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From the Library of
Professor David Mellinkoff

Who donated his collection

TO THE

UCLA School of Law

Hugh & Hazel Darling

Law Library

August 1999

"Cleansed of words without reason, much
of the language of the law need not be
peculiar at all. and better for it."

The Language of the Law
BY David Mellinkoff

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REPORTS

CASES

Argued and Determinejo

I N T H E

%\^ Court of Cfiattterp,

AND

Of Two Special CASES

Adjudged in. rhe Courts of Common La^j:

- a n D vr / ! ^ -■ Colledcd by

William Peere Williams^

Late of Cray's Inn^ Efq; V

VOL. III.

Publiflied with Notes and References, and Two
TABLES; one of the Names of the Cases, the
other of the Principal Matters:

By his Son William Peer' Williams, of the Inner I'emple, Efq;

In lie SAVOY:

Panted by Henrv L[ntot, Law-Printer to the King's
t Excellent Majeft- ; for C C^SHJO^IIC in Graf s Inn.
vlDCCXLIX.

It-

,2^

Preparing for the PRESS, and mil

he puhlijhed mth all convenient Speed,

EPORTS of CASES Argued and Deter-

mined in the High Court of Chancer t.

By the late William Melmqth» Efq; one of
the Benchers of the Honourable Society of
Lincoln's Inn.

To the Right Honourable

ARTHUR ONSLOW,Ei:q;

Speaker of the Houfe of Commons,

And one of His Majesty's Mofl: Honourable Privy Council.

SIR,

I Have had very little Doubt with
my felf, to whom I fhould addrefs
the following Reports. The long
Friendftiip, with which you honour-
ed the Author of them, and the
Efleem fhewn by you on all Occa-
iions for the Profeffion, might juftly
direft them to you as their Patron.
But there remains a ftill rtronger
Reafon to be offered in Excufe for
the Trouble now given you ; which
is, that from a comprehenfive Know-
ledge of the whole Extent of our
Vol. III. A Laws,

The DEDICATIOK

Laws, you feem to have feleded fuch
Parts of them for the Objed of your
particular Attention, as are more im-
mediately founded on the eternal
Rules of Equity and Juflice.

In Conformity to thefe Rules, you
will here find, Sir, the greatefl Law-
yers our Country has produced, lay-
ing afide all thofe Diftindions and
Refinements, that would, in their O-
pinion, render the Science a Matter of
(a) Memory, rather than of Re af on and
Judgment, and employing the Talents
they poffeffed, in relieving Men made
unhappy by unforefeen Accidents,
and in detedling Frauds fo contrived,
as to be out of the Reach of the or-
dinary Courts of Judicature.

I cannot forbear obferving, when
I confider to whom I am applying
my felf, that all the Eminent Per-
fons whofe Decifions are here con-
tained, were of the utmofl Credit
and Influence in that refpedable Af-
fembly wherein you have fo remark-
ably

{a) See the Lord Cowpers Argument, when he gave Judgment
in the Caufe of Newcomen verf. Barkham, 2 Vern.jzg. and the
Lord Talbot'^ in that of Cook verf. Arnha?n,.poJl 286.

The DEDICATION.

ably long, and with fuch Dignity,
prefided; that it was there they laid
the Foundations of their future
Greatnefs, and recommended them-
felves to the Efleem of all good Men,
by happily (/>) tempering, what were
before thought incompatible, the
Prerogative of the Crown and the
Liberties of the Subjed.

It is the Remark of one of the
greateft Statefmen and Patriots of all
Antiquity, That (r) none of a Mans
Illuflrious Adions, when in Office
and Authority, are fo appropriated
to him, as the Laws which he has
promoted for the Benefit of the Com-
munity. As a Proof of this, he in-
ftances in many of his own Country-
men, who, though highly diftinguiOi-
ed on other Accounts, \¥Ould, he
thinks, have chofen that their ge-
neral

(3) Res olim diflbciahilcs, Principatum ac Libcrtatem Mil-
cuerunt. Tacit, in vita Jul' yfgn'cola de Impevatoribus Nervd
& Trajano.

(c) Ecquid eft, quod tarn proprie dici poflit adlum ejus, qui
Togatus in Republica cum poteftate imperioq; Verfatus fit, quam
Lex? Qusre ada Gracchi; Leges Sempronias proferentur. Quaere
Syll^j Cornelia;. Quid ? Cnei Pompeii tertius Confulatus in qui-
bus adis Conftitit ? Nempe in Legibus. A Caelare ipfo fi quje-
reres, quidnam egiflet in urbe, Sc in Toga? Leges multas refpon-
deret fe & praeclaras tulilTe. Philippic pritii.

The DEDICATION,

neral Charader fhould be determined
from their Merits of this Kind.
What National Acknowledgments
then can fufRciently reward the Ser-
vices of him, who has fo carefully
watched over our Conflitution, and
been conftantly engaged in promo-
ting Laws for its Support and Im-
provement !

/ am,

With the greatefi RefpeB, Sir,
Tour mofl ohecUent humble Servant,

W" Peere Williams.

THE

PREFACE.

^ROM the favourable Reeeptiojt given
to the Tvjo Volumes of Reports that
I published fome Time fmce, I have
been encouraged to let this Third ap-
pear ; the Originals of all ivhich the
Author left Toritten in his ov)n Hand",
not "without a De/ign, as from feveral
Circumflances may be conjeBured, of
their being made Public.

It may be proper to apprife the
Reader^ that in the follomng Sheets
he mil meet mth feveral Cafes, prior
in Point of Time, to fome that are
^ Vol. III. a printed

The PREFACE.

printed in the former Volumes ; the
Reafon of ivhieh is, that the Author
having, through fome Accident or other ^
omitted to give the final Determina-
tions of thefe Cafes, it ivas not judged
advifeable to infert them, imperfeil as
they then were: But the Regijlers Books
having been Jince fearched, all Defers
of that Kijid viill he found here fup-
plied.

Sir Edward Coke, /;/ the Preface to
his firft Inftitute, takes Notice of its
having been a peculiar Felicity attend-
ing the judicious Writer on Tohofe Book
he comments, that he vjas Cotemporary
vjith feveral Famous and Expert Sages,
from whom that Work received great
Furtherance. And, poj/ibly, v)hen v)e
call to mind thofe Toho ivere the Orna-
ments of the Courts, both of Law and
Equity, during the Time of our Au-
thors Attendance, (with moft of whom
he was known to have had fome Inti-
macy y) the Reports now under Confi-
deration may not he thought deflitute of
the like Advantages,

The PREFz\CE.

/// this Volume, the greatefl Part of
'which confifls of Cafes in Equity, I
have taken the Liberty to infert T'wo,
that 'Were adjudged in the Courts of
Common Laiv, Both of them on SubjeBs
of Importance, but efpecially the latter ;
in nx)hich, be fides the Argument offered
at the Bar, is contained an authentic
Report of a Refolution delivered by that
Excellent Perfon, Toho at prefent pre-
fides in the Highefl Court of Judica-
ture, and whofe Abilities and Integrity
have rendered us infcnfible of the Lofs
of his immediate Predecejfor.

I mufl not conclude ^without adding
a Word or tivo in RefpeB to the Cafes
and Obfervations placed briefly, by ivay
of Note, at the Bottom of the Page,
and vjhich, as they make that Part of
the Work ivherein I have been chiefly
concerned, may moft fland in Need of
an Apology. All I fhall fay in their
Behalf is, that they are, except a very
few, which will be too eafily diflinguifh-
ed to their Difadvantage, of the fame

Autho'

The PREFACE.

Authority mth the Text, (being taken
from the Authors Manuscript) and
feem to illuflrate the Pajfages to "which
they refer. What Regard they may de-
fer-ve, is intire/y fubmitted to others.

oaober I, 1749. y^ Y ^^

A TABLE

TAB L E

O F T H E

Names of the Cafes

T O T H E

THIRD VOLUME,

Difpofed as in the Two former ;

Wherein alfo are diftinguifhed by Afterisks [*] thofe
Cafes that are for the mofl part taken from the Re-
porter's Manufcript, and inferted briefly, by way of
Note, at the Bottom of the Page.

