-deliver same unto said office, in six weeks Whereupon, and upon hearing Mr. Solicitor-General, of coun- sel for the register of the Prerogative Court, an order in a cause of L., against D., dated ; an order in a cause, B. against B., dated , and an order S. against B. dated , read, and what was alleged by the counsel for said parties, his Lordship doth order, that said original will be delivered oat by the proper officer of the Prerogative Court, to a pro- per person to be named by Plaintiffs' and Defendants" said executors and devisees under said will, in order to be proved at said commission, such person first giving security to be approved of by the judge of the Prero- gative Court, to return same in six weeks from the delivery thereof to him. Order toiicliiiig the Management of Estates in the West Indies, and the Aj)i)ointment of a Receiver. THE CASE. R. C. by will, devises a plantation at St. C, to his eldest son D., for life, with limitations to other children, and directs, that the clear produce of his plantation, till his debts and legacies should be paid, to be from time to time shipped in such sliips as Defendant C, his heirs and assigns, should direct, and consigned to him, and that his son should send an ac- count every year of the produce, and if they did not, then Defendant C, with the consent of his trustees, w as to put an overseer on the estate. The bill was brought against tlte trustees and sons, for an account of the rents and profits, and that an overseer or receiver might be appointed of the estate. The decree referred it to the master, to appoint a proper person in L., to whom the Defendant C. should consign and send over the profits of the plantation and houses in question to be disposed of, according to Testator's will, and Defendant C. was accordingly, from time to time, ORDERS. 631 to consign and send over the profits to such person so to be appointed, and R. S. was appointed consignee. Order. Let R. S., the consignee, approved by the master, twice in every year, transmit to Defendant C. a true account of the sugars and other produce of the plantation, consigned to and received by him upon the respective consignments, and of the sales thereof; and let said R. S. make insurances upon the sugars and other produce of the plantation, that shall be consigned to him, in such manner as shall be reasonable, with the approbation of Defendant D. C, or of such person as h«* shall ap- jwint, and that the charges thereof be paid out of the money arising by the sale ; and let said S. transmit over from the said plantation to D. C.'s attorney at St. C. such stores, provisions, and other effects, for the ne- cessary use and consumption of the said estate, as said R. C. shall, by letter, from time to time, desire, with the approbation of the master. And let Defendant C. deliver over to said R. S. an inventory of the ne- groes, mills, and utensils, now upon the plantation, and let said R. S. pay or remit to the said R. C. such sums of money as shall be reasonably laid out by said C. in negroes, utensils, cattle, and repairs upon the plan- tation to be ascertained by an account to be sent from time to time by said C. to be verified by affidavit, whicii sums are to be settled by the master, if the parties differ. And let the said S. pass his accounts an- nually before the master, and pay what shall appear to be due from him, on the balance of his account, from time to time, into the bank, with the privily of the Accountant-General of this Court, &:c. Another. Let It be referred to the master to approve of a proper person in the island of B., to manage the Plaintiff's, the infant's, estate there, and re- ceive the rents and profits thereof, and to remit same over to Defendants in E.,in trust for Plaintiff ; and v/hat shall be from time to time so remitted by such person, so to be approved of as aforesaid, to Defendants, is, after a deduction of what shall be allowed for Plaintiff's maintenance, to be placed out at interest, &c. Let it be referred to the master to approve of a proper person to be appointed guardian of the person and Rotate of Plaintiff, E. O., the in- fant and he is to state same to the Court, and thereupon such further order shall be made relating thereto as shall be just. And let the master appoint one or more proper person or persons in the island of B. to manage said Plaintiff's, the infant's, estate there, and to receive the rents, produce, and profits thereof, and he or they is or are 032 ORDKUS. (o remit same to a proper person in L. to be approved of by the raastei' for tliat purpose. And the said master is to make such person, to whom the same shall be so remitted, a reasonable allowance in resi)ect thereof; but such person is first to give security to be ap|)roved of by the master, daily to account for and pay what he shall so receive by such remittance, as this Court shall direct. Order appointing an Interpreter for examining a Witness who did not understand English . Upon consideration this day had by the rigiit honorable the Master of the Rolls, of the humble petition of the Piaintift', stating (among other things) that this cause is at issue, antl that J. L. P. of, Sec. is a material witness for the Plaintiff, and that the said J. L. P. irpeaks the French language, but does not understand the English language, so that the Plaintiff cannot have the benefit of his testimony without the assistance of an interpreter. And therefore it was prayed, that his Honor doth ac- cordingly order that B. B. of, &c. be appointed interpreter to the said J. L. P. on his being examined as a witness in this cause, on the behalf of the petitioner. And that the said B. B. be sworn, truly to interpret the oath to be administered to the said J. L. P. and also tiie interroga- tories on which he shall be examined, and his depositions to such inter- rogatories, and likewise to keep such depositions secret, until publication shall duly pass in this cause, of which notice is first to be given to the De- fendant's clerk in Court. Order referring Matters in question to Arbitration to confess Judg- ment in Action. Whereas Mr. Solicitor-General, of counsel for the Plainlifl", this day moved and offered divers reasons unto the right honorable the r.ord High Chancellor of Great Britain, that all matters in difference in this cause between the Plaintiff and Defendant might be referred to arbitration in the presence of Mr. M. of counsel for the Defendant, uho consented thereto. Whereupon his Lordship doth, by consent, order that the Plaintiff do confess judgment in the action at law connnenced against him by the Defendant for the sum of j£^ the penalty in the bond in the pleadings in this cause mentioned, and on which the said action is brought, and by the like consent it is ordered that it be referred to C. K. of L., merchant, named on the part of the Defendant, and to G. R. of, &c. named on the part of the Plaintifl", and to I. A. of, &c. nominated by the said C. K. and (i. A. or to any two of the said arbitrators, to take the accounts in question in this cause between the said Defendant and th« ORDERS. 633 Plaintiff and I. M. tbo younger, as partners in the pleadings of this cause named, and also between the Defendant and the PlaintilVseparately, aiid to ascertain and award the balance due to any or either of the said ^ parties, and to award and direct the payment thereof, the said Defendant hereby consenting to confess a judgment in the Court of King's Bench, for such balance, if. any, as may be awarded and directed to be paid by him to the Plaintiff and I. M. the younger, or to the Plaintiff. And by the like consent it is ordered, that in case a balance shall by the said award be found due from the said Defendant, then tlie said judgment against the Plaintiff shall be vacated, and the said arbitrators, or any two of them, are to make their award in writing, touching the matters referred to them, on or before, &c. with liberty for any or either of the parties to apply to the Court from time to time to enlarge the time for the arbitra- tors making their said award as there shall be occasion ; the Plaintift and Defendant hereby agreeing to consent from lime to time to such en- largement thereof, as the Court shall think reasonable. And by the like consent it is ordered, that the said award of the said arbitrators, or any two of them, to be made in writing as aforesaid, be final and conclusive be- tween the parties. And by the like consent no exceptions are to be taken to the said award, but either party is to be at liberty to apply to the Court, to set aside the same as they shall be advised. And by the like consent it is ordered, that all books, bonds, agreements, deeds, securities, bills of exchange, bills of parcels, invoices, policies of insurance, receipts, letters, accounts of sales, and all other vouchers, papers, and writings in the cus- tody or power of either of the parties relating to the matters in question in this cause, be produced before the said arbitrators as tliey shall direct, to be ascertained by the oaths of the party producing the same, and the parties are to be examined, &c, and are to be sworn before one of the masters of this Court. And by the like consent, no bill or bills in eqiiil}' is or are to be filed, or any action or actions brought or prosecuted against the said arbitrators, or any or eillier of them, for any matter or thing they shall do in or about, or touching the matters hereby referred to them. And by the like consent it is ordered, that the injunction granted in this cause be continued to stay the Defendant from proceeding at liw against the Plaintiff, for and touching any of the matters in question in this cause until the further order of this Court. And the costs of the action at law, and in this Court, are to abide the event of the said refer- ence, and to be paid to the party in whose favor a balnnce shall be awarded. And by the like consent the costs of the said reference are to be paid in the discretion of the said arbitrators, or auy two of tbeni, who are to award or direct by whom, and to whom, and in what man- ner the some slinll be paid, including a compensation to be made to tiK- 81 634 ORDERS. said arbilrators for tlieir trouble, and the charges and expenses attending the slating an account or accounts, and preparing the said award. Or'ler of Reference to Arbitrator, tvho is to examine upon Oath. Costx to he in his Discretion, and no bills to be filed against him as Arbi- trator. His Lordship doth, by consent order, that all matters in difference be- t\ve"n the Plaintifls and Defendants in this cause, be referred to the award and determination of I. H. of &c. esq. so that he shall make and publi/ih his award, in writing, of and concerning the premises in question, on or before '^ now next ensuing, or on or before such further time a> liereinafter mentioned. Ami that the said parties do stand to, abide by, p^'i.'orm, and fultil the award which the said arbitrator shall so make of a;id concerning the premises. And by the like consent it is ordered, that the said arbitrator is to be at liberty to examine upon oath, or upon interrogatories, or otherwise at his discretion, the said Plaintiffs and De- fendants, iM- any of them, or any other person or persons who shall be produced as a witness or witnesses before him by either party, such Plaintiffs and Defendants, or other person or persons being sworn before one of the masters of this Court, or before a master extraordinary in the country, if there shall be occasion. And the said parties are to produce before the said arbitrator, upon oath if required, all deeds, instruments, books, papers, writings, and accounts, in their, or any, or either of their custody or power, touching the matters in question, or any of them, as the said arbitrator shall direct. And by the like consent it is ordered that the costs, of this suit, and also of the said reference and award, and all other costs, charges and expenses attending or relating to the matters in dif- ference between the said parties, or either of them, shall be in the dis- cretion of the said arbitrator, and shall be paid in such manner, and by whom, and to whom, and at such time or limes as shall be directed by his award. And by tlie like consent it is ordered that the said arbitrator shall be at liberty, by writing under His hand, to enlarge the time for making his award from time to time as he shall see occasion ; and that the said arbitrator may, if he thinks fit, proceed ex parte in the said reference in case of the refusal or neglect of any of the said parties to attend him thereon, after reasonable notice in that behalf. And by the like consent it is ordered, that no bills or bill is or are to be filed in any court of equity, by any or either of the said parties, against the said arbitrator for any matter or thing he shall do in, about, or touching the roalters to him hereby referred j and any or either of the said parties ORDERS. 635 are or is to be at liberty to apply to this Court to have the said award made an order of this Court. Order, upon a Petition, for the Sale of Estates. It was ordered, on the consent of the parties therein mentioned, that the said estate should be sold, before the master, touether, or in parrels, as the said master should think fit, and all proper parties were to join, as the said master should direct. And in order to the said sale, all deeds and writings in ihe custody or power of any of the parties relating thereto were to be produced before the said master upon oath; and it was ordered, that the money arising by such sale should be paid by the purchaser or purchasers into the Bank, in the name and with the privity of the Accountant-General of this Court, to be there placed to the credit of the said cause, subject to the further order of this Court. And it was further ordered, that S. T., &c. the petitioners, should be at liberty to proceed in the said suit in the names of the Plaintiff A. S., &c. the petitioners, indemnifying them against all costs that might be ocea- sioned thereby. 636 SECT. IV. AFFIDAVITS. AFFIDAVITS arc usually for certifjiug tlie service of process, or other matters touching the proceedings in a cause ; and generally where any motion or petition is made, that is not of course an affidavit of the facts alleged is necessary. The time, place of residence, and also the title of every person who makes an affidavit ought to be inserted therein ; and it ought to set forth the matter of fact only, which the party intends to prove thereby, and not any of tlie merits of the cause. And to all affidavits sworn in this court the deponent must sio;n his name or mark on the left hand side of the affidavit, and the jurat on the right side. Where a whole petition was recited in an affidavit of service, the costs were ordered out of the attorney's pocket. (1 Atk. 139.) The affidavit must be true in substance, with all neces- sary circumstances of time, place, manner, and the other material incidents, and must also be sufficient to sustain the case made by the petition, or motion of which it is the ground work, so it should be pertinent and material. (Hind. 461.) Not swearing expressly to Avords sjioken, but adding, — " to that effect is a proper caution in an affidavit." (2 Atk. 60.) AFFIDAVITS. 637 If the Plaintiff's name, the court, the return of tlie sub- poena, the manner of service, or any thing material, be omitted in the affidavit, no attachment must issue upon it for non-appearance, and so of the service of other process, and of orders, &:c. ; for till a due service, &c. be shown, no contempt appears to the court. In an affidavit of notice, it is not enough to say, that notice was given, or the copy delivered to the party's clerk in court, but his name must also be mentioned that it may appear with certainty ; and it must say, " notice in writ- ing," or words to that effect, and if he who serves the notice does not know that the person on whom it is served is the party's clerk in court, he must say, "as he is credi- bly informed, and verily believes," first taking care that he receives information accordingly. But if a notice be left at the clerk in court's seat with his clerk or agent, such clerk or agent need not be named. An affidavit of several persons by the manner of wording it may be made either joint and several, or joint or seve- ral ; and great care and exactness should be observed in drawing affidavits. They ought to be fairly wrote in one hand, without blots or interlineations of any words of sub- stance ; otherwise the master may refuse to accept them ; or if he does, the register of affidavits, or his deputy, may refuse to file them ; and no use can be made thereof in court. (Vi(ie Old, Chan. 15. 