ADAMS V. Pierce. Page 1 1
* Addenbroke and Crofs.
222
* Allen -u. Pendlebury.

142
Annefley v. Afliurft. 282

Anonymous. * go,
314, *327,
Arnham and Cook.
Aftiton V. Afhton.
* Afliton u Curzon,
Vol. III.

III,

379.

* 294,

*389

283

384

244

Afhurft ^«i Annefley. Page z^z
Atkinfon v. Hutchinfon. 258

* Attorney General v. Leigh. 146
Attorney General v. Rigby. 145

* Atwood V. Lamprey. 128

* Bacon (Lord) his Ordinances cited,
as to the Cafes in which a Ne
Exeat Regnum ought to be grant-
ed. 313

Baine and Willing. 1 1 3

b * Baldwyn

A Ta b l e of the Names of the Cafes.

* Baldwyn v. Bannifter. Page 2^2 \

* Bank of England a?id Morrice,

402

* Bannifter and Baldwyn. 252
Banks and Mill?. i
Barley & al' and Crufe. 20
Barlow v. Bateman. * 65

* Barrington (Lord) 'v. Searle. 397
Bateman and Barlow. 65

* Bell v. CommilTary Hyde's Wife.

* Belfti "J. Harvey. 288
Bendifh ^;/J Wrotefley. 235

* Berkeley and VVefton. 244

* Berny i\ Pitt. 293
Bettifon ^^ Farringdon. 363
Bewick v. Whitfield. 267

18, 319
381

* Bridgwater (Duke of) v. Sir Fran-
cis Edwards. 257

* Briftol (Countefs of) -0. Hunger-
ford, where fee alfo an Obferva-
tion from the Regifter's Book on
that Cafe, as reported by Mr.
Vernon. 1 94

Brown & Ux* -y. Elton. 202

Brown rtW Piddock. 288

Brunker (ex Parte). 312

Buck 'V. Fawcett, 242

Burron and Low. 262

* Burton v. Lloyd. 285

* Biddle V. Biddle.
Blue 'V. Marfhall & Ux'.

* Booth V. Booth.
Bowyer and Newfome

* Cardy and Lloyd. 313

* Carlton i\ Mortagh. 315
Carliile (Earl of) and Lechmere.

21 1
Carpenter aiid Spettigue, 361

Carteret (Lord) 1;. Pafcall. 197

Carter and Evans and Sharpe. 375

* Cafeburn v. Englifti. 234

Chamburv and Holder, Paze 2 c6

* Chappel r?W Wafteneys. 265
Chaplin v. Chaplin. 229, 245, 365
Charlton v. Low. 328
Chefter i). Chefter. 56

* Chion (ex Parte). 187
Clavering v. Weftley. 402
Clerk <<«^ Cowper. 155
Cleveland (Dux de) and Ofmond.

129
Cole "J. Gibbons & al' 290

Cole and Gibbs. 255

Cook V. Arnham. 283

Cookfon a?id Duke of Somerfet,

390

* Coopers Company and Wildey.

128

* Cofby tf«^ Pakeman. 314

* Cotton and Frankland and Lane.

394
Cowper -y. Clerk. 155

Cowper v. Scott & al'. 119

Cox (Lady) her Cafe. 339

Cox (Sir Charles) his Creditors Cafe.

341
Craddock and Lake. 158

* Crocker fltti Thompfon. 315
Croft V. Pyke. 180

* Crofs V. Addenbroke. 222
Crule & al' i). Barley and Banfon.

* Curwyn v. Milner. 292

* Curzon and Afliton. 244

Da Cofta r. Da Cofta. 140

* Darfton v. The Earl of Orford.

401
Davers (Sir Jermin) 1;. D'cwes. 40
Davis V. Gibbs. 26

* Day V. Savage. 17
« De Gollsi;. Ward. 311
Defliouvrie and Pufey. 3 1 5

* Duncomb u Hanflcy. 3:53

Dunn

A Ta b l e of the Names of the Cafes,

Dunn -"J. Green,

* D'Evreux and Winter.

Page 9

189

Eaft-India Company and London

Aflurance. 326

Eaft-India Company and Wych. 309

126
and The

^57
372
280
306
202

234

Eaft V. Thornbury.

* Edwards (Sir Francis)
Duke of Bridgwater.

Edwards and Vick.
Egerton and Head.

* Ekins a/jd Green.
Elton a??d Brown.

* Englifh and Cafeburn.
Evelyn (Sir John) and Stonehoufe

252
Eyre's Cafe. 13

Farringdon & al' a?id Bettifon. 363
Fawcett and Buck. 242

Ferrers (Earl of) aiid Nightingale.

206

* Finch V. Earl of Winchelfea.

* Fleetwood ^W Gould. 251.

* Fletcher and Lowther.
Flower and Tourton.

400

252

369
Foitefcue Aland 6c al' and Sheldon.

Foley and Jordan.
Fowler v. Fowler.

* Freeman 1;. Goodland.

* FuUham v. Jones.
Furze and Godfrey.

Galton a?!d Mallack.
Gibbons a?id Cole & al*.
Gibbs V. Cole.

104
412

3j)j
411

222

185

352
290

or-

^5:>

Gibbs and Davis.

* Glover and Powell.
Godfrey v. Furzo.

* Goodland afid Freeman.
Goodchild and Jones.
Goodwyn v. Lifter.
Gordon v. Raynes.

* Gore and Weekes.

* Gould v. Fleetwood.

* Grafton (Duke of) v.
mas Hanmer.

* Green v. Ekins.
Green a?id Dunn.

* Grice v. Grice.
Grofvenor (ex Parte).

Page 26
252
185
411

387

134
184

251, 252

Sir Tho-

266

306

49> 50
103

Hales V. Rifley.
Hall V. Hardy.

* Hamond v. Jones.
Hankey and Morrice.

* Hanmer and Duke

210
187
318
146
of Grafton.
266

* Hanfley and Duncomb. 333
Hardy and Hall, 187
Harris v. Ingledew. 91
Harris v. Pollard. 348

* Harwood and The King. ii8

* Harvey and Belfti. 288
Haflewood v. Pope. 322
Head 1;. Egerton. 280
Heard & Ux' 1;. Stamford. 409

* Hender v. Rofe. 124, 317

* Hetherington and Sidney. 146,

H7
116

114

132

35
300

256

176

152

Herbert (Mr.) his Cafe.
* Hickman and Ledfome.
Higden & al' 1;. Williamfon.
Hodfon V. Earl of Warrington
Hodgfon and Studholme.
Holder -j. Chambury.
Holmeden and Lomax.
Hopkins (ex Parte).
Horfey's Cafe.

Humphreys

A Ta b l e 0/ the Names of the Cafes,

Humphreys (Orlando) 1;. Sir Wil-
liam Humphreys. Page 349

Humphreys (Sir William) -v. Or-
lando Humphreys. 395

* Huntingdon (Earl of) -u. Countefs
of Huntingdon. 310

Hutchinfon rtWAtkinfon. 258

Hyde (Commiflary) his Wife and

Bell.

* Jenner 1;. Tracey.
Inglcdew and Harris.

* Johnfon v. Medlicott.
Johnfon 1;. Ogilby & al'.

* Jones and Fullham.
Jones V. Goodchild.

* Jones and Hamond.

288

130
277
222

33
3,8

Jones -u. Earl of Strafford & al'. 79
Jones 1;. Thomas, 243

* Jordan -u. Foley. 412

* Ivy -y. Ivy. 63

Kerridge and Martin. 240

* Kidby and Luther, 170

* King (Sir Peter) his Account of
Abjuration. . 38, 39

* Kingfmill (ex Parte) 1 1 1
King 1;. King and Ennis. 358
King V. Withers. 414

331

Knight r. Knight.

Lake v. Craddock £c al' 1 58

* Lamprey ^//^/ Atwood. 128

* Lane -u. Cotton and Frankland.

394
Law v. Law. 391

Lechmere ^'. Earl of Carliile. Page

211

* Ledfome -u. Hickman. 114
Leigh and The Attorney General.

146
Lewen and Sellon. 239

Lewin 1;. Lewin. 15

Lilly V. Ofborn. 298

Lifter ^«t/ Good wyn. 387

Lomax 1;. Holmeden. 176

London Aflu ranee Company 1;. Eaft-
India Company. 326

* Lloyd -u. Lord Say and Seal. 170

* Lloyd -o. Burton. 285

* Lloyd ^'. Cardy. 313
Lloyd 6c al' v. Spillet. 344
Low "0. Burron, 262
Low and Charlton. 328
Lowther v. Fletcher. 46

* Luther -u. Kidby. 1 70
Luxton V. Stephens. 373

* Lyne v. Willis. 352

Mallack u Galton. 352

Marihall & Ux' tf;?^ Blue. 381

Martin v. Kerridge. 240

Marwood v. Turner. 163

Meal ^«^ Wych. 310

* Medlicott and Johnfon. 130
Mills V. Banks, i
Miller "J. Miller & al'. 356

* Milner and Curwyn, 292

* Molineux v. Powell, 268

* Montagu (Duchefs of) and Raw-
linfon, 264

* Morrice v. The Bank of England.

402
Morrice 1;. Han key. 146

* Moriagh ajid Carlton

A Ta b l e ^f the Names of the Cafes.

Naifh and Tourville. Page 307

Newfome v. Bowyer. 37

Nightingale 6c al' v. Com' Ferrers.

206

North V. Comit' & ComltifT' de

Strafford. 148

* Norton i;. Norton. 317

* Nutton ^WThurfton & de Chair.

237
O.

277
8

Ogilby and Johnfon.

* OnHow (Mr.) his Cafe.

* Orford (Earl of) and Darfton.

401

Ofborn a^id Lilly. 298

Ofmond 1;. Fitzroy & Ducem de

Cleveland. 129

* Packer v. Wyndham. 199

* Pakeman tj. Cofby. 314

* Parker v. Turner. 10
Pafchall and Lord Carteret. 1 97

* Peach and Weekes. 230

* Pendlebury and Allen. 142
Pendrel -u. Pendrel. 276
Pctt and Robinfon. 249
Piddock V. Brown. 288
Pierce and Adams. 1 1

* Pitt and Berney. 293
Pope and Haflewood. 322

* Potter V. Hall. 76, 392

* Powell V. Glover. 252

* Powell and Molineux. 268

* Powes (Lady) her Cafe. 273
Pufey V. Dcfbouvrie. 3 1 5
Pyke and Cvoft. 180

Vol. III. I

Raines and Gordon.

* Rawlinfon v. Duchefs
tagu.

Rex V. Bigg.
Rex V. Burridge.

* Rex V. Harwood.

* Rex V. Raines.

* Rex V. Smith.

Rigby and The Attorney

Rifley a?id Hale. ■
Roberts v. Roberts.
Robinfon v. Pctt.
Robinfon & al' v. Tonge.
Rogers v. Rogers.

* Rofe and Hender.

* RofwcU's Cafe.
Rowlandfon (ex Parte).

Page 134'
of Mon-
264
419

439
118

337

J 54
General.

HS
210

249

398

124, 317
268

405

119

397
239
375

37^

* Savage and Day. 17

* Say and Seal (Lord) and Lloyd.

170
Scott and Cowper.

* Scarle and Lord Barrington
Sellon V. Lewen.
Sharpe v. Carter and Evans.
Sharpe and Taylor.
Sheldon v. Mr. J, Fortefcue Aland

104

* Shepherd v. Shepherd. 234
Shirley v. Comit' Ferrers. yj

* Sidney v. Hetherington. 146, 147
Sidney v. Sidney, 269
Slanning v. Style. 334
Smith V. Turner. 4.13
Somerfet (Duke of) v. Cooklon.

390
South-Sea Company v. Wymondfell.

c Spenfcr

A Ta b l e of the Names of the Cafes.

■n^

Spenfer and Wilfon. Page 172

Spettigue 'v. Carpenter, 361

Stonehoufe v. Evelyn. 252

Storke V. Storke. 5 1

Strafford (Earl of) ajid Jones. 79
Strafford (Earl and Countefs of) and
North. 148

Studholme v. Hodgfon. 300

Style <7«^ Slanning. 334

Tanner v. Wife.
Taylor -u. Sharpe.
Thompfon's Cafe.

* Thompfon ^'. Crocker.
Thornbury and Eafl.

* Thurflon & de Chair v.

Tonge k. al' and Robin fon,
Tourton 'V. Flower.
Tourville v. Naifli.
Turner ajid Marwood.

* Turner and Parker.

* Turner and Smith.

Vick V. Edwards.

295
' 371

126
Nutton.

237
398

369

307
163

10
413

372

Walrond and Wheeler. 63

Ward and Dc Golls. 3 1 1

Wafleneys u Chappel. 265

Webb (Mr. the Conveyancer) his
Opinion as to the limiting over a

184
230

402

244

Remainder in an Eftate for Lives,
after a Grant made thereof to one
and the Heirs of his Body. Page

263

* Weekes v. Gore,

* Weekes v. Peach.
Weflley a7id Clavering.

* Wefton 1'. Berkeley.

* Wheeler '■j. Walrond, where fee
an Obfervation on that Cafe from
the Record. 63

Whitfield and Bewick. 267

* Wildey i". The Coopers Company.

128
Willing 1'. Baine. 113

* Willis ^,>;^ Lyne, 352
Wilfon and Colton. 190
Wilfon V. Spenfer, 172

* Winchelfea (Earl of) and Finch.

399, 400

* Winter i?. D'Evreux. 189
Wife ^W Tanner. 295
Withers and King. 414
Witter "0. Witter. 99
Woolcomb 1;. Woolcomb, 112
Wrottefley 1.'. Bendifli. 235
Wych V. The Eafl-India Company.

309
Wych V. Meal. 310

Wymondfell afid The South- Sea

Company. 143

* Wyndham and Packer. 1 9^

* Yale (ex Parte).

ERRATA.

Page 14. Line 23. inftead of Prececedents read Precedents. P. 48. 1. 13. inftead of en r,
no. P. 318. in the Marginal Contents, inftead of the Heir of A. r. Heir 0/ B. P. 367.
I. 12. in the Notes, inftead of taie by Dcfcent, r. take othertvife than by Defcent. P. Ii8. in
the Note, inftead oi King^ r. The King. P. 325. in tiie Note at the Bottom, inftead oi fee
the Cafe immtdiately folhw'wgi r, fe( the Cafe of Kright v. Knight, poj} 333,

D E

Term. S. Trinitatis,

1724.

Mills verfus Banks. ^]'[

Lord Chan-
cellor Mac-

ON the Marriage of Mr. Lutterell with Mrs. ^lesfieid.
Mary Tregonwelly in 1680, Mr. Lutterell ^^l^^^^^^
made a Settlement of his Eftate ; and Mr. 's, to raife
Tregonwell, the Father of the faid Mary, Ponfons by
made alfo a Settlement of his Eftate ; and in the Tre- R"^'^' i?"^*
^o«B7^// Settlement there was a Term raifed out of the or by making
Treponrvell Eftate (being the Manor of Milton- Abbas in J^^^'^^ ^"^^

o ^ o IjIvcs 2.t the

Dorfet/hire) fubfequent to feveral Eftates fince deter- ancient
mined, to the Ufe of Truftees for 200 Years, Remain- frlntin^ct-
der to the Ufe of the firft, isi'c. Son of the Marriage in pyhoWs on
Tail Male, Remainders over. ^^^ '^^.^

paid to the
Daughters at their Age of i8 or Marriage, or as foon after as the fame can be raifed out of
the PremifTes as aforefaid j the Portions, as it feems, may not be raifed by Sale or Mortgage.