18. and 92.) 638 AFFIDAVITS. Affidavit that the Plaintiff had Writings but hath lust tJiem, proper to be annexed to a Bill. Between A. B Complainant, and C. D. and others, . Defendants. The said Complainant raaketh oath, that some time since, to wit, on, &c. last, the writings now sued for in this cause, were in his, this deponent's custody and possession, but since the said lime, he, this de- ponent, hath accidentally lost them; and this deponent further saith, that he doth not know where the said writings are, unless they are in the hands or custody of the said Defendants, some or one of them, or else that the said writings are now, or late were in the custody of the said Defendant, J. K. as he is credibly informed and verily believes, &c. A. B. Sworn, &c. Affidavit of having committed Waste. Between A. B Plaintiff, and CD Defendant. A. B. the Complainant, maketh oath, that C. D, the Defendant in this cause, on, &c. last past, did pull down and destroy part of the house, and out-houses, &c. to which he, this deponent, hath lawful title, being seised in fee of the said estate and premises in question, as this deponent is advised and believes, and for which he is now prosecut- ing the Defendant, and that the said C. D. did also fell and cut down several timber trees, upon the lands belonging to the same, and conti- nues to commit other waste and spoil, in and upon the said estate of this deponent, to his great loss and damage. A. B. Sworn, &c. Affidavit by a Quaker. In Chancery. In the matter of the trustees of the will of J. G., deceased. W. H., of, &c. surveyor, one of the people called Quakers, maketh affirmation, and saith, that he, this affirmant, was, in or about the month of , by sir T. C, &c. &c. to survey a certain messuage or tenement, situate, &c. then in the occupation of, &c. and then, which this aflirmant was informed, was on lease to them for a term of years, which would expire at , at the clear annual rent AFFIDAVITS. 639 of . And Ihis affirmant saith, that he did accordinely survey the said premises, wliich consisted of a messuage or dwelling house, built of brick or timber, &c. and this deponent found that the said buildings thereon were very old and decayed, and the greater part of them not capable of being substantially repaired ; and it appeared to this affirm- ant, that if Messrs O. would agree to lay out the sum of £ in erecting new and substantial buildings on the scite of part of the said premises, and in repairing such parts thereof as were capalile of repair, and would surrender the existing lease and take a new lease thereof, for the term of years, at the clear yearly rent of £ , that it would be as beneficial to all persons interested in the said premises, as could reasonably be expected. And this affirmant saith, tiiat, in his opinion, it would not have been prudent to delay making a new agree- ment until the expiration of the old !ea47 tiff's bill accordingly, and the said Defendant A. B. slill persisting in his contempt, whereupon, and upon debate, &:c. Decree to a Bill hy Creditors for the Application of Testatur^s personal Estate. Whereupon, &'c. his Honor was pleased to order and decree, that it should be referred to Mr. S., one of the masters of this honorable court, to take an account of what was due to the PlaintilTs, and to all other the creditors of the said Testator A. I, and of his funeral ex- penses, and to compute interest on such of his debts as carried interest, after the rate of interest they respectively carried ; and the said master was to cause an advertisement to be published in the London Gazette, and such other public papers as he should think proper, for the creditors of the said Testator to come in before him and prove their debts, and he was to fix a peremptory day for that purpose ; and such of them who should not come in and prove their debts, by the time so to be limited, were to be excluded the benefit of the said decree; but such persons, not parties to the said suit, who should come in before the said master to prove their debts, were, before they should be admitted creditors, to contribute to Plaintifis their proportion of the expense of the said suit, to be settled by the said master ; and it was ordered, that the said mas- ter should also take an account of the said Testator's personal estate come to the hands of the said C. I., his executrix, or to the hands of any other person or persons by her order, or for her use, and the said Testator's personal estate was to be applied in payment of his debts and Ameral expenses, in a course of administration ; and for the better taking of the said accounts, the usual directions were given. u4 common Decree of Foreclosure. His Lordship doth order and decree, that it be referred to JMr. E., one, &c. to see what is due for principal and interest on his mortgage, and to tax him his costs of this suit, and the Defendant to pay unto the Plaintiff what shall be reported due to him for such principal, interest, and costs, within after the said master shall have made his report, at such time and place as the said master shall appoint; and thereupon the said Plaintiff to re-convey the said mortgaged premises, free and clear of all incumbrances done by him, or any person claiming from, by, or under him, and deUver up, upon oath, unto the Defendant, or to whom he shall appoint, all deeds and writings in his custody or power relating thereto ; but in default of the said Defendant paying unto the said Plaintiff such principal, interest, and costs as aforesaid, by the 648 DECREES. time aforesaid, the said Defendant is from thenceforth, to stand abso- lutely debarred and foreclosed of and from all equity of redemption, of, in, and to the said mortgaged premises. Decree of Redemption loTierc the Mortgagee had been for Years in Possession. His Honor doth order and decree, that it be referred to IMr. H., one, &c. to take an account of what is due to the Defendants, for principal and interest, on the mortgage in the pleadings mentioned, dated and tax them their costs of this suit ; and in taking the said account, the said master is to consider the interest due on the said mort- gage on the , as amounting to the sum o{ £ , And it is ordered, that the said master do also take an account of the rents and profits of the said mortgaged premises received by the De- fendants, or any of them, or by any other person or persons by their or any of their order, or for their or any of their use, since the said , or which, without their wilful default, might have received thereout. And it is further ordered, that what shall be coming on the said account of rents and profits be deducted out of what shall be found due to the Defendants for principal, interest, and costs as afore- said ; and in case the said master shall find the Defendants, or any of them, have been in possession of, and held the said premises, as owners or owner thereof, then the said master is to set a rent thereon, and take the account accordingly, and upon the Plaintifis paying to the Defendants what shall be found to be remaining due to them for principal, interest, and costs aforesaid, within after the said master shall have made his report at such time and place as the said master shall appoint. It is further ordered, that the said Defendants do re-assign the said mortgaged premises, free and clear of and from all incumbrances done by them, or any person claiming by, from, or under them, and de- liver up all deeds and writings in their custody or power relating thereto to the Plaintiff; but in default of the Plaintifis paying unto the De- fendants such principal, interest, and costs as aforesaid, by the time aforesaid, the Plaintiffs' bill is to stand from thenceforth dismissed out of this Court with costs, to be taxed by the said master ; and for the better taking the said accounts, the parties are to produce, before the master, all deeds, &:c. and are to be examined, ^c. and in taking the said ac- counts, he is to make unto the parties all just allowances, and particu- larly for any necessaiy repairs and lasting improvements which have been made by the Defendants, or any of them, on the said mortgaged pre- mises, since the said , uiul any of the parlies are t» be at liberty to apply as there shall be occasion. DECREES. 849 Decree for a Partition — Infants to have a Day to gJieio Cause. Let a commission issue to commissioners to be therein named, to make partition of the estate in question, vvho are to take the depositions of witnesses to be examined by them, in writing, and return the same with said commission, and let the same be divided into moieties, and set out in severahy, whereof declare one moiety to belong to Mr. N. and the other moiety to Plaintifl' Sir W. M., and let the respective parlies con- vey their several moieties to each other, to hold in severahy, according to the respective undivided moieties thereof, and let the master settle the conveyances in case the parties differ about the same. And until such conveyances shall be made, let the several parties generally hold and enjoy their respective divided moieties against each other, or any claiming under them. And let said Defendant, Miss N. an infant, execute the conveyance before directed to be executed by her, unless she, on being served with a subpoena, shall, within months after she shall attain her age of twenty-one years, shew unto the Court good cause to the contrary. Decree for a Partition of an Advmvson. Declare, that Plaintiff is entitled to have a partition of the advowson of the vicarage of the parish church of W. in K., into moieties, to pie«ent by alternate turns, and decree that a parthion be accordingly made thereof, in moieties between Plaintiff and Defendant, E. S., devisee in the will of J. S. And for making such partition the Plaintiff and Defendant E. S. are mutually to execute conveyances lo each other, so that Plaintiff may hold one moiety of the advowson to him and his heirs, and Defendant E. S. may hold the other moiety to her and her heirs, as tenants in common, in se- veralty respectively. And in such conveyance let a clause be inserted, that the Plaintiff and his heirs, and Defendant S. and her heirs shall present to said vicarage by alternate turns ; and if the parties differ the master is to settle the conveyances, and the charges of the conveyances are to be borne equally between the Plaintiff and Defendant E. S. And it appearing in the cause that J. S., under whom Defendant E. S. claims, hath since the agreement for the partition or division of the pre- mises, presented upon the last avoidance ; it is ordered and decreed, that the Plaintiff do present on the next avoidance, being the first turn from this time. And it is further ordered, that the Plaintiff's bill, as against the De- fendant, the heir at law of the said J. S., be dismissed out of this Court, 83 650 DECUEES. with costs, according to the course of the Couii, bin his Loiu- ship does not think fit to give>iiy costs as between Plaintiff and Defend- ant E. S. Decree opening stated Accounts, and directing general Accounts. His Lordship doth declare that the three stated accounts, dated, &c. ought to be opened and set aside, and doth order and decree the same accordingly ; and it is hereby referred to Mr. , one &c. to take a general account of all dealings and transactions between Plaintiffs, or either of them, and Defendants^ and also of the value of any timber felled and taken by Defendants from off Plaintiff 's estate, in the taking of which account the master is to make unto all parlies all just allow- ances ; and, for the better taking the said account all parties are to be examined upon interrogatories, and produce all books and papers in their custody or power relating thereto, upon oath, before the said master, as the said master shall direct. And it is ordered and decreed, that Defendants do pay to the Plain- tiffs their costs, for as much of the cause as relates to the setting aside the said stated account, to be taxed by the said nmster, and his Lord- ship doth reserve the consideration of the rest of the costs of this suit until after the said master shall have made his report ; and the said parties are to be at liberty to apply to the Court as occasion :>hall re- quire. Decree to set out Dower, and to account for oue.-tliinl of the Rents and Profits of the Estate accrued since the Death of the Husband. His Lordship doth order that it be referred to the master to inqune what freehold lands the said S. M. died seised of, wherein the Plaintiff B. M. is dowable, and also to inquire what copyhold or customary lands the said S. M. died seised of, wherein Plaintiff B. M. is entitled to dower, or any other estate by the custom of the manor wherein the said copyhold or customary lands, or any of them, do He. And that the said master do assign to Plaintiff B. her dower in such freehold lands and tenements, and also her dower and widow's estate in such customary or copyhold lands and tenements, and the said master is to assign and set out particular lands and tenements for that purpose. And after the said lands and tenemonts shall be set out and as- certained, it is ordered, that llie Defendants do deliver possession to Plaintiff B. of the lands and tenements that shall be so set out and as- certained for the said dower or widow's estate of Plaintiff B. and the tenants thereof are to attorn, and pay (heir rents to the said Plaintiff B. DECREES. 6ol And it is ordered and decreed, that tli<; master do take an account of the rents and profits of the said freehold and copyliold, or customary lands and tenements, whereof tlie said S. M. died seised, accrued since the death of tlie said S. M., which have been received by the said De- fendant, or by any other person by his order, or for liis use. And that one-tl)ird part of what shall be coming on said account of rents and profits of such freehold lands and tenements is to be paid to Plaintifi'B. by the said Defendant, in respect of her dower, out of such lands and tenements, and such part of what shall be coming on said account of rents and profits of the said copyhold or customary lands and tenements as she shall appear to be entitled to in respect of her said dower, or other widow's estate in such copyhold or customary lands aiid tenements is to be paid by the said PlaintiflfB. to the said Detendant. And for the better clearing of the account, and discovery of the mat- ters aforesaid, the said Defendant is to produce before the said master, upon oaii), all deeds, writings, papers, and books of account in iiis custody or power, relating to the matters in question, and both siJes are to be examined upon interrogatories as the said master shall direct ; and the said master is to make unto both sides all just allowances. And it is ordered that Defendants do pay unto Plaintiff C. M, her costs of this suit to this time, to be taxed by the said master, of which the said master is to make a separate report ; and his Lordship dolh re- serve the consideration of subsequent costs, as between the Plaintill' B. and Defendants, until the master shall have made his report. And it being declared by the counsel for Plaintiff, that they do intend to controvert the probate of the will of the said S. M., insisted on by the said Defendant in the Ecclesiastical Court, his Lordship doth reserve liberty to any of the parties to apply to the Court for further directions, in respect of any other demands made by the bill, in respect either to the real or personal estate of said S. M. as occasion shall require. Decree to covfrm Jointure hij Consent, the Lands Juiving been specified in the SettJpinatt. And the Plaintiff, Sir W. A. now offering to confirm the Defendant C. A. in the several estates settled upon her in jointure by the deeds, dated, &^. Decree that Plaintiff, Sir W. A., do confirm the jointure of said De- fendant C. A. in all the said estates as the master shall direct ; and let the master settle deeds or assurances for the confirmation of such jointure, in case the parties differ about the same. And after such jointure shall be confirmed as aforesaid, let Defendant C. A. produce, before the said master, upon oath, all deeds and writings 652 DECREES. in her custody or power relating to the several estates comprised in the settlement, dated, &c. ; and reserve the consideration of all further directions until after the deeds and writings produced. Decree to set out Jointure — Jointress entitled in Equity only — Master to set it out. Declare that Plaintiff is entitled in equity to have a jointure oi £ a year made good to her out of the estate in question, according to the settlement, &c. ; and therefore refer it to the master to set out and allot so much of the lands and premises comprised in the said settlement of, &c. as shall amount to, and not exceed the value of, £ a-year, sub- j^ect to taxes and repairs, for Plaintifl''s jointure for her life. And let Defendants JM. 11. settle and convey such lands and premises, so to be set out and allotted as aforesaid, to Plaintifl' for her life for her jointure, by such conveyances and assurances as the said master shall think fit, free from all incumbrances done by Defendant M. H., and let all proper parties join in such conveyances as the said master shall direct. And let Defendants H. deliver possession to Plaintiff of the lands and premises which shall be so allotted and set out, witii the appurtenances. And let the Plaintiff enjoy the same for her life, against Defendant M. H., and all persons claiming under him, or E. H., her late husband, deceased, and let all deeds and writings relating to the estate in question, be produced before the master upon oath. Decree for an Account and Distribution of Testators personal Estate. If not sufficient to pay the Debts and Legacies, then the Rents of real Estate received by Tenant for TJfe to keep down the Interest, and the Principal to be raised by Sale or Mortgage. Declare that the will of the said Testator being admitted by said De- fendant P. II. his heir at law, ought to be established, and the trusts thereof performed, and doth order and decree the same accordingly. And that it be referred to Mr. , one, &c. to take an account of said Testator's debts, funeral expenses, and pecuniary legacies, and to compute interest on such of his debts as carry interest ; as also to com- pute interest on his said legacies, at the rate of £i per cent, per ann. from the time the same ought to have been paid, according to the said Testator's will. And the said master is to cause an advertisement to be published in the London Gazette for the Testator's creditors and pecuniary legatees to come before him, and prove their respective debts, and claim their re- DECREES. 653 spective legacies within a time to be therein limited, or in default thereof, they will be excluded the benefit of this decree. And the said master is also to take an account of the personal estate of the said Testator, not specifically bequeathed, come to the hands of the said Defendant J. H. his survivinje; executor, and the Defendant P. If. or either of them, or any otiier person or persons for their or either of their use, or by their or either of their order. And the said personal estate of Testator is to be applied in payment of his debts, funeral expenses, and legacies, in a course of adminis- tration. And if there shall be any surplus of Testator's personal estate remain- ing after payment of said Testator's debts, funeral expenses, and j)ecu- niary legacies, it is ordered and decreed that the same be equally divided between, and paid or retained by the said Defendant P. 11. and the Defendant Lord Viscount W. and S. his wife, in right of the said S. and the Defendant A. H. according to the said Testator's will ; but in case the said Testator's personal estate shall not be sufficient to pay the said Testator's debts and funeral expenses, and pecuniary legacies, then it is ordered and decreed that the said Defendant P. H. do, out of the rents and profits of the said Testator's real estates, which hath accrued since his death and been received and taken by him, keep down the interest of such of the said Testator's debts and legacies as carry interest. And that so much of the principal of the said Testator's debts and pecuniary legacies as his personal estate shall be deficient to pay and satisfy be raised by mortgage or sale of a sufficient part of the said Tes- tator's real estate as the said master shall direct, and that a sufficient part thereof be for that purpose mortgaged or sold with the approbation of the said master, wherein all proper parties are to join, and all deeds and writings relating thereto in the custody or power of any of the par- ties, are to be by them produced upon oath before the said master, as the said master shall direct. And the money arising by such mortgage or sale is to be applied in the first place in payment and satisfaction of so much of the principal of the said debts as the said Testator's personal estate shall fall siiort to satisfy, and then in payment of so much of the principal of the said pecuniary legacies as the said personal estate shall fall uliort to satisfy. And if the same shall be raised by mortgage of the said estate, then the said Defendant P. H. is to keep down the interest thereof during his life. And it is further ordered that all the parties have their costs of this suit out of the said Testator's estate to be taxed by the said master. 654 i>ECREES. Decree for an Account of Rents and Profits — Personalty — Receiver, ^c. Decree that it be referred to Mr. one, &c. to take an account of what leasehold estates the Testator was entitled to at the time of his death and of the annual value thereof, and also an account of the rents and profits thereof, accrued since the Testator's death, received by the Defendants, his executors, or either of them, or by any person or per- sons, by their or either of their order, or for their or either of their use j and it is ordered tliat the said do also take an account of the per- sonal estate of the said Testator, not specifically bequeathed, possessed or received by the Defendants, his executors, or either of them, by any person or persons, by their or either of their order, or for their or either of their use; and it is ordered that the master do also inquire and state to the court what the value of the leasehold house at, &c. late belonging to the Testator, and taken by the Defendant ; and it is ordered that the said master do also inquire and state to the court whether the Defen- dants have possessed any and what specific articles bequeathed by the Testator, other tiian and except those which they have delivered to the specific legatees thereof, and for tiie better taking the said accounts and discovery of the matters aforesaid, the parties arc to be examined upon interrogatories, and to produce deeds, &c. to make just allowances, &c. And it is ordered that the master do appoint a proper person to be receiver of the rents and profits of the leasehold estates in question in this cause, and allow him a reasonable salary for his care and pains therein ; such person so to be appointed receiver first giving security to be allowed of by the said master, and taken before a master extraordi- nary in the country, if there shall be occasion, duly and annually to ac- count for what he shall receive of such rents and profits as the court shall direct ; and the tenants of the said estates are to attorn and pay their rents in arrcar and growing rents to such receiver, who is to be at liberty to let and set the said estates from time to time, with the appro- bation of the said master, as there shall be occasion ; and it is ordered that the person so to be appointed receiver from time to time, do pass his accounts before the master, and pay the balances that shall be reported to be in his hands into the bank to be there placed to the credit of this cause, subject to the further order of this Court. And reserve further consideration, &c. Decree for cstahlishing a Charity. Doth declare that the charitable bequest and uses made and created by the will of W. B. ought to be established, and the trusts thereof per- formed and carried into execution, and doth order and decree the same accordingly. DECREES. 655 And his Lordship doth order that the information as against the De- lendaiit T. S. do stand dismissed out of this Court witli costs. And as between the relators and the other Defendants, it is ordered and decreed that it be referred to Mr. one, &c. to taite an account of the rents and profits of the charity estate, accrued since the death of J. B, son of the Testator N. B. that have been received by the Defen- dant R. L. and the other Defendants, or any of them, or by any other, &c. to make all just allowances, &c. and partic-larly an allowance of, &c. And it is ordered and decreed that what shall be coming on the ba- lance of the said account be divided into two equal moieties, whereof one moiety is to be paid to, or retained by the Defendant the corpora- tion of C, according to Testator's will, and the other moiety is to be paid or retained by the Defendants, the ministers of, &:c. for the chari- table purposes devised by said will, concerning the moiety to be paid to the minister of those parishes. And it is ordered that any of the relators and the corporation of the city of C. do produce before the said master a scheme or schemes for the application of what shall be coming ou the balance of said accounts for the moiety of said rents and profits for the poor inhabitants of the said city of C, and also for that moiety of the growing rents and profits of said charity estate, in such manner as may be most beneficial for said poor inhabitants, and the said master is to state the same with his opinion thereon. » Trustees of a Charity being reduced to a small Number others appointed. And the number of the trustees mentioned in the last conveyance of the said charity estate being reduced to six, let eighteen other proper persons of the borough of C, or inhabiting near thereto, be ap- pointed, with the approbation of the master, to be feoflees and trustees of said charity estate, and let the relators and Defendants be at liberty to propose proper persons before the master for that purpose. And when eighteen such persons shall be appointed by said master, let Defendants, the surviving trustees, convey the said charity estate to said eighteen persons and their heirs, to and upon the charitable uses and trusts declared in the said schedule annexed to the of tlie . And let the master settle the conveyances in case the parties differ about the same. Another. And it being admitted the trustees of said charity were reduced to three, it was ordered that nine proper persons should be appointed, with the approbation of the said master, to complete the said nmu- 654 DECREES. ber of twelve, and when such persons should be appointed, the three remaining trustees should, with the approbation of the master, make conveyance of said charity estate to the use of themselves, and the new trustees, so to be appointed, subject to the same charitable uses and trusts. Wliere Executors have paid Debts and Legacies, to stand in the Place of Creditors and Legatees. And in case it shall appear that Defendant has paid any of the debts and legacies of the said Testator let him stand in the place of such cre- ditors and legatees to have an allowance or receive satisfaction pro tant» out of said Testator's estate, in like manner as such creditors and le- gatees would have been entitled to receive. Decree for appointing a Receiver. And the said master is to appoint a receiver for one moiety of the estates in question, and allow him a reasonable salary for his care and pains therein, such person to be appointed receiver, first giving security, to be allowed of by the master, and to be taken before a master ex- traordinary in Chancery in the country, if there shall be occasion, duly and annually to account for, and to pay what he shall so receive, as the Court shall direct ; and the tenants of the said estates are to pay their rents in arrear, and growing rents to such receiver, who is to be at liberty to let and set the said estates, from time to time, with the approbation of the said master, as there shall be occasion ; and the said receiver is to pay the balance of his accounts, from time to time, into the Bank, subject to the further order of the Court. Decree on the Reservation on further Directions — Master to compute subsequent Interest on the Debts as carried Interest, and certain Sums of Stock to be sold and applied in Payment of Debts — Executor to pay into Court lohat is reported due from him to Testator's Estate — Consignee to pass his Accounts, and out of Profits to pay growing Interest and arrears of Annuities, and tax all Parties their Costs, which are to be paid by Consignee, out of Profits of Estate — further Reservation as to Lessee, Legacies, 8{c. His Honor did order that it should be referred back to the said master to compute subsequent interest on such of the debts of the Testator W. M. B. mentioned, in the first schedule to his general re- port, dated, &c. wlhereon interest is thereby computed ; and also to take an account of any other debts, due from the said Testator at his death, remaining unpaid, and not mentioned in the said first schedule to the said report. And it was further ordered that the sum of £ DECREES. 