The Truft of the 200 Years Term was, to raife
1 O5OOO /. for the younger Children, Sons and Daughters
of the Marriage, by Rents, liTues and Profits, or by
making Leafes for one, two or three Lives, or for any
Number of Years determinable on one, two or three
Lives, referving the ancient Rentj or by granting Copy-

VoL. III. B holds

De Term. S. TrinitattSj 1724.

holds on Fines ; the Money to be paid to the Daughters
at their Age of Eighteen or Marriage, and to the Sons at
Twenty-one, or as foon after as the fame could be
raifed out of the Premises, as aforefaid. There were
IfTue by the Marriage one Son and two Daughters ; the
Son died when about twenty Years of Age ; the two
Daughters intermarried, the eldeft with Sir George Rook,
the youngeft with Mr. Harvey ^ and he foon after dying,
file married Mr. AJJj*

In 170^ the Lord Cowper decreed this 10,000/. to
be raifed by Sale of the Truft Term, and to carry In-
tereft only from the Time of the Decree. Mrs. Lut'
terell furviving Mr. Lutterell, married Sir Jacob Banks,
by whom Ihe had IlTue two Sons, and died ; and Sir
Jacob Banks and the two Infant Sons were Parties to the
Decree. After the Making of which Decree, S'li Geor^a
Rook and his Lady being dead, and having left an In-
fant Son, and Executors in Truft, the Executors lent
yooo/. to Mr. Jf/j on a Mortgage of this Truft Term
for 200 Years, which Mortgage was approved of by a
Mafter, and the Money placed out in Purfuance of a
Decree that had been made in another Caufe touching
an Account of the Eftate of Sir George Rook.

And now the Caufe was reheard [A] before the Lord
Macclesfield -y when it was inliftcd in Support of the De-
cree, that the fame being made by the Lord Corvper in
1705, (eighteen Years fince) and fo many Things done
in the mean Time ; as the Lending of an Infant's Mo-
ney, put out by a Decree of this Court with the Ap-
probation of the Mafter, and lent by Executors in Con-
fidence of fuch Decree, and as it were, by the Hands
of the Court ; It would be very hard to rcverfe fuch a

Decree ;

[A] Note; The Decree of the Lord Macclesfield in the Cafe of 7cj
verfus Gilbert, and which was affirmed in the Houfe of LorJs, (vide Vol.
». 13.) occafigned this Rehearing.

De Term. S. Trhtitatis, 1 724. 3

Decree ; fo that if there were any Difference to be
found betwixt this and the Cafe of Ivy verfus Gilbert^
that Difference, though but a flender one, ought to be
allowed, and the Decree to ftand. And it was much
inlifted, that in the principal Cafe there was a moft
apparent Difference ; the Money being by the Deed
appointed to be raifed and paid at a certain Time,
iyi^) the Portions for the Daughters at their Age
of Eighteen or Marriage ; and though the fubfe-
quent Words were, or as foon afterrvards as the fame
can be raifed out of the PremijjfeSy as aforefaid; yet this
niuft be ftill underftood to mean in fuch Time as might
beft anfwer the Intent of a Portion, fo as that the
Daughters might have their Money in a reafonable Time
to advance them, which could not be done by the
yearly Profits ; thefe being fo fmall, as not to be fuffi-
cient to pay the Money in twenty Years, and would
rather be an Annuity than a Portion.

Befides, the Settlement in the Cafe of Ivy verfus
Gilbert was made in i6$i ; when the Word Profits was
not taken in a Senfe fo large, as to extend to Profits
arifing by Sale : But according to the natural and ob-
vious Import of the Word, iignifying the annual Pro-
fits or Rent of the Land. And this was mentioned as
one (a) of the Reafons for the Decree in that Cafe.

Neither in the Cafe of Ivy verfus Gilbert was there
any Money put out with the Approbation of the Court,
which was to be endangered by the Determination then
made; moreover, that was allowed on all Hands to
have been an hard Cafe, and for that Reaion not to be
extended : That the Lending Money on an Ellate de-
creed to be mortgaged or fold, was not to be difcoun-
tenanced ; and though it might be objedled, that the
Words of the Truft of this 200 Years Term being, to

raifc

(«) Vol. 2. 20.

De Term. S. Trinitatis, 1724.

raife the Money by Rents and Profits, or by leafing
for three Lives at the old Rent, or by the granting of
Copyhold on Fines ; though it might be obje£led, that
the Word Frofits cannot here be extended to a Mort-
gage, becaufe the Leafing is confined to three Lives,
and at the old Rent; yet that would be no Confe-
quence, becaufe in Conveyancing it is common to make
Ufe of many unneceffary Words ; for Inftance, to
fay, that the Portion ftiall be raifed by Rents and Pro-
fits, or by Leafing, Mortgaging or Selling; and yet the
Word Selling implies all the reft. That in the Cafes of
Butler verfus Dmcomh {b\ Corket verfus Maidrvell {c\ and
Reresby verfus Nervland (d), the Father or Mother of
the Daughter were living, who, it was to be prefu-
med, would take Care of their own Child ; and in
thofe Cafes the Mortgage or Sale defired for the Raifing
of the Portions was a Mortgage or Sale of a Reverfion.
That if in Anfwer to the Length of Time fince the
Decree it fliould be alledged, that the faid Decree was
againft an Infant, to whom no Laches can be imputed,
and who, as foon as of Age, applied to be relieved againft
it; to this it might be replied, that as the Heir of the
Lady Banks was an Infant, fo was alfo the Son of Sir
George Rook^ whofe Money was lent under the Decree
of the Court, and with the Approbation of the Mafler,
upon this very Term, which my Lord Coxvper had de-
creed to be fold as aforefaid ; and it is obfervable, that
whenever an Eftate is decreed to be mortgaged or fold
for the Raifing of Money, Infants concerned therein
have not a Day given them, after their Attaining their
Age, to fhew Caufe, neither is their Infancy regarded.

Laflly, With Regard to the Rehearing of this Caufe,
the fame was faid to be a Matter not of Right, but
merely difcretionary ; The Court might either grant a

Rehearing,

(b) Vol. I. 448. Salk. 159. (0 2 Vern. 640, 6^^.

Id) Vol. 2. 93.

De Term. S. Trinitatis, 1724.

Rehearing, or refufe it ; and on this Rehearing might
open the Decree, or deny fo to do. And the Diverfity
ulually taken at this Time of Day is, between Profits
generally^ and yearly Profits, the former extending to
iignify the Land itlelf, or the Profits which it will any
Way yield.

On the other Side it was urged, that the principal
Gafe was not to be diilingulfhed from that of Ivy and
Gilbert', that the 10,000 /. was to be raifed by Rents,
liTues and Profits; or by Leafing for three Lives, or
ninety-nine Years determinable on three Lives at the
old Rent ; or by granting Copyholds on Fines ; fo that,
though it llioiild be admitted that the Word Profits^ if
left general and at large, would extend to any Profits,
as well thofe arifing by Sale or Mortgage, as fuch as
Ihould be produced annually ; yet in the prefent Cafe
there were Terms of Explanation, which reftrained ic
to fignify only annual Profits ; or elfe, why was the
Power of Leafing, or granting Copyholds, added ? Nay,
even in the Way of Leafing^ the Party was obliged to
referve the ancient Rents ; .and could he that was dif-
abled to leafe for lefs than the ancient Rent, be ima-
gined to be intrufted with a Power to fell ? That lup-
pofing the Truft were to raife the Money by Rents,
Ifliies and Profits, or by felling a Moiety of the Lands
during the 1'erm, could it be thought that, by Virtue
of the Word Profits^ the Truftees might fell one Half,
and alfo by their exprefs Power to fell, difpofe of the
other Half ; which yet, by the Confiru£lion contended
for, they might do, but that this would be monftrous
to the highelf Degree.

As to what had "been obje(9:ed, that the Decree in
the Cafe now reheard was made eighteen Years fince,
and that Money had been lent on the Term decreed to
be fold ; no Precedent could be Ihewn, where Matters

Vol. III. C happening

6 De Term. S. Trinitatis, 1724.

happening fince the Decree were ever allowed to add
to the Strength or Reafon thereof ; neither could Ar-
guments of Compaflion alter the Cafe, which muft be
governed by the exprefs Words and plain Intention of
the Truft ; though, confidering the great Portions by
which the Daughters of Mrs. Lutterell (now Lady Banks)
were provided for by her former Hulband, and alfo
what a Charge this 1 0,000 /. in Qiieftion, together with
the Intereft thereof, would bring on the Inheritance and
on the Son and Heir of the Lady Banks, it was mofl:
reaionable that her Eftate ftiould be eafed of this Bur-
then as much as poffible.

That if the Money had been to be raifed by Leafing,'
or granting Copyholds, and not otherrvije, there would
be little Qiieftion, but that the Truftees, in fuch Cafe,
could not fell or mortgage; now here thefe Words
were plainly implied, thele Affirmatives manifeftly in-
ferred a Negative; and this was the Reafon {e) of the
Decree in the Cafe of Butler verfus Dimcomh. So in

Affirmative our Lavv Books it is the general Do£l:rine, that affir-

^Jy^a NegT-' native Statutes imply a Negative [B],

tive.

Further : Where the Words and Intent of a Settle-
ment are plain, it is improper to argue from the Incon-
veniencies arifing from fuch Settlement ; for the fame
Settlement which ordered the Payment of the Portions
at Eighteen, or as foon after as the fame could be
raifed by the Means aforefaid, might have ordered the
Payment thereof at the Daughters Age of forty Years ;
the fame Settlement which fecured to the Daughters in
the principal Cafe a Portion of io,oco/v might have
given them but one thoufand Pounds; in which Cafe,
had they complained never fo much, they could not

have

(e) Vol. I. 452.

[B] See a remarkable Inftance of rfiis cited by the Reporter in his Ar-
gument in the Cafe of The Kjn^ vcrlbs Buiridge, poft.

De Term. S, Trinitatis, 1724.

have been relieved; or it might have provided thefe
Portions for fuch of the Children of the Marriage only
as were otherwife unprovided for, or as fliould be un-
provided for at the Death of the Father and Mother, as
in the Cafe of Corbet and Maidrvell ', that the Cafe of
Sir WiUoughby Hickman (f) v. Sir Stephen Anderfon, was
allowed to have been an hard Cafe upon the Daughter ;
but there the Court faid, they could no more relieve
her than they could make a new Settlement.

Lord Chancellor : The principal Cafe in fome Things
differs from that of Ivy and Gilbert, but not materially,
and in many Refpe£ls is not fo hard a Cafe as that
was. It is very obfervable, that here in the Settlement
of the Tregonrvell Eftate, the Truft of the 200 Years
Term is not faid to be for railing Portions for Daugh-
ters, but only the Sum of 1 0,000 /. It is only the
Term in Mr. Lutterelh Settlement that is for railing
'Portions for Daughters, and thereby the Portions and
Maintenance are provided ; fo that in the Cafe in
Queftion, none of the Arguments drawn from the
Neceffity of railing Daughters Portions within a rea-
fonable Time are applicable, the Money to be raifed
here being a Bounty and not a Portion*

I cannot but think it to have been a due and jull
Refolution in the Cafe of Butler v. Dimcombe, that all
Trufts of Terms directing the Methods of railing Mo-
ney, imply a Negative, {vi-x^.) That the Money ihould
be raifed by the Methods prefcribed, and not other-
wife. [C] I admit the Word Profits, if found alone,
would include a Mortgage or Sale : But here the fub-
fequent Claufe (hews, that thereby muft be intended
' annual Profits only, elfe fuch fubfequent Claufe for

raifing

(f) Trin. 17 10. Vide 2 Vern. 655.

[C] See his Lordfhip's Opinion to this Purpofe, in the Cafe of Iir/ v.
CilberJ, Vol. 2. 19.

8 De Term, S. Trinitatis, 1724.

ralfing the Money by Leafing, or granting Copyholds
would be abfurd. The natural Meaning of the Word
Profits is confined to fijch as are annual, though in this
Court on particular Occafions, and to ferve particular
Purpofes, the Senfe thereof has been extended, unlefs
where fubfequent Words were thought to abridge it ;
but ftill any one not a Lawyer would underftand it in
the reftrained Senfe. In the principal Cafe it is a
Stretch to conftrue it otherwife, by reafon of the fub-
fequent Claufe of leafing for three Liv^es at Rack Rents,
and of granting Copyholds. It might be as well in-
filled, that the Truftees might make a Leafe for four
Lives, or for Years, determinable upon the Death of
four Lives ; or that they might make a Leafe for
Years, refervlng lefs than the old Rent, as to fay, that
under this Truft they might make a Mortgage or Sale
of the Term. And the Cafe has been rightly pur, that
fuppofing the Truft were to raife the Money by Rents,
IlTues or Profits, or by Sale of a Moiety of the Pre-
mifi^es, there could be no Qiieftion but that the Word
Profits would not warrant the Truftees to fell the
other Moiety.

nr '"brfof ^° ^^^^ ^ ftiould not have made this Decree, but the
the Court fame having been made, and this being a Rehearing, as
whether or jj. j^ -^^ ^^^ Difcretion TDI of the Court whether they

no to grant ^ _ L -I _ n r

a Rehearing, will grant a Rehearing, it is equally fo whether they
The Court will do any Thing thereon. Moreover, when an In-
wiii not fant's Money has been lent under a Decree and by the
ficuity fet a- Approbation of a Mafter ; for the Court to make an-
UdeaSecu- other Decree fetting afide this Security, would be to
ulideraDe- make the Court fight againft itfelf and adl: inconfiftent-
*^-^'ed"ofT ^y ' ^^^ which renders it more proper to apply to a
the Mafler. luperior

[D] In the Cafe of Mr. Onflow, the prefent Speaker of the Houfe of
Commons, the Court, on the Circumflances of the Cafe, and the Decree
not being inrolleJ, refufed to difcharge an Order for a Rehearing, though'
at the Diftance of about 24 Years. By Lord King, the lart Seal afier
Hilary Term 1732.

De Term, S. Trinitatis, 1 724. 9

fiiperlor Court. Again, as the Court never gives any
Aid againfl. a Purchafor or Mortgagee without Notice,
this is a ftronger Cafe; for though here is Notice of.
the Settlement, here is alfo Notice that the Court has
declared and decreed that the Term thereby raifed, and
the Trufts declared concerning the fame, impower the
Truftees to fell the Premiffes for raifing the Money for
the Daughter of Mrs. Ltitterelh, and a Power to fell,
implies a Power to mortgage, which is a conditional
Sale.

Wherefore, if the Defendant Banks y the Heir at
Law of Mrs. Lutterell, (afterwards Lady Banks) would
have the Opinion of this Court in the Cafe, and is for
fetting afide thefe Securities on which the Money of
Sir George Rooke, now belonging to his Infant Son, is
placed ; it feems necefTary for him to bring an original
Bill. However, I will referve Liberty for Mr. Banks
to apply to the Court, that fo he may have Time to
adviie with his Counfel what Method it may be proper
for him to purfue in this Cafe, which is indeed a very
extraordinary one. [E]

Dunn verfus Green, ^^^^ ^-

Lord Chan-

Copyholder m Tail accepted a Grant from thecicsfidd.

Lord of the Manor, of the Freehold and Fee- ^. is a Co-
fimple to him and his Heirs, and died indebted hy^^fXc''
Bond wherein the Heirs were bound ; and on a Bill Lord grams
brought by the Bond Creditor for Satisfadion out ofonh^'ct^-
the AlTets left by the Obligor, the Qiieftion was, *^oi^ t° ''•'"
whether the Premiffes were Affets by Defcent, and G.pyL'u ^
liable to the Bond ? t'^o^gh in-

tailcd, is ex-

[E] It appears from the Regijier's Book, that on the nth of June
J 72 5, there was a Petition to have back the Depofit, the Parties having
amicably ended the Matter.

Vol. in. D The

lo De Term. S. Trinitatis, 1 724.

The Lord Chancellor, after Time taken to confider
of it, thus delivered his Opinion.