657 Banks per cent. Annuities, standing in the name of the said Accountant- General in trust in the said cause, " the account of the said Testator's real estate" should be sold witii the privity of tiie said Arcountant-Cie- neral, and the money arising by such sale paid into the Bank with the privity of the said Accountant-General to be there placed to the credit of the said cause the like account ; and that out of such money, and out. of the interest of the said bank annuities, until such sale, and also out of the sum of £ cash in the Bank on the credit of the said cause " the Testator's real estate," and likewise out of the sum of £ cash in the Bank, on the credit of the said cause, tlie " Testator's personal estate," the several creditors of the said Testator, or their legal personal representatives, should be paid what should be reported due to them, except the said Complainant W. H., he, by his counsel, consenting to waive his right or claim to receive any part of his debt out of the said bank annuities and cash. And it was further ordered, that the said J. F. B. should pay into the Bank the sum of £ , reported due from him by the said master's general report, dated, &c. on account of the personal estate of the said Testator, with the privity of the said Accountant-General to be there placed to the credit of the said cause " the account of the Testator's personal estate." And it was further ordered, that C. S., the consignee of the rents, profits and prodii< e of the Testator's estate in the said i;^la^d of St. C. should be continued and pass his accounts before the said master ; and that the said C. S. should, out of the profits and produce of the said Testator's estate which might come to his hands, pay the arrears and growing interest of the debt r^^ported due to the said W. H., and of the legacies given by the said Testator's will and codicil, and also the arrears and growing pay- ments of the annuities thereby given, and that he should pay the residue of such rents, profits, and produce, into the Bank with the privity of the said Accountant-General, to be there placed to the credit of the said cause, subject to the further order of the Court. And it was further ordered, that the said master should tax all parties their costs of this suit, other than the mortgagees who had been paid their costs, and that such costs, when taxed, should be paid to the solicitors for the said several parties out of the residue of the money to arise by sale of the said l»ank an- nuities, before directed to be sold, and of the interest that should accrue thereon until the sale thereof, and of the said sums of £ and £ cash in the Bank in the said cause, the aforesaid accounts, (after payment of the said several creditors,) and also out of the said sum o( £ , before directed to be paid into the Hank on tiie account of the personal estate, as far as the same would extend, and that the residue of such costs should be paid by the said C. S. out of the rents, profits, and produce of the said Testator's estate in the said U ^y^ DECRKEb. island of St. C And the usual directions were thereby given for the said Accountant-Gencral to draw on the Bank for the purposes afore- said ; and his Honor did continue the reservation of any directions as to the question whether there were any, and what circumstances affecting the said Testator's estate to make it proper, any ways, and how tar, to lessen the two legacies of ^6^ each given by the said Testator's will to his two daughters the said E. B. and L. B. ; and also the an- nuities of ^ sterling given by the said will to the said D. M. G., £ St. C.'s currency, thereby given to the said L. F., and also the two annuities of £ each given by the first codicil to the Tes- tator's will to the said E. B. and L. B. And his Honor did reserve the consideration of any question that might arise between the creditors of the said Testator respecting the jewels and ornaments of the person of the said Testator's wife which she usually wore, and of all further di- rections ; and any of the parties were to be at liberty to apply to the Court as there should be occasion. Decree Nisi ichere Defendant makes Default. This cause coming on, &c. in the presence of coiuispI learned, for the Plaintiff, no one appearing for the Defendant altliougli lie was duly served with a subpoena, to hear judgment in this cause, as by affidavit, now produced and read appears, the substance of the Plaintiff's bill appeared to be, that, &c. (state the bill.) Whereupon, and upo* hearing, &c. read, and what was alleged by the counsel lor the Plain- tiff, his Lordship doth order and decree, that, &c. And this decree is to be binding on the Defendant, unless he, on being served with a sub- poena to shew cause against the same, shall at the return thereof, shew unto this Court good cause to the contrary ; but before the said Defen- dant is to be admitted to shew such cause, he is to pay unto the Plaintiif his costs of this day's default in appearance, to be taxed by the mabter. Decree Nisi where Defendant, an Infant^ makes Default. This cause, &c. (as before) unless the Defendant, the infant, on being served with a subpoena to shew cause against the same, shall, at the return thereof, shew unto this Court good cause to the contrary ; and as to tiie said Defendant, the infant, unless also he shall, within months after he shall have attained iiis age of twenty-one years, shew unto this Court good cause to ilie contrary ; but before the said Defen- dant, now making default is to be admitted to shew cause against this decree, he is to pay unto the Plaintiff his costs of this day's default in appearance, to be taxed by the master. T N D E X. • m % m ABSOLUTE, order to make a de- cree Page 603 ACCEPTOR of an accommoda- tion note bill by agent, an indor- see, with notice to have bill de- livered up, and an injunction l.OJ ACCOUNTS to be required in a bill filed for the purpose of call- ing an attorney or agent to ac- count for remittances 15 proper to be required in a bill against the trustees of a real and personal estate for pay- ment of debts, &c. for a settle- ment of accounts respecting the trust estate 14 delivered, pretence of 30 ready to pretence of 31 , bill for, against ex- ecutors lOo books, interrogatory to prove 4J0 ACCUMULATIONS of an estate, interrogatories as to 51 1 ADJOURN, order to adjourn pe- tition 610 ADMINISTRATION, to prove the entries of 491 ADVERTISEMENTS, interro- gatory to prove the insertion of 544 ADVOWSON, decree for the par- tition of an 649 AFFfDAFITthat the plaintiff had wi itings, but hath lost them, pro- per to be annexed to a bill 638 of having committed waste ib. by a quaker ih. that an agreement entered into is for the benefit of the infant G39 demurrer for the AFFIDAVIT annexed to a bill of interpleader PftS^c 2[)\> of tenants in com- mon that they may interplead 302 — , demurrer to a bill of interpleader for the want of 421 that deeds.&c. are not in the hands of the plaintiff 176 , observations upon 636 — that agreement ap- want of, to a bill brought for a discovery of deeds 123 pears for the benefit of the in- fant 639 AGE of children, &c. interroga- tory to prove 554 AGENT, or an Attorney, ac- counts proper to call such to ac- count 15 , interrogatory to examine 498 AGENCY, to prove 481 AGREEMENT, bill to have it delivered up, and for a disco- very 220 , interrogatories to prove 480 , interrogatories as to the signing 565 , order to make it an order of court 605 , bill for the speci- fic performance of 72 ALLOWANCE, bill for 92 AMEND, a bill on payment of 20.^. costs, order for 575 bill without costs, order for 576 bill, and answer excep- tions at the same time ?i. answer, order for 577 AMENDMENTS, order for, upon many occasions 574 to 578 ANNUITANTS, bill by, for an account of timber sold, «.^'c. 282 ANNUITIES, interrogatory as to the payment of 5G5 ANNUlTYcreditor.chargingpart of a bill filed by '27 11 INDEX. ANNUITY petition, to prove one, or the value thereof, under a commission of bankruptcy Page 4 Go ANSWER by the heir at law ad- mitting the will 405 — . to a bill of revivor, the defendant being doubtful whe- ther he can admit assets 405 put in after exceptions taken and allowed to former an- swer 4ii6 ■ to bill of revivor not ad- mitting assets 407 to bill of revivor and sup- plement 408 , stating birth of child, to a supplemental bill 409 , of assignees of bankrupt to bill of supplement which made them parties ib. ■ of an assignee of a bank- rupt to a bill of revivor and sup- plement 410 of a single defendant to a bill of revivor and supple- ment 411 of the attorney-general to a bill to perpetuate the testi- mony of witnesses to a will 400 of the heir at law to a suit 412 part of, of purchaser to bill for specific performance who resists on the grounds of a defec- tive title 404 , words of course pre- ceding 10 , order to refer second 592 , observations upon 381 , the concluding part 10 , to amend, order for 577 , order to answer sepa- rate 586 an, by executors, deny- ing assets and stating that the estate is indebted to the execu- tors 385 ■ — of an infant defendant admitting the allegations in the bill, and submitting his rights to the court !8C count and statute of limitations, as a bar to plaintilf 's demand Page 389 ANSWER by an executor, an ac- counting party, to a bill by lega- tee 390 ■ of executrix submitting to act as the court may direct 393 of executrix submitting to account, but denying assets 394 of a defendant trustee under a nuncupative will 395 of the attorney-general to the above suit, the plaintiff being illegitimvste 396 of defendant tru':tee sub- mitting to act as the court shall direct 397 of a legatee to elect to take under will ib. to a bill by wife against husband for a legacy claiming legacy, husband an executor ad- mitting assets : joint answer 398 by three legatees to a bill filed by trustee under settlement and will, one defendant an in- fant 399 of mortgagees of trust premises to a bill for an account of the trust properly 401 to a bill of foreclosure 402 of the attorney-general insisting on a stated ac- insisting on an escheat in case no will made and no heir 403 of the attorney-general on behalf of a charity ib. of heir at law to a bill to prove a will 404 -, a part of, to inquiry re- specting incumbrances,&c. sche- dule of deeds, &c. 412 APPEAL, petition of 472 APPLICATION, charging part, and prayer to a bill that tenant may be obliged to put and keep premises in repair, and injunc- tion from farther waste, by ploughing up contrary to the terms of his lease 16 IJJDEX. Ill iFPORTIONMENT of rent, bill of interpleader for Page 306 ARBITRATION bond, bill to have the same cancelled and deliver- ed up 279 ASSETS, answer to a bill not ad- mitting 407 ASSETS, answer by a defendant being doubtful whether he can admit 405 — , answer by executors deny- ing 385 5 answer denying, willing to account 394 , bill to have them marshall- ed 197 ASSIGNEES of a bankrupt, bill by, against bankers for an ac- count 186 of a bankrupt, bill by 194 of a bankrupt, sup- plemental bill against them for relief 338 ASSIGNMENT, bill to have it de- livered up to be cancelled for want of valuable considera- tion 190 of effects, part of a bill to set the same aside 31 ATTORNEY -GENERAL, an- swer of 396 at the relation of another person 3 , infor- mation by ib. AWARD, order to make it an or- der of this court 611 B. BALANCE of a partnership ac- count, interrogatory to prove when made out 569 BANKRUPT, interrogatory as to his connection with a partnership concern 535 , prayer in a bill a- gainst assignees of, for an ac- count of separate estate 59 , assignees of, answer BANKRUPT, assignees answer to bill of revivor and supplement Page 410 BANKRUPTCY of defendant and death of plaintiff, bill of revivor in consequence 34 S , supplemental bill in consequence of 339 , plea of 447 BANK of ENGLAND in some cases an unnecessary party by 40 Geo III. c. 36 BANK, a party to a bill 92 BAPTISM, interrogatory to prove 523 BEGINNING of a bill in chan- cery 3 of a bill in the ex- chequer ib. of an information by the Attorney-General ib. of an information by the Attorney-General, at the relation of another person ib. BILL, various titles of 2 , observations on original 69 For Specijic Performances. for the specific performance of an agreement 73 — for a specific performance of a sale by public auction 74 — for a specific performance, vendee against vendor "^^ — by lessee against lessor for a specific performance JJ — by lessee against lessor for specific performance, and injunc- tion to restrain him in action of ejectment 79 for a specific performance, by, to a supplemental bill which made them parties 409 pretence that by reason of the original lease being lost, a good title cannot be made, defendant in possession, and ough< to be charged with the rent, &'c. 80 — , prayer to, for a specific per- formance of an agreement, on the faith of which plaintiff had paid a large sum of money, and had also expended considerahie sums in repairs and alteretl the premises, lliat if good title could iv^ l.NDKX. not be made, plaiiitili" might be taken to be a mortgagee Page 82 BILL by first vendee against ven- dor, and an after purchaser, witli Hoticp charging him with notice ; also an injunction from cutting wood 83 for a specific performance, lessee against lessor 88 For next of Kin. by next of kin against admi- nistratrix, for an account of in- testate's personalty 90 by next of kin against admi- nistrators, for a distribution of intestate's personal estate 91 by infants against administra- trix and her husband for an ac- count of intestate's property ; allowance ; guardian receiver ; bank a party ; and injunction to r'^ -train the selling stock; title deeds to be deposited 92 by next of kin for a distri- butive share against an adminis- tratrix, and for an injunction to prevent the transfer of stock, un- der a suggestion that she meant to leave the country 95 by one of the next of kiii against sin administrator, for an account of intestate's estate and distribution ; pretence that plain- tifi^'s share was expended in his education and maintenance 97 Fo7- and against Executm-s. by husband of legatee against an executor for payment of le- gacy 100 by executor to establish will, and carry the trust into execu- tion 101 — — to establish a will and ac- count, and which of the execu- cutors possessed himself of part of personals ; injunction to re- strain executors from receiving any further parts ; receiver ; guardian ; allowance ; widow makes her election i04 BILLS by executors for the direc- tions of the court Page 106 for an account against exe- cutors and tenant for life, and to have the residue secured for benefit of those interested 108 by two executors and trustees under a will, to have the trusts of a will carried into execution, there being inconsistent clatms ; one executor declines to join in the suit 111 by legatees for payment of legacies, and trusts of will car- ried into execution, and to sup- ply the defect of copyhold sur- render 112 For and against Trustees. to remove trustees, one re- fusing to act, and the other hav- ing applied part of the trust monies to his own use ; injunction to restrain them from receiving further sums ; for the appoint- ment of new trustees and a re- ceiver 116 for the appointment of a new trustee under a marriage settle- ment, there being no such power therein contained ; trustee willing to oe removed lif for removing a trustee who refused to act 118 by trustee under a marriage settlement, to have replaced in the funds a sum of stock, secured by bond on the trusts of said settlement, and applied to tho uses of the will of appointee 119 - !)y a surviving trustee to be discharged from trusts on the ground of obstruction by the hiish?ind of cestui que trust 121 by husband and wife against the trustees of their marriage settlement to have the portion, raised for younger children, paid against trustees for sdling out stock in their names, under a settlement, which, being in their custody, plaintiffcannot set it out INDEX. more fully ; account of the divi- dends, and injunction from sel- ling the remainder j bank a par- ty Page 129 For Ship Assurance. BILL by underwriters for a fraud practised uf)on tliera in represen- tation of the voyage the policy was from to , and the assured brought an action for a total loss on that voyage, when in fact the ship's destined voy- age was to , where she arrived and was sold with her cargo 132 by underwriters against in- surers and their agents 136 Upon Partnership Concerns. BILL by one partner against ano- ther for an account of partner- ship transactions, defendanthav- ing entered into various specula- tions without consent of the other, and then wanting to charge the loss of such speculations to the firm 141 by copartners against acting partner, who had been arrested and imprisoned for debt ; for a dissolution and account ; and injunction to restrain him from collecting monies 144 for dissolution of partnership, and injunction to restrain from collecting debts 146 for an account of partnership dealings after dissolution, and for a receiver, &c. 148 Upon Promissory Notes. for an account of principal and interest due on a promissory note : plaintiff cannot sue at law, note being lost ; a pretence that defendant means to avail him- self of the statute of limitations ; charge thereto 150 to have delivered up to be cancelled certain bills of ex- change which they had deliver- ed to A,, to get discounted for them, but which he had nego- ciated without any consideration to plaintiffs Page 151 BILL by the acceptor of an accom- modation note against an indor- see, with notice to have bill d»*- livered up; and an injunction 154 Mortgage Matters. by heir at law for redemp- tion of freehold lands 158 of foreclosure 159 to foreclose and to redeem a trust term l6l by mortgagee against mort- gagor lor delivery of title deeds, under an undertaking tor that purpose, and an injunction to restrain from defeating plaintift''s priority by delivering deeds to a second mortgagee 16G by devisee of an equity of re- demption against the executor of a mortgagor who had taken an assignment of the mortgage, charging that the money was paid to the mortgagee from the assets of the testator, the exe- cutor being also heir to the tes- tator 167 of foreclosure by the execu- tors of the mortgagee against the mortgagor, and his assignees 171 for an account and redemp- tion of mortgaged premises, plaintiff being heir at law of mortgagor, and defendants per- sons in possession ; altklavit of plaintiff' that he has no deeds of the premises 173 to foreclose, and to have a term to attend the inheritance declared to be in trust for the mortgagee 176 for an account of mortgage money due, and sale of mort- gaged premises 1T9 by heir of mortgagor for re- demption of copyhold preinises. and an account of rents and pro- fits received by mortgagee 182 to have goods re-delivcred VI INDEX. which had been deposited as a security for money lent Page 185 Bankrupt Matters. BILL by assignees of bankrupt aL'^ainst bankers, for an account of money produced by sale of estates which were assigned to them for paying certain bills which they accepted for the bankrupt 186 — — by assignee of bankrupt to have an a«siirnment of lease of premises delivered up to be can- celled, which ihe bankrupt as- signed to the defendant a short time previous to his bankruptcy; charge for want of valuable con- sideration, lyo by assignees of bankrupt, against executors of bankrupt's father for an account, and that the residue of the estate may be secured and invested for benefit of his creditors 194 For Creditors. by simple contract creditors against administrator, and per- sonals insuflkient, assets mar- shalled 197 by specialty creditor, against administrator and heir at law of intestate, for sale of mortgage premises, to pay off mortgage as far as they will exteixi, and in case of deficiency, to be ad- mitted a creditor on the general assets of intestate ; and also for payment of an annuity, secured by other premises, and that they may be sold ; and in case of de- ficiency, to be admitted a cre- ditor on the general assets of in- testate, judgment having been entered up 200 by a bond creditor for pay- ment out of a trust estate, de- vised on failure of personal as- sets, that deeds, &c. may be set out 203 — by trustees, as creditors, against executor of debtor, who acted as the receiver ot the rents of lands, which they held in trust for the Algebra lecturer in the university of Cambridge Page 208 BILL by creditors against execu- tors for payment of debts due by testator, or an account of per- sonals 210 by trustees under an assign- ment for creditors, for a disco- very to go^ to trial, defendant having pleaded set-off, and in- troduced items which ought not to be charged against them as trustees 211 to oblige a creditor to accept a dividend made under a deed of trust, in satisfaction of his original deniand, defendant hav- ing signed articles, though not the deed of trust, refusing to sign the deed under pretence (if some variation of the trust, and that before he had assigned over the debts TO his lather, for the be- nefit of all his creditors 214 For cancelling instruments. to deliver up agreement to be cancelled and for a discovery 220 by lessee to have an agree- ment delivered up to be cancel- led, whicli assigned away tlie re- mainder of his lease contiary to his intention, he not being able to read or write, and an injunc- tion to restrain action of eject- ment 224 to set aside indentures, which conveyed away an estate ali^o- lutely though they were intend- ed to operate only as a security ■*• for a certain sum of money 226 by heir at law to set aside a bill and surrender of copyhold, as obtained by fraud 2oO by a widow to have a bond delivered up, which her husband had given to his father, charging that it was meant as a security for a return of part of the fortune INDEX. Vll ■which defendant had pretended to give him on his marriage 236 BILL to have a bond doHvered up to be cancelled, which was ob- tained by misrepresentation, and injunction from proceeding on the said bond Page 238 For Bond-Creditors. by bond and simple contract creditors against an executor 241 "^ by a bond creditor against trustees, under an asi^ignment of joint and separate debts for an account of separate estate of obligor, and to be paid^vc/'/ w«i'.sj< with the other creditors, and al- so an account of the joint trust property 244 — ' by a bond creditor against executor of obligor for satisfac- tion out of real and personal es- tate, and against co-obligor, to supply tlie deficiency 21 S by bond creditor against heirs at law and residuary legatee, for payment by sale of estate 252 to have a bond and other se- curities delivered up, part of the consideration being money won at play 254 For Infants and Lunatics. — - — to have a sura of money, which was a specific legacy, and ap- propriated, invested in the ac- countant-general for the benefit of infants, guardian allowance, &c. 258 — — by infant and next friend, lo carry the trusts of her father's will into execution, and for a re- ceiver. Infant was also tenant in tail of lands under the will of her grandiather 259 for the transfer of stock stand- ing in the name of the account- ant-general which had belonged to a lunatic deceased 26:> --^ to rai-;e a sum of money which had been paid by plaintifl", tenant for life, under a will ta make up Q a legacy charged on such estate, the next tenant in tail being an infant, freehold, copyhold, re- versions, personals Fage 267 For Legatees. BILL by legatees against executors for payment of legacies, and to account 271 by residuary legatees against executors, to establish a will for the usual accounts, that execu- tors may be charged with any losses for not laying out money as directed ; that widow may sign and deposit an inventory of household furniture to which she was entitled for life 274 by a wife against executor and her husband lor a legacy left to her sole and sei)arate use 278 To set aside an Award. to have arbitration bonds de- livered up to be cancelled, the award being void, and an in- junction from proceeding on said bonds 279 For Annuities. by annuitant for an account of money produced by sale of timber, it having been felled for the purpose of redeeming his annuity, and the trustees hHving applied it in discharge of the arrears of another annuity 282 for dower 28G For Literary property. to restrain from printing and pui-jlishing the trial of lord vis- count IM., the exclusive right having been given to j)laintifi"= by the chancellor by order of the house of lords ; and for an ac- count 288 by the owner of a musical copyright against a dealer in music, who had iitfringed his riffht : inauirv as to books, 291 t)0 VIH liNDEX. Of Interpleader. BILL of interpleader by tenant for payment of rents of leased premises, with affidavit annexed 298 of interpleader by a tenant, whose goods had been distrain- ed by one of two tenants in com- mon, for the whole rent due after he had notice from the other tenant in couniion not to pay his rent to the person distraining 300 of interpleader by executors, whose testator was possessed of certain trust monies, and for which a bill in equity had been filed by the heir at law of cestui que trust, and an action at law brought by the husband 303 of interpleader by tenants, against executors under a will, and trustees under a deed, and against an infant tenant-in-tail, the trustees claiming an appor- tionment of the rent to the death of tenant for life, and the execu- tors claiming the whole half- year's rent for the infant tenant- in-tail, and an injunction to re- strain them from proceeding at law 306 Certiorari. to remove a cause from the lord mayor's court into the high court of chancery 3 1 2 To perpetuate Testimony. to perpetuate the testimony of witnesses, observations upon 313 to perpetuate the testimony of witnesses to a will 317 to examine plaintiff's wit- . nesses to perpetuate tlieir testi- mony as to boundaries of plain- tiff's estate 315 . to perpetuate testimony of wit- nesses as to a marriage 318 Discovery. of discovery, observations upon 321 BILL to force a discovery of deeds Page 323 Supplemental. of revivor and supplement, observations on 329 -, supplement, stating a further error in printed particular, and claiming a further compensation 333 — supplement, defendant hav- ing commenced an action of ejectment since filing original bill, and an injunction from pro- ceeding in said action of supplement, in the nature of an original bill, for a legacy of stock given to I. L, in case he should claim it within 7 years 335 supplemental, for relief a- gainst the assignees of a bank- rupt 338 - — , supplemental, in consequence of the bankruptcy of a defendant 339 Revivor. of revivor upon the dejfti: of plaintifil', by his administrator, the executors under his will hav- ing renounced 3-10 of revivor upon death of a defendant 341 of revivor upon the marriage of female plaintiff, stating ex^ ceptions and amendments, &;c. 342 — , — of revivor against heir-at-law of a mortgagor entitled to equity of redemption against real estates 31;; of revivor against personal representative of a defendant, who died before putting in an- swer to original bill 345 Revivor and Suppiement. of supplement, in the nature of a bill of revivor 34G of revivor and supplement upon the death of one plaintiff, and upon a defendant becoming a bankrupt 34S *NDEX, IX BILL of revivor and supplement for the purpose of prosecuting decree for an appointment of re- ceiver, and for various ac- counts Page 349 Cross. , cross, observations upon 354 , cross, wliere a person is sued to account exlu!)ited by the de- fendant against the complainants to produce papers, and discover who hath acted in an executor- ship 355 Review. of review, observations upon 359 to review, revise, and answer 361 To prosecute Decrees. ■ to carry decree into execution, observations upon .'j62 of supplement by infants a- gainst trustees, &c. to prosecute decree, and defendants to be charged with monies that they ought to have laid out 363 by an administratrix for an account, and to revive a decree and carry it into execution 367 BIRTH, answer to a supplemental bill stating the birth of a child 409 , the registry of, to prove 490 BOND creditor, petition by 46 1 , prayer to prevent proceed- ing upon 65 , interrogatories as to the reason for executing 5 08 or deed, to prove 523 BOOKS, statement that defendant hatli them I6 , inquiry as to ^6. BOUNDARIES, bill to perpetuate testimony relative to 315 BUILDING, information by the attorney-general to restrain 376 burial's, Registry to prove 490 C. CANCELLED, bill to have a bond Page 238 CAPIAS in withernam^ order for 613 CAPTAIN of a packet, interroga- tory as to the passage of one of his passengers 562 CAUSE order to speed 601 CERTIORARI, Older for 6l3 ■ bills, observations upon 310 CHARGES in a bill against an executor as to an account and balance due, the account sche- duled in the bill 25 and pretences of va- rious kinds in a bill of foreclo- sure 162 CHARGE in a bill brought by the heir of the supposed testator, in order to set aside the will, as be- ing obtained by fraud and im- position, the supposed testaior having lost the use of his intel- lects, defendants set up the will and insist it was duly executed 26 of not a valuable consi- deration 40 • of notice on the purch.as- ing an estate 175 of fraud and confederacy 4 , if papers. Sec. produced. plaintiff's title would appear 22 CHARGING part of a bill fded by an annuity creditor, against the trustees under a deed em- powering them to sell and fall timber for repurchasing the an- nuity, charging them with mis- apf)lication, inasmuch as they applied the produce of the sale in discharging the arrears of an- other annuity under an indemni- ty 27 CII/VRITY, answer ofthc atlorne}' general on behalf of '103 ' decree to establi.'-h t!54 CLAUSE which gives cognizance i-n equity ♦') INDEX. CLERK in court, order for him to attend with record of a bill, that it may be taken pro covfesso 598 COMMISSION to examine wit- nesses abroad, conclusion and prayer of a bill for 64 , order for, to distin- guish freeholds from copyholds G07 COMMISSIONERS of bankrupt, petition to call a meeting of, to prove a debt 455 COMMITTEE, order to answer by 584 CONCILIUM, order that proceed- ings in petty-bag oflke may be made so 6l7 CONCLUDING part of a bill for a settlement, and to restrain pro- ceeding on a bond, wliicli had been given as a security by the plaintifls for the keeping certain accounts Gj part of an answer of next of kin to bill of revivor and supplement by eldest brother 413 CONCLUSION of a bill for a commission to examine witnes- ses abroad G4 of a bill against trustees for converting monies, which stood in their names, to their own use. 66 to a bill for a spe- cific performance, vendee objects to title, charge that he makes difticulty to delay completion by reason of the fall of stocks 81 CONSIDERATION of a bond in- terrogatory to prove, and when CON V E RS ATION, interrogatory to prove 482 CONVEYANCE and receipt for consideration-money, interroga- tory to prove 566 COPYRIGHT of a musical publi- cation, bill for 291 COURT, answer by an executrix, submitting to act as the, (fee. 393 , answer submitting an infant's right tojts protection 388 COURT, bill by an executor, ftw the direction of Page 106 CREDITORS, decree for the ap- plication of testator's personal estate 647 , petition by, for leave to come in and prove their debts after the time limited by the court had expired, stating they had not seen the advertisements 469 interrogatories exhi- bited by, before a n^ aster 519 , bill by trustees, for their benefit, &c. 211 , bill by, against exe- cutor of debtor 210 , by specialty, for sale of property, tScc. 200 petition by, against assignees under a commission of bankrupt 461 , by simple contract, bill by 197 , bill to oblige one to accept a dividend 214 , by bond, bill by, for payment 205 CROSS bill, observations upon 354 bill, order for time to an- swer 584 D. DEATH of plaintifl'and bankrupt- cy of Defendant, bill of revivor in conse(iiience of 348 of plaintiff bill of revivor in consequence of 340 — • — of a defendant, bill of re- vivor in consequence of 341 DEBTS due, interrogatories as to 508 owing by a testator, inter- rogatories as to 509 DECREES, the form of, and man- ner of drawing the same 640 DECREE, bill of revivor and sup- plement, for purpose of prosecut- ing 349 & 363 , bill to revive and carry it into execution 2>G7 on act of parliament for INDEX. XI the more easy redemption of mortgages Pa^e 61!') DEC HE E, pro confesfio. defendant being brought by alias jjlurics habeas corpus ib. •— — , pro confesso, as to one defendant, and heard as to others 646 . to a bill by creditors for the application of testator's per- sonal estate 647 of foreclosin'e ib. of redemption where the mortgagee had been for years in possession 648 for a partition ; infants to have a day to shew cause 649 for a partition of an ad- vowson ib. -, opening stated accoimt, and directing general accounts 650 to set out dower, and to account for one third of the rents and profits of the estate accrued since the death of the husband ib. to confirm jointure by consent, the lands having been specified in the settlement 6'il to set out jointure, joint- ress enlilledin equity only, mas- ter to set it out 6o2 for an account and dis- tribution of testator's personal estate, if not sufficient to [jay tlie debts and legacies, then the rents of real estate received by teimnt for life to keep down the interest, and the principal to be raised by sale or mortgage ib. for an account of rents and profits : personalty ; re- ceiver ; &c. 654 for establishing a cha- rity ib. , trustees of a charity being reduced to a small number, others appointed 655 , where executors have paid debts and legacies, to stand in the place of creditors and le- gatees 656 DECREE for appointinga receiver Pa^^e 6b6 on the reservation on further directions ; master to