Unlefs it be expreily found that the Cuftom of the
Manor allows of Intails, then this is a Fee conditional,
and plainly merged by the Grant of the Freehold in
Fee : But fuppofing the Cuftom of the Manor does
warrant Intails, yet the Copyhold is extinguifhed ; be-
caufe in the Eye of the Law, that is but an Eftate at
"Will, and mull be merged by the Grant of the Free-
hold. The PremilTes by fuch Grant are fevered from
the Manor, confequently the Cuftom of the Manor
cannot corroborate the legal Eftate at Will. The Co-
pyholder cannot hold of himfelf, and the Copyhold,
though intailed, is (wallowed up in the greater Eftate
of the Freehold ; and as the Tenant, after fuch Time
as he took the Grant, did not himlelf continue a Co-
pyholder, fo his Son, on the Defcent of the Freehold,
is likewife no Copyholder, which may be faid from
Son to Son ad infinitum. Moreover, if the Intail of the
Copyhold be not extinguiftied, it will be a Perpetuity^
fince the only proper way of barring the Intail of a
Copyhold, is by Recovery in the Lord's Court ; but
after fuch Severance as in the prefent Cafe, no Reco-
very can be fuffered in the Lord's Court. [F]

One binds Another Point in this Cafe was, that the Obligor in
hSrHeirrby t^c Bond (the Satisfa£lion whereof was fought by this

SI Bond, and

mortgages fome Lands of which he is feifed in Fee for more than the Value ; his Heir has

200/. ioT joining in a Sale of the Premifles ; this 200/. held not to be AiTets.

[F] See 2 Chan. Rep. 174. & i Vern. 393, 45S. Parker v. Turner^
where the Lord Chancellor jefferys delivered the like Opinion in the like
Cafe, ^.ere autem. If A. be a Copyholder in Tail, Remainder to B.
in Fee, and A. takes a Grant of the Freehold from the Lord to him and
his Heirs, and dies without lifue •, is not B. in whom there was once
a vefted Remainder in Fee of the Copyhold Premifles, intilled to the
famep

Suit)

De Term. S. Trinitatis, 172^4- H

Suit) had in his Life-time made a Mortgage of fome
Lands of which he was feifed in Fee, for more than
the Value ; and the Mortgagee offering the Lands in
Sale, the Purchafor would not proceed, unlefs the Heir
of the Mortgagor (who was alio Heir of the Obligor)
would join in the Conveyance, and the Heir had
200 /. of the Mortgage Money for joining ; where-
upon the Queftion was, whether this 200 /. was Af-
fets?

Lord Chancellor : This is not Affets, having been paid
to buy off the Obftinacy of the Heir, and not for the
Value of his Equity, which was worth nothing.

Adams verfus Peirce. cafe^.

Lord Chan*

/^NE Adams, poiTefled of fome Leafehold and "lesfieid.^
^^ other Perfonal Eftate, had a Son and two Daugh-
ters ; and by his Will gave to the Value of about
2000 /. a-plece to his two Daughters, and devifed fe-
veral Leafehold Eftates to his Son, and if his Son ftiould
die within Age, then the Premiffes devifed to his Son,
to go to his Daughters. The Relidue of his Eftate the
Teftator bequeathed to his Daughters, and made his
Brother the Plaintiff Executor.

The eldeft Daughter married the Defendant Do£lor
Pierce, who before Marriage fettled a Ground Rent of
99 /. per Ann. on his intended Wife and her lifue in
ftri6l Settlement, and alfo fettled 1 000 /. Part of the
Wife's Portion.

The fecond Daughter married a Freeman oi London,

and before the Marriage the Executor, with the Con-

fent of the intended Husband, affigned over good Part

I of

12 De Term. S. Trinitatis, 1724.

of the Portion to Truftees for her feparate Ufe, and to
be at her feparate Difpolal.

Both the Daughters and alfo the Son were Infants,
and the Son having by Affent of the Executor entered
on the Leafehold Premifles, died during his Infancy,
whereby a confiderable Perfonal Eftate (to the Amount
of about ^oocl.) came to the two Daughters.

The Plaintiff the Executor in Truft brought this
Bill to pafs his own Accounts ; and that the two Huf-
bands, in Confideration of the Increafe of their Wives
Portions, might make additional Settlements; efpecially
the Citizen, who out of his own Eftate had made no
Settlement before.

Lord Chancellor : The Executor is here Plaintiff, and
not the Husbands; if the latter had afked any Aid in
Equity, the Court would have refufed granting it but
on fuch Terms as lliould appear reafonable.

Where a But the Executor having affented to the Legacy of
Term for ^^^ Leafchold Eftatcs to the Son, this is an Alfent

Years is dc~

vifed to J. likewife to the Devife (g) over to the Daughters, who
SlindS^r^^^^ thereby gain'd a legal Intereft in fuch Leafehold
B. and the Eflatcs, which I cannot take from them, nor develt them
Intst tht of what is already vefted in them by Ad of Law.

Devife to J.

this is a good Aflent to the Devife ov*.

If Money be Indeed, with Regard to fuch Part of the Eftate as
inflm '° ^ confilb in Money, the Executor being but a Truftee
Daughter thereof for the Wives, the Court can chufe whether
Wes! X* they will let the Hufbands have the Money without ma-

Court may

refufe helping the Hultand to t])e Money, unlefs he makes a fuitable Settlement.

(g) See the Office of Executors, Odtavo Edition, p. 234.

De Term. S, Trinitatis, l*]i6. 13

king a fuitable Settlement upon their Wives ; but the
Defendant Do£lor 'Pierce having made a Settlement be-
fore Marriage, and being a Perfon eminent in his Pro-
feflion as a Clergyman, and pofTefled of great Prefer-
ments in the Church, let him take the Money due to
his Wife.

Alfo as to the other Hufband ; he being a Linen- '^^^[^ '^ ^^^
Draper in Cornhill, a Man of great Dealings, and in a fmlii^"and
thriving Way ; the Provifion which his Wife will be in- the Hufband
titled to by the Cuftom of London is a good Provifion; of i:<jWw,
and the Money coming to the Hufbands, exclufive 0^'!%^"^^°'"

r 1 1 J T^n 1 1 n 1 • 1 London is

the Leaiehold Eitates already veiled in them by the a fuitable
Executor's having aflented to the Legacy, being but in- ^''°^''^'°"-
confiderable, it is not worth while to fettle that. There-
fore let the Executor account with the Hufbands, and
have his Cofts to this Time, referving all fubfequenc
Cofts.

Eyres, Cafe. Trin. I^i6. ^^^^i-

Lord Chan-

JDY Marriage Articles Money was laid out on Securi-"'''"^^'"^''
-*-^ ties, and agreed to be inverted in Land, and fettled ^'^°"^>; " ^

LTfH irxTn -I 1 -r articled to be

on the Hulband tor Lire, Remainder to the Wife for invefted in *
Life, Remainder to the firft, t^c. Son of the I^larriage ^nTtolSVet-
in Tail Male, Remainder to the riehc Heirs of the tied on ^.i
Hufband. The Hufband and Wife died, leaving only l^t^"',^

one Son, who being come of Age petitioned the Lord ^- '" f^e.
Chancellor, that in Regard if the Lands were purchafed, ihJvrZ'
he would, as the only Iflue, be intitlcd to the purcha-'"°''^'^"^'=^"
fed PremifTes in Tail, Remainder to himfelf in Fee as Fi'nJoniy''
Heir to his Father : and fince a Fine only would ena- ^'^^"/"""/i''"

111' i-rrri tp •• Lands it fer-

ble nim to dilpole 01 the Premilles, which Fine might tied; jxtthe
be levied as well in Vacation as in Term : For thefe .^""^'.^rr'tL
Reafons the Petitioner applied for an Order, that the Money to bs

paid to A. a
fortiori they would notj if there were either Wife or Ifliie, but fee the Note on the other Siii*.

Vol. III. E Money .

14 De Term. S. Trinitatis, 1726.

Money (hould be pa^d to him, agreeably to what had
been done by the Lord 'Parker in the Cafe of {jo) Short
verlus Woody and in many others of the hke Nature ;
for that it would be a vain Thing for the Court to
enforce the Making of a Settlement, which, as foon as
made, might immediately be defeated. Otherwife, had
there been a Remainder to a third Perfon, as in fuch
Cafe the Settlement could not be defeated without a
Recovery, and the fame not being to be fuffered but
in Term, (before which the Tenant in Tail might die)
therefore the Court has been tender of taking away fuch
Chance from the Remainder Man.