compute subsequent interest on the debts as carried interest, and certain sums of stock to be sold and applied inpayment of debts; executor to pay into court what is reported due from him to tes- tator's estate : consignee to pass his accounts, and out of profits to i)ay growing interest and ar- rear of annuities, and tax all parties their costs, which are to he paid by consignee out of pro- fits *of estate; further reserva- tion as to lessee, legacies, &c. lb. 7iisi, where defendant makes default 658 nisi, where defendant, an infant, makes default ib. DEEDS, interrogatories to prove, by subscribing witnesses 495 , interrogatory to prove the finding of [)66 ,bill for the discovery of 323 DEFAULT, where defendant makes, a decree in that case nisi 658 DEFECTIVE title in a vendor, interrogatory as to 529 DEFENDANT, a single answer by, to a bill of revivor and sup- plement 411 , order to examine 588 DEMURRER, observations upon 415 , for want of parties 4J9 for want of equity ib. , because the disco- very sought may subject the de- fendant to penalties, which the plai)iliff has not waived tb. and answer, seve- ral, of B. C. wife of T. C. a lu- natic, one of the defendants, to the bill ofcomplaintof S. E. com- plainant 420 xu INDEX. DEMURRER to a bill of inter- pleader for want of the usual af- fidavit, that plaintiff does not collude with any of the defen- dants Page 42] to a bill relating to distinct matters 422 , conclusion of an answer insisting that the plain- tifi'is not entitled to relief in equi- ty, and claiming the benefit of that defence as if the bill had been demurred to ib. , wiiere tlie defen- dants arecharged with felony or compounding felony 423 — for want of parties, and for want of an affidavit to a bill, brought for a discovery of a deed ib. for, that the plain- tiffs have not entitled themselves to prosecute 424 , plea and answer to a bill seeking relief against a vvill, whereby a personal estate is devised, being proved in the ecclesiastical court, and the will pleaded in bar, and for want of equity 425 , order to adjourn G12 and answer 420 DEPOSITIONS, order to use 689 DIRECTION' of a bill in chancery to the Lord High Chancellor -2 ■ if the seals be in com- mission ib. of a bill in the court of excheqtier ib. of a bill in chancery of the great sesi^ious ib. of a bill in the chan- cerv of Lancaster ib. DISCLAIMER and answer 451 DISMISS, bill to, for want of pro- secution, order for 575 DISTRIBUTION of testator's per- sonal estate, decree for, if not sufficient to pay the debts and legacies, tlien, &c. C)')2 DISTRINGAS, order for 595 DOWER, decree to set out and to account for, since the husband'* death Page 650 E. EJECTMENT, injunction from proceeding in bill for 334 ELECTION, order for either to proceed at equity or law 591 ENTITLE to sue demurrer, be- cause defendants have not en- titled them to sue 424 ENTRIES and letters, charge and inquiry as to 4G EQUITY, demurrer for want of 419 ESCHEAT, answer of the attor- ney-general claiming one 403 ESTATE, the possession, inter- rogatoi'v to prove 570 EXAMINE WITNESSES, de be- ne esse, order to 588 EXCEPTIONS to a master's re- port, words of course before 13 , answer after, they having been allowed 406 , to accept, order for 579 , to refer, order for ib. ' , order on arguing G08 , order to answer GlO EXCHANGE, bill of, bill to have the same destroyed 151 EXECUTORS, charges against 25 decline to join in the suit 111 interrogatory to ex- amine 508 EX HIBITS, interrogatory to prove them 548 , order to prove 602 F. FELONY, demurrer to a bill where defendants are charged with 423 FEME COr£R TO separately, or- der to examine 605 FLEET, petition to be discharged from 471 INDEX. Xili FLEET, order for the commitment to ^"g<^ ^8S , order for habeas corpus to turn a defendant over to llie 599 FOOT-WAY, information against opening it as a carriage-wav 37S FORECLOSURE, prayer for .'j6 '■ — , bill for 159 , bill for, by the executors of the mortgagee 171 , bill of; answer to 402 , decree of 647 FORMA PAUFEBIS, order to admit a defendant as, in 590 FREIGHTAGE of a ship, inter- rogatory to prove, as well as the expense-s, &c. 660 G. GAMING, a bill to have a bond delivered up, it being given for money won at play 254 , money won at 256 GOODS sold, delivered, and njo- ney lent, interrogatory to prove 475 GUARDIAN, bill for 92 to be appointed 258 , receiver, and main- tenance, bill for 259 , order to assign 6b'6 H. HABEAS CORPUS, order for, defendant not being able to give security on A"e exent regno 614 directed to a gaoler in a county palatine ib. HEIR at lavr, bill by, to set aside ~a will, and surrender of copy- hold, as obtained by fraud 2^30 , answer of, admit- ting the will 405 HUSBAND, bill to be relieved from the trusts on account of ob- structions by 121 and WIFE, joint an- swer to a bill for a legacy 398 IDENTITY of a person, interro- gatory to prove, under a mar- riage settlement Page 5'J3 ILLEGITBIACY, pretence of; charge to the contrary 33 IMPERTINENCE, order to refer a bill for 587 INCLOSURE, interrogatories as to 561 INCUMBRANCES, inquiry after such as concern real estates 53 interroga- tories as to, upon an estate in the West Indies 517 INDORSEMENTS, interrogato- ries to prove 495 INFANTS, order to inquire whi< h suit is most for their advantage 608 , bills for 258 to 270 , bill by, against admi- nistrators <)2 INFORMATION, tide of 3 by the attorney- genei al to restrain building 37G — — — against opening a foot-way for a carriage road INJUNCTION on attachment, or- der for 573 ■ on attachment for want of answer ib. from printing books, order for 574 — - — , order to dissolve ib. 606 INQUIRY whether the defendant hath not, in his custody or power, the account of books, papers, or paper-writings, of his real and personal estate 16 relating to letters and papers wilfully burnt and de- stroyed 23 as to letters concerning the sal<^ of a ship's cargo 24 as to suflcringa recovery 34 — ^ as to the execution of a deed or other instrument 36 XIV INDEX. INQUIRY respecting the execu- tion g{ a will Page 45 for an account of writ- ings concerning entries made, &c. 47 — as to title to real estates ^ 50 after interest made of personal estate 52 after title to real estate 51 after personal estates 52 after incumbrances on real estates 53 after persons entitled to any legal or equitable interest in lands 54 . after real estate ib. after fines and other casual profits of manor ib. in a bill to stay waste 55 : as to the title-deeds and writings relating to the real estates of an intestate 93 as to a set-off in an ac- count 2 1 o for the delivery of an agreement relating to the pur- chase of a piece of land 223 as to an agreement and money paid thereon ib. as to the sale of copyhold land 234 as to the sale and pro- duce of a literary work 294 as to intestate's estate and effects, and money laid out upon his account 503 as to personal estate and money arising by rents and sale of real estate since swearing an- swers 511 INTEREST, inquiry after 52 INTERPLEADER, observations upon; prayer to interplead ; oiler to pay money, and injunction 296 INTERROGATING' part of a bill 7 INTERROGATORIES, words of course preceding answer to when exhibited before a master 12 to prove goods sold and delivered, and money lent Page 475 as to the knowledge of parties ib. — as to goods sold and delivered ib. _ as to mo- ney advanced and lent ib. to prove books of account 476 i to prove an agreement 480 to prove agreement by subscribing wit- ness, if not by some person who knows D.'s hand-writing 480 to prove the letter, dated, &c. by the same witness who is examined on tiie 2d interrogatory ib. to prove offer of money to Defendant D. by the examination of Mr. E. ib. ; to exa- mine the solicitors of defendant R. G. who contracted for the purchase, as to their knowledge of plaintiff's agreement 481 to exa* mine the partners of T. R. C. and prove agency between them ib. : to prove conversation between plaintiff and one of the partners of de- fendant T. R. C. 482 for the ex- amination of the same partners as to their borrowing the plain- tili "s agreement, and the conver- sation that passed thereon ib. to prove the sale of an estate by auction which was purchased by an agent 483 to prove plaintiff's title 488 for the executors of plaintiff's mother, and any person who can speak with accuracy as to pedigree ib. for the INDEX. XV executor of plaintiff's mother, or any other person who can speak to the fact of possession489 INTERROGATORIES for the proof of the registers of births and burials which support the pedigree 490 ■ •- for the proof of any inscriptions on tomb-stones which support the pedigree ib. . to prove a search in the proper office of wills 49 1 . to prove the entries of administrations, if any ib. to prove relationship or pedigree 492 to prove knowledge of testator's grand- ib. to prove the issue ib. to prove children died without issue ib. . — to prove having a 493 to prove ib. to prove father, and marriage marriage, and their daughter of such marriage plaintiff's only surviving children ib. — to prove a will 494 to prove deeds by subscribing witness 495 to prove indorsements ib. to prove a will by all the subscribing wit- nesses, if living 490 for the examination, before a master, of the executor and heir at law of defendant, who was the agent, steward, receiver, and manager of the estates in question 4 98 to prove whether a person was empower- ed to let the estates in question, and to receive the rents, &c. In- quiry as to the particular rental, what money received, &c. P. 504 INTERROGATORIES before a master, as to what the property of a lunatic consists 505 for the examination of witnesses, before the master, relating to the es- tates of testator, and also to the title-deeds 507 for the examination of executors, before the master after the hearing 508 , account of personals ib. , debts due to testator 509 , account of debts owing by testator ib. ' , funeral expenses and other charges paid by executors ib. as to the leasehold property and stock in trade 510 as to the profits and produce of an estate in the West Indies in mortgage 512 as to mo- ney and interest due on mort- gages and securities ib. as to mo- ney laid out upon premises for repairs, &c. 513 as to rents and profits of mortgaged pre- mises ib. as to tak- ing possession of estates not com- prised in the mortgages, under cover of the said mortgages 514 as to mo- ney laid out in lasting repairs upon premises wrongfully pos- sessed, under co\er of a mort- gage of another part ot the es- tate '*• as to ac- counts allowed a steward or agent for the produce of an es- tate in the West Indies ib. XVI INDEX. INTERROGATORIES as to the consignee of produce from a West India estate in mortgage Page 515 ■ as to tlio increase and produce of negroes on an estate in the West Indies ib. to ex- amine mortgagees in possession as to receipt of rents 516 to prove that crop was on plantation at the lime of sale ; whether free from incumbrances ; as to secu- rity mortgagee had, and to what he resorted for payment of his money 517 to prove that crop was on plantation, and what has become thereof iO. as to in- cumbrances on plantation, and to whom due ib. as to the security besides bond and mort- gage 5 1 8 to prove what security mortgagee resort- ed for payment of his money ib. exhibited by creditors, before the master, concerning a bond ib. to prove the existence of the bond ib. to prove that the same came into Mr. L.'s possession, and what hath be- come thereof 519 to prove that tlie bond was executed by lord D., and to learn who was the attesting witness, and by whom the bond was filled up i/j. to prove that Mrs.T. gave no authority to receive the bond ib. • ■ to prove ac- knowledgments probably made by lord I)., that he gave the bond for Mrs. T.'s use ib. — to prove letters 520 INTERROGATORIES as to the estate and effects of a testator Page 620 as to per- sonal estate and effects executed, debts due to testator ib. as to debts due to testator 521 as to debts due ib. as to free- hold and copyhold estates, and the rents and profits thereof 522 as to what money received for principal and interest on bond ib. to prove the idendity of a person under a marriage settlement 523 to prove birth and baptism ib. to prove re- gister of baptism ib. to prove marriage ?ettlement ib. to prove ib. deed or bond to prove that issue are alive, and what estate the testator had 554 to prove the delivery of a notice 525 to prove Mr. R.'s letter of, Sec. ib. to prove the notice given 52 G to prove what passed at the purchase of an estate ib. to prove the sale of premises by auction, and the agreement thereto 52/ to prove the memorandum or receipt signed by auctioneer 52o to prove the agreenient signed by plainlift", and the circumstances of the sale ib. as to sale of estates, defective title in vendor, plaintiffs title, purchase less than valuable coniiideration, con- INDEX. XVll vei'sation about title, fine, &c. Page r)20 INTERROGATORIES respect- ing the purchase of estates, and as to objections on the title 532 to prove the printed particular, examination of the auctioneer ih. to prove the estimated value o,f land by the examination of the surveyor ih. to prove the delivery of abstract ih. to prove the •actual quantity by admeasure- ment 533 ■to prove that the objections were made at the time of the agreement ib. to prove an assignment made previous to bankruptcy was fraudulent 533 as to a bank- rupt's connexion with a certain co-partnership 53o exhibited before commissioners of bank- rupt as to the bankrupt and his estate 537 relative to the solvency of a bankrupt, at the time of his assigning certain premises to particular creditors 540 to prove a 541 to prove ar- ticles of co-partnership lb. to prove the co-partnership carrying on the business before A. E.-'s admission into the part- nership by the book of the trade bills 542 , examinati- on of messengers to prove that the heads of articles were de- livered to them for the purpose of drawing regular articles, and why such articles were not drawn 543 to prove ib. partnership to prove the advertisements of the part- nership Poge 514 LNTERIIOGATORIES to prove a partnersliip H, to examine tradesmen as to their knowledge of a partnership 545 to prove ex- hibits 548 as to part- nership accounts ifj, — — as to part- nership transactions 550 to prove the partnership by declarations of A. or by dealing with them as part- ners ib, to prove a change made in the firm of the house at Christmas 567 to prove that from Christmas B. alone carried on the business ib. • to prove partnership dealings and trans- actions 551 ■ • to prove partnership dealings and trans- actions ih. for the ex- amination before a master, to prove consideration of a bond, and as to monies paid for pas- sage, &c. 552 to prove the consideration of a bond when ex- ecuted, if after dinner and in- toxicated, whether addicted to drinking, by whom prepared, the consideration, if for monies, set forth in what manner advanced, whether paid for his passage, whether brouglit any money on board ih. as to the claim of ^ 553 as to the claim of £ ih. as to Mrs. M.'s passage *''• what agree- greement made for passage, whether dined at the captain's XVlll INDEX. table, what is the customary payment of common passengers, and what of those who dine at the captain's table Pcgc 553 INTERROGATORIES for the examination before a master to prove the age of children 554 — whether children living of the marriage, what their names, where born, whether any dead, when did they die ib, whether any baptized, whether any entries made, in what churches ib. as to the ex- ecuting and consideration of a bond 555 to examine a solicitor as to a letter written and the motive; as to the inten- tion of employing another soli- citor ; as to an action com- menced for business done ; as to instructions to appear at the hearing, &c. 556 to prove letter written, and motive for writing it ib. • to prove no- tice that they meant to employ another solicitor 557 to prove ac- tion commenced for bill in other business ib. to prove let- ter, and as to the persons men- tioned therein ib, ■ to prove that C. had no instructions to appear for defendants at the hearing, and did not in fact deliver briefs for them ib. to prove si- tuation a person held, acquaint- ance, receipt of monies in such situation, expenses and mode of travelling, means of providing for his family, &c. 558 .