Lord Chancellor : I cannot fee why I fhould not have
the like Regard for the IfTue in Tail, as for the Re-
mainder Man j it is poffible the Son (the Petitioner) in
this Cafe, before he can light on a Purchale, and fettle it,
may die, leaving IfTue ; and this is a Chance of which
I would not deprive fuch IfTue. Alfo here may be a
Wife whom I may hinder of her Dower. And though
Mr. Solicitor General Talhot prefTed this Matter with
fome Earneftneis, for the Petitioner, the Lord Chancel-
lor declared he could not do it, until he fhould be
better fatisiied from Prececedents [Cj.

. (h) Vol. I. 471.

[G] Afterwards, in the Cafe of Mr. Onflow (cited in that of Mills
verfus Banks ant' 8.) the Lord Khig declared his Perfeverance in Opinion
as to this Point, obferving, that the 1-evying of a Fine is a Thing of
Time, there being feveral Offices ,to pafs ; and the Writ of Covenant
is to be under the Great Seal. All which Impediments not being to be
removed in an Inftant, the Tenant in Tail may by them be prevented
from perfefting a Fine, though never fo much intended by him. But
yet after ail, the prefent Pradice conforms to the Lord Parker''^ Opi-
nion: Nay, if a Feme Covert is interefted in the Money articled to be
laid out in Land and fettled, her Coming into Court, and confenting,
will be fufficient to difpofe of fuch her Intereft. As to the Objedion
made by the Lord King in the principal Cafe, that by this Means a
Wife might be hindered of her Dower ; if the Party applying for the
Money were married, it would, without Doubr, be expefted that his
Wife (hould appear in Court, and give her Confent thereto.

I . D E

i<;

D E

Term. S. Michaelis^ *

1727.

Cafe 5.

Lord Chan-
cellor King.

Dame Sufamtab hemn, a\

Lunatic k, Widow ^f ^^^Ipi^; *.*ff
William hemn deceased, i '

by her Committeey J

George Lewiuy Efq', Defendant.

SI R William Lemn, a Freeman of London, left a a Freeman
Wife fa Lunatickl and no lifue, and left his Gou- ?^,^"t^

-. T • I • T-. n^i n- before Mar-

lin, George Len>in, his Executor. The Qiieltion was, riage fettles
whether in Cafe a Freeman before Marriage makes a f^l^pl^fZ°i
Settlement of Part of his Perfonal Eftate upon his in- Eftate upon
tended Wife, this bars her of her cuftomary Part ? And wife" w"take
at the Hearing, the late Lords CommiQioners fent it to Effca after
the Lord Mayor and Aldermen to certify what the without' '
Cuftom of London was in this Cafe. On the 2 9th mentioning
oi March, i-]i6, the Court of Lord Mayor and Alder- Bar of her
men having heard Counfel on both Sides, certified, that p"f°.'"J7s
they did not find there was any Cuftom of the faid will bar her
City, by which a Woman, who before her Marriage tJ^^^^^;,,

with

l6 De Term. S. Michael! s, 1 727.

with a Freeman thereof accepts of a Settlement upon
her of Part of her Hufband's Perfonal Eftate, to take
EfFe£l: after her Huftand's Death in Cafe (he fhall fur-
vive him, (without taking Notice of the Cuilom of
London) is or is not barred of a cuftomary Part of his
. Perfonal Eftate ; and therefore they fubmitted the fame
to the Determination of the Court.

The Queftion fent to the Court of Aldermen to be de-
termined being thus returned to the Court of Chancery,
the Lord Chancellor King ordered the Return to be
quaftied for Uncertainty ; and that the Lord Mayor and
Aldermen ftiould certify a dire£lAnf\ver to the Qiieftion,
Affirmative or Negative. On the 1 1 th of April laft the
Court of Lord Mayor and Aldermen certified, that:
having infpe£led fome further Precedents, which they
were not apprized of before, they did find, that if a
Woman before her Marriage with a Freeman of London
accepts of a Settlement upon her, to take Efl[e£l after
her Hufband's Death in Cafe fhe furvives him, of Part:
of his Perfonal Eftate, (without taking Notice of the
Cuftom of London) ftie is thereby barred of her cufto-
mary Part of his Perfonal Eftate.

And now it was obje£led, that this Return ought not
It IS fuffici- fo be received, becaufe not figned by the Recorder ; and
Cuftom of that it was reafonable, where Properties of fo great
Londmhc Valuc, as thofe which the Citizens of London poflefs,

certified by i • i i i •

the Recorder are to be determined, that the Returns mould be with
7r^Tem^! ^^^ "^°^ precifc and exa£l Certainty. Now one might
be prevailed on to fay by Parol^ what the fame Perlon
would not venture to give under his Hand.

To which it was anfwered, that in the Precedents in
Raflal 143. and in Cro, Car. ^6i. The King verius Bag'
JJjawy both which are Certificates of the Mayor and

Aldermen,

De Term. S. MichacHs, 1717- ^7

Aldermen, the [a] Recorder inakes this Return ore te-
titiSf i^ non diter-j and fo likewiie is the Opinion in 5"^/^.
192. the Mayor of Thetforcts Cafe, where Holt Ch. J.
fays, that at Common Law no Officer was bound to
jfign a Return ; and the Statute of {a) Turk obliges a
Sheriff to do it, but docs not extend to Mayors, Coroners
or other Officers.

Lord Chancellor : The Recorder is not bound to fign
this Return, but did formerly come to the Bar in Perfon^
and pronounce it ore tenus, and the Mayor or Recorder
is not within the Statute of T^ork; fo that the Return is
well enough. The Reafon of the Curtom in the pre-
fent Cafe feems to be, for that the Wife does not here
truft to the Cuftom of the City of London for her Pro-
viiion. Whereupon the Lord Chancellor declared, that
the Wife was in this Cafe barred of her cuftomary Part*

The Precedents produced on this Occafion (and the
firit a very remarkable one in Refpe£l of its Confe*
quences) were as follow.:

Lib. de antiquis Lcgibus, 30 H. 3. Anno 1246, De
Dotibus Mulierum London'. Eodem Anno Die Luna:
prox' prius Hokeday [B] adjiidicat' fiiit in Guildhall, quod
MuUcr certa iff fpec/ficata dote dotdta, non potefi nee debet
iimplius habere de CatalUs Viri fui defunct, quam certarn
iff jpecificat' dotem fibi afjlgnat nifi de voluntate Viri fui.
Hoc autem contingebat per Margaretam Relidlam ]o*

V'oL. IIL F hannis

{a) 2 Ed. 2. cap. 5.

[A] Buc note 5 If the Certificate be falfe, an Adion lies againfl: the
M.iyor unci Aldermen, and not againfl: the Recorder; for it is their Cer-
tificate by the Recorder. Hob. 87. Day verfus Savage.
■ IB] T\-\s firft: of Atguft: Hokethle, Hocday or Iio5iide (ccedes) Diem
obfcrvatum tradunt in mcmoriam omnium Danorum ea die clanculo &
limui, in Anglia ubi turn dominabantiif, i\ Mulieribiis fere occiforum,
"Vide Spelmanh GioIIary Verbo Hocday., & Jtmii Etymologirum Angli-
'anuiii.

1 8 De Term. S, Michaelis, 1727.

hannls Vyel fenloris, qua? petebat in Huftings London*
terciam partem Catallorum di6li Viri fui per multimoda
Brevia Domini Regis.