— to prove si- tuation and office ib. — — as to ac- quaintance ib, INTERROGATORIES as to the receipt of monies Page 558 as to man- ner of living, &c. expenses of fa- mily, &c. 559 expenses for travelling ib. whether any other means of providing for his family ib. as to similar employments ib. as to the sale, freightage, and expenses of a ship 560 relative to an inclosure 56l to prove the lord's assent to the inclosure ib. to prove the agreement of the land owners to the inclosure ib. to prove the survey made at the general charge of the land-owners 26. to prove the general meeting held between the proprietors of S. and the ad- joining townships 562 to prove the probable quantity of plaintiff's allotment ib. for the pur- pose of examining a captain of a packet, as to one of his pas- sengers, &c. 563 for a variety of matters ; — to prove a death, a register, a notice, by what au- thority an agreement signed, an agreement for lease, service with copy, payment of annuities, a conveyance and receipt of con- sideration money, to prove note of hand, and other matters 664 to prove a ib. death registry notice to prove a ib. to prove a ib. to prove by INDEX. XIX what authority agreement was signed Pas^e 56-1 INTERROGATORIES to prove an agreement for a lease 565 as to the payment of annuities ib. to prove con- veyance and receipt for consi- deration indorsed thereon 5G6 ' to prove (he finding of old deeds, surveys, &c. ib. ■ ' to prove a will or other writing in the words it contains ib. to prove no- tice ib. to prove re- ceipts upon deeds ^07 to prove the consideration money mentioned to be paid in a deed, to be really and bona fide paid ib. to examine as to boundaries, customs, mo- duses, &c. 568 to prove co- py of record ib. to prove co- pies of the registers, baptisms ib. to prove two bonds, and as to the circumstan- ces for which they were executed ib. to prove a tender of money and refusal 569 to prove the amount of a mortgage debt ib. to prove note of hand 569 to prove in what manner, and at what time the balance of accounts of partnership were made up ib. as to pos- session of an estate 570 as to what property was possessed specifi- cally bequeathed ib. — ■ to prove debts due ib. to prove the identity of a person ib. INTERROGATORIES to prove the entry in the navy-oflice books Prifre 571 the title of for the examination of a party^^ro interesse suo ib. the title of for examination of a party ex- amined pro interesso suo ib, order to add one to those already exhi- bited GlO to add one as to exhibits, pubhcation having passed 6ll INTESTATE property bill for an account of 90 — estates, interroga- tories as to 503 ISSUE, interrogatory to prove 492 , to prove that they are alive 524 JOINTURE, decree to confirm 65 1 , decree to set out 652 JUDGMENT, order to confirm on writ of error notwithstanding in- junction 596 L. LEASEHOLD, charge, inquiry, prayer as to, in a bill against executors 49 property, interro- gatories as to 510 LEGACY, bill for the payment of 100 , bill for, and an account 271 LEGAL representative, not being, plea of 444 LEGATEES, bill by, for the lega- cies 112 LE'.GATEE, answer of, to elect to take under the will 397 LESSEE against lessor, bill for a specific performance 77 LETTERS and messuages, &c. inquiry as to 23 — , interrogatory to jjrove 480 . . interrogatory to prove 520 XX INDEX. LETTERS written, to prove and the motive Page 556 LIMITATIONS, statute of, plea of 443 LOUD of manor's assent to an in- closure, interrogatory to prove 661 Mayor's Court, bill to re- move a cause out of 312 LUNATIC, interrogatory as to what his property consists of 505 M. MANOR, inquiry after, the profits of 54 MARRIAGE, bill to perpetuate the testimony of 318 of female plaintiff, bill of revivor in consequence of 342 , interrogatory to prove the knowledge of 492 , interrogatory to prove 493 interrogatory to prove, and the having a child ih. MESSENGER, order for,on a cepi corpus 599 MONEY won at play 257 MORTGAGE debt, interrogatory to prove the amount of 569 MORTGAGED premises, petition for a sale of, mortgagee being a bankrupt 454 MORTGAGEE, bill by, against mortgagor lt!6 MORTGAGEES, answer of 401 N. NAVY-office books, to prove an entry therein 511 IVE EXEAT REGNO, petition for 470 , order for 609 NEXT of kin, bill by, for their share of property, an injuction 95 NOTE, promissory bill, for an ac- count of principal and interest 150 NOTE of hand, interrogatories to prove Pag^ 569 NOTICE, charge of, in a bill by first vendee against vendor and an after purchaser, injunction from cutting wood, &c. 83 , part of a bill where the defendant has notice of adverse claims ib. , interrogatory to prove its being given 523 , interrogatory to prove the delivery of ib. -, interrogatory to prove that it is intended to employ an- other person • 557 , interrogatory as to 564 NUNC FRO TUNC, to enter order 591 NUNCUPATIVE will, answer of defendant trustee under 395 O. OATH, order to answer, without, attestation 585 OBSERVATIONS upon bills of certiorari 310 upon answers 381 upon demur- rers 415 upon affidavits 636 ORDERS forms of, for various oc- casions from 573 to 635 ORDER for injunction on attach- ment for want of appearance 573 for injunction on attach- ment for want of answer ib. for injunction o» dedimus, and order for time ib'. for injunction to stay waste ib. for an injunction to stay printing books 574 for an injunction on ii dedi- mus, and to extend to stay pro- ceedings on plaintiff's bail bond ib. to dissolve injunction nisi ib. INDEX. XXI ORDER to amend by adding par- ties on paying costs of the day Page 574 ' to dismiss bill for want of prosecution 575 where a notice to sue out execution had been served that the same should stand over, and the benefit of the notice saved ib. to amend a bill on payment of 20s. costs. ih. to amend a bill without costs, the defendant having ap- peared but not answered 576 . to amend a bill without costs, the defendant not having appeared ib. to amend a bill without costs after answer ib. to amend a bill and answer exceptions at same time ib. ■ to withdraw a replication and amend a bill ib. • to amend answer 577 to amend a bill by adding parties, requiring no further an- swer from the defendants, who have answered ib. to amend by making some of the plaintiffs defendants ib. to amend a bill on pay- ment of 20s. costs to some of the defendants, and without costs as to others, requiring no fur- ther answer 578 to amend a bill without costs, the defendant submitting to put in a further answer ih. to amend a bill after an- swer, the plaintiff having excep- ted thereto, and no other answer coming in ib. • fur an attachment and all ether proceedings of contempt returnable immediately ib. to appoint a defendant a clerk in court, pursuant to the statute 57*J • to accept exceptions ib. to refer exceptions at de- fendant's request ib. to refer exceptions ih. to stay proceedings on the master's report, exceptions being filed Page 5S0 ORDER to procure a report in days, and continue an injunction in the mean time ib. , examination to refer ib. to refer examination of commissioners of sequestration 581 — for a commission to assign a guardian ib. for commission to examine in term time ib. for commission to examine witnesses ib. for a subpoena to rejoin, re- turnable immediately, and for a commission 582 to renew a commission ib. to appoint a guardian in court ih. -~- to dismiss without costs, defendant not having appeared ib. — — ■ to dismiss a bill after an- swer, plaintiff not having pro- ceeded ib. for a commission to plead, &c. 583 to dismiss a bill after a re- plication ih. ■ to dismiss a bill with costs at the plaintiff's request ib. to dismiss a bill without costs by consent ib. for a general dismission at defendant's request upon the hearing, plaintiffhaving not come into court 584 to answer by committee ih. — for time to answer ib. for time to answer cross- bill, after answer put into ori- ginal bill ib. for a general dismission on hearing 585 — ' — to dismiss a bill of review on hearing ib. to give security bclbre ob- liged to answer ib. • to answer, without oath or attestation, upon honor ih. XXll ir^DEX. ORDER for time to answer on en- tering an appearance Page 586 .^ to answer separate, and commission abroad to assign guardians ib. . to answer separate ib. ■ ■ to refer defendant's an- swer to the plaintiff's bill to the master for impertinence and scandal ib. — to refer a bill for scandal and impertinence 587 to expunge the imperti- nence of the plaintiff's bill and to tax costs on motion ib. to accept bill paying costs out of purse ib. for commitment to prison of the F/eef, the fourth answer being reported insufificient 588 to examine a defendant ib. to examine witnesses de be- ne esse ib. to enlarge publication ib. — to pass publication 689 to enlarge publication when it has passed ib to use depositions ib to confirm a report upon commissioners' certificate, or as to purchase ib. to confirm by consent of some defendants, and nisi as to others 590 to confirm a report abso- lute ib. , admittance of a defen- dant in yt>rm«/>«M/»en's ib. , admittance of a plaintiff in forma pauperis ib. to serve an attornev-at-law 591 'for an election either to pro- ceed at law or equity 591 to enter order nunc pro tunc ib. to revive proceedings ih. to refer second answer 592 to refer second answer on submission ih. for liberty to exhibit inter- rogatories as to the credit of a witness ib. ORDER for a Serjeant at Arms Page 592 for Serjeant at Arms, for want of examination, unless de- fendant puts it in in four days 593 for Serjeant at Arms, foi want of further examination ih. to produce books in four days, or a Serjeant at Arms ib. for a Serjeant at Arms on the return of a messenger 594 for a sequestration against a member of parliament ib. for a distringas 595 for an alias distringas ib. for pluries distringas ih. for a distringas against a body corporate ib. for a sequestarion on dis- tringas et alias et pluries dis- tringas ib. for sequestration against defendant in prison, for non-pay- ment of money pursuant to de- cree 596 to confirm judgment on a writ of error, notwithstanding injunction ib. for a subpoena scire facias ib. to revive by subpa:na scire facias ib. for senior six clerk to be assigned as guardian to infant, after brought into court by mes- senger 597 for a messenger to bring an infant into court to have a guar- dian ib. -, when the court appoints the defendant a clerk in court to appear pursuant to the act ib. for an alias Jiabeas corpus cum causis, where defendant was not brought up by habeas corpus 598 for defendant to appear pursuant to the statute, 5 Geo. III. ib' clerk in court to attend ih. — — , for clerk in court to attend INDEX. XXlll at the hearing, with a reccrd of bill to have it taken pro coufesso Page 598 ORDER for a messenger on a cepi corpus 599 that defendant be turned over to the Fleet, and habeas corjms cum causis directed to warden ib. • for the defendant to be turned over to the Fleet ib. , another, for habeas corpus 600 — for habeas corpus, on de- fendant being in custody ib. — for defendant to be remand- ed to tiie Fleet, and for an alias habeas corpus ib. for defendant to be remand- ed to the Fleet, and a pluries ha- beas corpus 601 for defendant to be remand- ed to the Fleet and for alias plu- ries habeas corpus, and clerk in court to attend to speed a cause to revive to prove exhibits for further time for further time on application ~ to refer it to the master to see who set counsel's name to bill 603 ib. ib. 602 ib. ib. third ib. for a guardian to an insane person ib. to tax a solicitor's bill ib. to make decree absolutezi, for an infant to convey 604 to appoint a receiver as to several kinds of estates, and of an estate in Ireland ib. to tax costs no relief being prayed by the bill 605 to make an agreement an order of court ib. to examine feme coverts separately ib. — to dissolve an injunction, unless cause revived 606 to answer by committee ib. for sheriff to make return on attachment ib. ORDER to vacate recognizance of a receiver Page GOG for a writ of supplecavit ib. for a commission to set out and distinguish copyhold from freehold lands ib. to see which bill is most for infant's benefit 608 to deliver long annuity or- ders out of the bank ib. for arguing exceptions ib. on arguing plea and de- murrer, where overruled, va- riations where they are allowed, and when ordered to stand for an answer ib. for sale of annuities and payment of cash out of bank 609 for ne exeat i-egno ib. — — to disallow cause, and dis- solve injunction ib. to adjourn petition 610 to answer vinculis, fourth answer insufficient ib. to add an interrogatory to those exhibited ib. to answer exceptions to a decree of charitable uses ib. to add an int'^rrogatory as to exhibits publication having passed 611 to make award an order of court ib. to amend bill, l\v making some of the plaintiffs defendants ib. for time for husband and wife to answer separate, although defendants do not live separate ib. for arguing demurrer in petty bag 612 , dem,urrer to adjourn ib. to confirm proceedings un- der act 5 Geo. III. ib. for a certiorari to remove cause out of the mayor's court it. to dissolve injunction on de- murrt-r being allowed ib. for capias in wiihernam ib. for commission on master's certificate ib- 87 XJQV IMjLA. ORDER, exccpliouh. and fiiitiicr directions, opened separately Page 614 ■ for IJRie to answer cross- bill after defendant lias answer- ed original bill ib. ■ for habeas corpus, defendant not being able to give security on ne exeat regno ib. , habeas corpus to gaoler of county Palatine of D. ib. , habeas corpnts to county Palatine of L. 6l5 , habeas corpus on applica- tion of sherilf, plaintiff not ap- plying to bring defendant up ib. for injunction against mem- ber of parliament 616 , injunction to stay pro- ceedings in execution at C. ib. -, injunction to deliver pos- session and deeds to the plain- liff ib. ', injunction to deliver pos- session to plaintiff, defendant re- fusing 617 to raake bonds of submis- sion, order of court ib. that proceedings in petty bag may be made a concilium ib. of reference to arbitrator, who is to examine upon oath. Costs to be in his discretion, and no bills to be filed against him as arbitrator 634 , upon a petition, for the sale of estates 635 ORIGINAL bills, observations upon 60 FAR! PASSU, bill by creditors to be so paid 2 14 PARTICULAR of an estate, in- terrogatory to prove ^32 PARTIES, demurrer for v/ant of 419 , interrogatories as to knowledge of 47'> PARTITION, prayer in a bill for Go • - ■ — . decree of. and that infants ihouid h PERSONAL estate, inquiry as to 52 PERSONALS, interrogatories as to 508 PETITION for sale of mortgaged premises, the mortgagee being a bankrupt 454 • to call a meeting of commissioners for the purpose of proving a debt recovered b}' action against the bankrupt 455 by assignees against their bankrupt, who was an exe- cutor and residuary legatee, to restrain him from receiving fur- ther part of his testator's pro- perty, and to pay what he had so received 458 • to prove an annuity or the value thereof '460 by creditors against the assignees, under a commis- sion of bankruptcy, to have them removed, they not being creditors but the friends of the petitioning creditors, and for them to ac- INDEX. XXV count for what had come to their hands and deliver up all papers, &c. Page 4Gl PETITION by a bond creditor to have certain property assigned to him, as a security, sold, and to prove the deficiency under the commission 46-1 to have certain shares of stock transferred to each pe- titioner, they having attained their respective ages, with a de- cretal order recited. Opinion as to the affidavits necessary as to coming of age, and affidavits of incapacity to maintain infants without an allowance 4G6 by creditors for leave to come in and prove their debts, after the time limited by the court had expired, stating they had not seen the advertisements 469 for a iVe exeat resno to prevent the husband from going beyond sea, until he has settled alimony on his wife, stat- ing an appeal to the high court of delegates^ excommunication 470 to be discharged from the Fleet 471 of appeal 472 PLEA of the statute of frauds, and answer to some part of the bill, with notes, pointing out where it is wrong 440 of the statute of limitations 443 , defendant not legal represen- tative 444 of the statute of frauds to a parol agreement, with a state- ment of the bill 445 of bankruptcy 447 of alien enemy 448 PLE;^A (JOINT) of a valuable con- sideration by executors of jmr- chaser 449 PORTION, bill to have h raised 124 POSSESSION, of an estate, inter- rogatories to prove 489 PRAYER, observations upon P. 8 for an account of timber cut, and to restrain defendant from cutting down more timber, or from committing any otl>er waste ih. — usual one 1> • — that defendant may be obliged to put the estate into suf- ficient repnir, plaintiff waving all right, &c. to manure and cul- tivate the same according to the terms of the said lease 17 for an account of timber cut, and to restrain defendants from cutting down more timber, or from committing any other waste ih. for an account of monies produced by sales 29 that an account may be taken of the money paid by the defendant on the assignment of mortgaged premises 45 for the discovery of writ- ings to assist in the prosecution of an action at law 49 for an account of rents and profits of leasehold premi- ses, and for a receiver 50 for the payment of a le- gacy out of real estates 51 for an account of rents, fines, heriots, iv;c. of a manor 55 to a bill of foreclosure 56 to a supplemental bill 57 to a bill filed by part- ners after the dissolution, against the present partners, to have the stork, premises, and effects, sold for payment of old debts, and an injunction to restrain them from alienating the said concerns. "jZ to a bill filed by heir at law against devisee to recover possession of estates ib. and interrogatory in a bill against assignees, for an ac- count of separate estate of bank- rupt 59 to a bill of partition ih. that an account mav be taken ©f the separate estate and XXVI l.NDEX. effects which has been received Page 59 PRAYER and application to a bill of partition GO and application for a partition 6l for dividing the rents and profits between plaintiff and all other persons, according to the writings relating to such es- tates ib. in a bill against trustees for selling part of the trust fund, and converting it to their own use, and injunction to restrain the bank from permitting the other part to be transferred 62 to a bill filed by persons entitled to have trust stock di- vided among them, and assets of the seller applied to make good the sum which ought to have been settled ib. to a bill for the specific performance of an agreement, on the faith of which plaintiO'had paid a large sum of money, and had also expended considerable sums in repairs and alterations of the premises, that if good ti- tle could not be made, plaintifl' might be taken to be mortgagee 83 as to money expended in repairing premises, and making the same suitable to plaintifi^'s business ib. to restrain defendants from cutting wood upon or com- mitting any other waste 88 that defendant may grant a lease of the farm and lands pursuant to agreement 90 that an account may be taken of the estate and effects possessed by the defendants, and also an account of intestate's debts 91 to take an account of the estate of an intestate, and an account of intestate's sepa- rate debts 94 ' to take an account of in- testate's debts, and that ©ne-third of intestate's estate may be ap- plied to orator Page 96 PRAYER that an account maybe taken of the estate and effects of the testator, which have been possessed by the defendant 100 to carry a will into exe- cution 103 to take an account of the rents, profits, and produce of tes- tator's estate, which has been received by defendant 106 ■ — — to take an account of the estate and effects of testator, and also of the debts and legacies of the testator 107 as to the household goods and effects given to de- fendant 1 10 that an account may be taken of testator's estate and ef- fects that are undisposed of 112 as to the claiming of a copyhold estate 114 for an account of the trust property which has been received by defendant 117 for releasing trust pre- mises under a marriage settle- ment ib. for appointing a trustee, &c. 118 that defendant may be decreed to replace stock pursu- ant to the teims of the said bond 120 to take an account of the rents and profits of the es- tates received by defendant 123 to take account of the principal and interest owing on the security of the premises 128 as to the account of mo- nies received which have not been duly accounted for 131 for the discovery of a ship's cargo, &c. 135 to take an account of the matters and transactions re^ lative to the partnership deal- ings 143 as to the dissolving of INDEX. XXVII the copartnership bushiess, &c. Page 145 PRAYER for an account of the monies received and paid by your orator in the partnership deal- ings, &c. 147 to restrain defendant from eollecting or receiving any of the debts owing to the part- nership business, &c. 149 to take an account of the principal an.' interest owing to plaintilT on a promissory note, drc. 16] as to the deeds and writ- ing relating to mortgaged pre- mises, &c. 159 for the redemption of mortgaged premises by heir at law, and also for a discovery of defendant's title l6l that defendant may be decreed to pay to orator what shall appear due to him for prin- cipal and interest on his mort- gage ib. ^ — for a foreclosure l6l for the delivery of deeds and writings belonging to mort- gaged premises lG5 for a foreclosure, deli- very up of title deeds, injunction from proceeding at law, and for the appointment of a receiver ib. — as to the delivery of ti- tle deeds and writings concern- ing mortgaged premises, &c. 167 of foreclosure, and for the delivery of title deeds, ac- cording to an agreement for that purpose, so as to prevent the said deeds being delivered to a subsequent mortgagee ib. for redemption of pre- mises, and for an account of their annual value, &c. 170 to take an account of what has become due or ought to be paid by defendant for the vent of the premises occupied by hira ib. for a foreclosure, and a reference to the rtaster to take an account, &c. -P^^e 173 PRAYER for the delivery of deeds, writings, &c. ib, for redemption 176 for redemption, and for the discovery of prior incum- brances 178 for redemption of copy- hold premises, to have a bond delivered up te be cancelled, and an injunction 183 for redemption, &c. 184 to have goods delivered back, which were deposited by way of security 185 by assignee of a bank- rupt, for an account of money produced by sale 189 to deliver deeds, &c. up to be cancelled 193 that an estate may be applied in payment of debts and legacies, &c. 196 that an account may be taken of the several rents and profits of intestate's estate 199 as to the sale and pro- duce of mortgaged premises 202 to take an account of the money paid out of testator's es- tate and effects, &c. 207 as to the receiving of the rents and profits, and also of the produce of timber felled on tes- tator's estates, &c. 209 that an account may be taken of the personal estate of testator, possessed by defen- dants 211 for a discovery to enable trus-tees for creditors to prose- cute an action 214 for discovery of a sum of money demanded against trustees under an as.-;ignment ib. that defendants may be decreed to deliver up the estate of plaintiff for payment of a debt due to creditor 219 to enforce a creditor to receive a dividend, and an inj unc- tion at law ib. XXVlll INDEX; PRAYER for the delivery up of an agreement under certain cir- cumstances, to be cancelled Page 223 . that an agreement may be delivered up to be cancelled ib. for the recovery of pre- mises 226 for the delivery of deeds to be cancelled 230 for the surrender of co- pyhold estate 235 respecting the sale of the estates of R. B. and that all the title deeds and writings may be produced 244 that defendants may set forth a true account of the es- tates which has been assigned over to the trustees for the be- nefit of creditors, &c. 247 respecting testator's per- sonal estate, and an account of rents and profits for the payment of a debt 252 that defendant may set forth an account of the deljt due to oratrix by the will of the tes- tator ib. • — to have a wanant of at- torney, a bond, and other spcu- rities, delivered up, part of the money being won at play 251 for the admission of as- sets, &c. ib. to have some proper per- son appointed as guardian of in- fants, with suitable allowances for their maintenance and edu- cation for a certain time 259 to establish a will, and to carry the trusts thereof into execution, and also that an ac- count may be taken of the pro- duce of the freehold estates of testator 2G2 that the wills of A. C. &c. may be established, and that it may be decreed to pay plain- tiffs and defendants a just pro- f)ortion of the dividends due thereon 2f>C PRAYER to have certain shares of stock transferred there, stand- ing in the name of the account- ant-general, and which formerly belonged to a lunatic Page 2G6 for raising a sura of mo- ney out of testator's estate, and also out of the estates purchased with the money arising by sale of testator's estates 270 that an account may be taken of the personal estate of testator, and also an account of the funeral expenses, debts, and legacies, and that the defendant may be decreed to pay to your orator his legacy, on his attain- ing 21 years 273 for an account of the proceeds of a musical work, an injunction to prevent a farther sale 295 PRETENCES, observations upon 4 by the heir that an instrument made according t(i the laws of Scotland passed an estate in the island of Jamaica, though not executed as the law of that island requires, and charge to the contrary 5 in a bill for specific performance, lessee against les- sor, that it was not in writing, and charge that this was imma- terial, plaintiff having repaired the premises, and expended mo- ney in confidence of the agree- ment 1 9 and charge in a bili that personals are insufficient, and are payable out of real es- tate ; doubt true construction of the will , pretence that the will will not extend so as to pass real estates, &c. 20 and charge in a bill that defendants have forfeited their respective rights under the testator's will, which contained a clause that in case the trustees were molested by the devisees, that their devise should eease 21 INDEX. XXIX PRETENCES and charges in a for settlement of partnership ac- counts, where only an agent for, and no articles which had been delivered by defendant Pa^e 29 that plaintiff hath received monies 30 —— of an account de- livered ih. ready to account 3 1 • and charge in a bill to set aside an assignment of effects for the benefit of some re- lations, the same being without valuable consideration, and when assignor was considerably in debt, and charges thereto 31 PRETENCE of illegitimacy and charge of marriage between plaintiff's father and mother 33 -, &:c. where defendants claim under a recovery ib. and charge in a bill by vendors against vendees for the specific performance of an agreement 34 charge and inquiry as to a release or discharge set up by defendant?, and charging fraud in obtaining the same ib. • , charges, and inqui- ries, in a bill brought for the dis- covery of the account upon which a remittance was made, plaintiff claiming part of it as a specific remittance for him 38 and charge in a bill for the payment of an annuity', charged on an estate lately pur- chased by defendant, charging him with notice 40 of mortgage in a bill brought for sale, or mortgage of estates 41 that a legacy and annuity left to plaintiff were in discharge of a bond, and of her dower; charge contrary 42 and charge in a bill by vendee against vendor, for the specific performance of an agreement 43 and inquiry where the attorney-general is a party, on account of a debt due to the crown ^« , bill for the transfer of 263 • in trade, interrogatories as to 510 SUPPLEMENTAL bill, conclu- sion and prayer to 57 SUPPLICAVIT, order for a writ of 606 SURVEY made of common lands at the expense of the common- ers, for the purpose of inclosing 561 SURVEYOR^ interrogatories as to ib. TENDER of money, interrogato- ries to prove 480 INDEX. XXXI TENDER and refusal of money, interrogat«ry to prove 561) TIMBER, prayer for an account of, and to restrain from cutting more 17 TITLE defective, answer of a de- fendant to a bill for a specific performance on that account 404 not being good, a bill for 8 1 deeds to be given up 92 to a joint demurrer 419 to a joint and several de- ^ murrers, a plea of some of the defendants, and answers as to some of them 425 — — — — , interrogatory to prove plaintiff's 488 TOMB stones, inscriptions upon interrogatory to prove 490 TRUST term, bill to redeem iGl TRUSTEE, bill to remove one, he refusing to act 1 1 8 , answer of, submit- ting to act as the court shall di- rect 397' TRUSTEES, prayer in a bill against, for converting property to their own use 62 , bill to remove them, and for the appointment of new 116 , bill for the appoint- ment of a new one, there being no power for that purpose in the deed 117 U. UNDERWRITERS, bill by, for a fraud practised against them 1:^2 — , bill by, a- gainst insurers and their agents 136 V. VALUABLE consideration, joint plea of -149 VENDEE, bill by, against vendor for a specific performance lb W. WASTE, injunction- as to IG , inquiry in a bill to stay 55 , order for injunction to stay 673 • , affidavit of having com- mitted 638 WEST INDIES, interrogatories as to an estate in the 512 WIDOW to make her election, bill for 104 WIFE, bill by, against her hus- band for a legacy left to her sole use 278 WILL, pretence that it is not va- lid, that it did not pass real es- tates, &c. 20 obtained by fraud ; charge in a bill to set the same aside 26 , bill by executor to esta- blish the same, and carry the trust into execution 101 , bill against executors to establish a, &c. &c. 104 — , interrogatory to prove a search for in the proper office 491 , interrogatories to prove 494 , interrogatories to prove, by all the subscribing witnesses 41/6 WITNESS, order for liberty to exhibit interrogatories as to the credit of a j92 WITNESSES, bill to perpetuate the testimony of, with respect to boundaries 315 , bill to perpetuate their testimony 517 , as to a marriage, bill to perpetuate their tebtiuiony 318 , their hand-writiug, interrogatory to prove i.'^O WORDS of course preceding the interroga'.iug part nf a bill 7 pieceding an answer 10 88 XXXll kXDEX. WORDS of course in the conclud- ing part of an answer 10 preceding a joint answer ii .. preceding an answer of infants by their guar- dians ih. at the conclu- sion to an answer of infants by their guardian ih. preceding an answer where persons of full age and infants answer together ih. preceding ex- ceptions to an answer, &zc. 12 to an answer after exceptions ih. preceding the answer and examination put in to interrogatories exhibited by a master in chancery ih preceding ex- ceptions to a master's report, as to the sufficiency of defendant's answer 13 WORDS of ceurse, another form of exceptions to the master's re- port 14 ■ used in the in- rolment of a decree made upon bill and answer, the defendant making default at the hearing before the answer 642 before the or- der on hearing 643 preceding the order to confirm the report nisi ih. preceding the order to confirm the report ab- solute ih. preceding the order to made the decree ab- solute 644 preceding a master's report ih. 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