Will' Vyel & Nich' Batt Vic'. Eodem Anno die Lunsc
prius ad vincula Santli Petri, acceffit Henricus de Baye
Julticiarius Domino Rege emifllis, apiiJ Sanftum Mar-
tin' Magnum, ad audiend' Recordum quod dat' fuit per
Querimoniam Margaretie Vyel, die Luna: prius Hoke-
day anno precedenti, ficut in hoc Rotulo prenotatur.
De quo Judicio di£la Margareta conquefta fuit Domino
Regi, & invenerat plegios ad proband' illud elTe falium
unde Qiier'. Ibidem coram Majore & Civibus perle£lo
illo Recordo, ac univerlis Brevibus Domini Regis, qux
di61:a Margareta impetiverat, leftis Sz auditis, dixit JulK-
ciurius: " Ego non dico quod Judicium iiUid fit falium,
" fed debilis eft procefllis ill', cum nulla fit mentio in
" Recordo ifto de Summonitione Adverfariorum di6l:jB
MargaretJE, & cum Johannes Vyel Vir illius fecit te-
ftamentum, non pertinebat ad veftram Curiam, tale
placitum terminare." Gives reiponderunt, non fuic
neceil'e ad illos fummonend' qui bona defun<3:i habue-
rint, cum ipfi femper prompti fuer' ofl'erent' fe ftare
ad re6lum di6tx Margaretx in Curia noftra, & tandem
potuimus illud placitum terminare per aftenfum di£lar'
partium nihil calumniantium, & petentium fore eccle-
(iafticum, &: ficut Dominus Rex nobis per Breve fuum
illud terminare precepit. Tandem, multis Altercationi-
bus inter Jufticiar' bc Gives fa6lis, dixit Jufticiarius,
quod oftenderet ilia omnia Domino Regi & Concilio
fuo, & fie recefierunt. Poftea, ac folummodo de caiija
ilia [C], cepit Dominus Rex Civitatem in manu fua,
& commifii eam per Breve fuum Will'o de Haverille
& Edr'o de Weftm' ad cuftodiend' falv' in Vigil' Sci*

Bartho-

[C] In the Margin of this Entry there is a Note, obferving it to
have been ufual for this unhappy Prince to feize the Liberties of the
City into his Hands. 2

De Term. S. Michaelis, 1727.

Bartholomxi ; unde Major & Gives accefierunt ad Re-
gem apud Woodftock, oilendentes ei quod nihil deli-
queranr, &: non potuerunt gratiam ejus impetrare.
Qiiare, in adventu eorum apud London, predidUis WiJl'us
de Haverille cepit Sacram' de Cleric' & de univerfis fer-
vientibus qui pertinebant ad Vicecomites, ut client at-
tendent' ei, Majore & Vicecom' Balliva fua fie amotis.
Poftea, in die Dominica ante feftum San£lx- Maria; rece-
perunt Major &: Vicecom' in manibus fuis per licentiam
Regis, Sc dies datus eft ad refpondend' de predi6loJu-
dicio coram Rege & Baronibus fuis in craftino Tranlla-
tionis Sci' Edr'i apud Weftm'.

%th 05i. 1688. Robert Handcock, a Freeman of Lon-^
don, died, and an Inventory was exhibited of his Eftate,
one Moiety whereof, which otherwife would have be-
longed to his Widow, was by the Cuftom to be divided
amongft his four unadvanced Children; for that the
Teftator did covenant before Marriage to leave his Wife
1000/. which is made a Debt in the Inventory, and
allowed out of his whole Eftate.

<^th April, 17^9* -^^ Inventory was taken of the
Eftate of Thomas Cook, a Freeman of London, and a Moi-
ety of the faid Eftate divided amongft the Children ; for
that the Widow was provided for by Articles of Agree-
ment before Marriage.

2 \l[l Nov. 1 7 2 1 . An Inventory was taken of the
Eftate of John Slaney, and the Widow's Part thereof
was by the Cuftom divided amongft the Orphans, the
Widow being provided for by the Settlement [D].

Cnife

[D] It is to be obferved, that Quellions touching the Cuftom of
Z,(jWo«, will, for the future, happen lefs frequently than heretofore; it be-
ing enafted by 11 Ceo. i. cap. 18. " That it (hall be lawful for all Per-
" fons who, after the firft of June 1725, fliall become free of the City
" of London, and for all who at that Time fhall be unmarried, and noc

" have

Frtom the
Common
Scijcam's
Office.

20 De Term. S. Michaelis, 1727.

Cafe 6. Crufc &' at verfus Barley oj Banfon,

Kir Jofeph

Jekyll, Ma- ^ ^ m

jhr of the Ll/Illiam Banfon, feifed in Fee of fome Freehold and
alfo of fome Copyhold Lands, which he had fur-
Sons A. am" rendered to the Ufe of his Will, and being very much
B. and three indebted by Mortgages, Bonds and fimple Contrail:,
and "devife's ^^d having 3 Wife and five Children, (v/^. Chriflophery
hzMd'i T ^^^^^' E//':^^/'^//;, Mary and Cecil; by Will dated the
his Debts; 17th of January 1724, devifed all his Freehold and
and as to the (j^pyj^Qjj^ Lands to the Defendant Barley and his Heirs,

Monies an- • ^ ■' fy r. - - ^y

fing by Sale m Truft to fell the lame for the belt: Price he could
p!iid'h?gn'esS^^ and in the firft Place to pay off all Incumbrances
200 /. there- upon the Premiflcs, and alfo all his iuft Debts. He
cideftSonV. devifed alfo his Perfonal Eftate to the fame Truftee, in
ottivo.ty- Truit to fell to the beft Advantage, and after the
fidue to his Teftator's Debts paid, to apply the Money arifing by
Chi'iren"?' ^^^^ °^ ^^^^ Perfonal Eftate, and alfo the Money to be
quaiiy. J. produccd by Sale of the Real Eftate, amongft his five
d'iesldbre children, in Manner therein after mentioned, (f/^O
twenty-one, To the Teftatot's eldeft Son Chrijlopber Banfon, 200/.
ftai}^ep°tt which the Teftator gave him at his Age of trventy-one ;
the Heir of all the Reft and Relidue thereof to and amongft his
t ator. £^^^^ younger Children £?-/>/;, Eli^abethy Mary and Cecil,
Share and Share alike, at their refpe£live Ages of
twenty-one, or Days of Marriage, which ftiould fiift
happen ; and if any of his four younger Children
ftlould die before fuch Age, or Marriage, his or her
Share to go to the Survivors. The Teftator gave all
exprefs Legacy to the faid Defendant Barley^ whom he

alfo

" have iniie by any former Marriage, to difpofe of their Perfonal
" Eftate." Sea. 17.

" But if any Pcrfon who fliall be free of the City, hath agreed or
" fliall agree by Writing, in Confideration of Marriage or otherwile,
" that his Perfonal Eftate fl-,all be diftributed according to the Cuftom
" of the City ; or in Cafe any Perfoa fo free ftiail die Inceftaie, hjs Per-
" fonal Eftate (liall be fubjec't to the Ciiftom. SeCl. iS.

De Term. S. Micbirelix, 1717. 21

alfo left fole Executor, and died. Barley the Executor
renounced, and the Widow of the Teitator took out
Adminirtration with the Will annexed. Chriflopber Ban'
fon died under twenty-one, without having been ever
married. I'he Debts of the Teftator were very con-
fiderable, and the Eftate fmall ; and the Bill was
brought by the Creditors againft Cecil, the only fur-
viving Son and Heir at Law of the Teftator, to prove
the Will in Equity, arid to have a Decree for Sale of
the Eftate.

Hereupon the only Queftion was, what fliould be-
come of the 2Co/. given by the Will to Chriflopber at
his Age of twenty-one ? It was admitted on all Sides,
and alfo by the Court, that this 200 /. did never veft
in Cbriftopher, it being by the Will given to him at his
Age of twenty-one, and not (b) payable at his Age of
twenty-one ; fo that the Age was annexed to the Gifty
and not to the Time of Payment ; confequently it was
not an Intereft tranfmiffible to the Executor or Admi-
niftrator of the faid Chriflopber.

But then the Mafler of the Rolls inclined to think,
that it would not go to the younger Children ; becaufe
only the Refidue of the Money ariiing by Sale is given
to them, which feemed to have excluded the 200 /.
Legacy, fo that his prefent Opinion was, that this
200 /. belonged to the Heir.

Againft which it was obje£led, Firfl, That by this
Will all was made Perfonal Eftate, and no Real Eftate
left to defcend ; and therefore in the bequeathing Pare
it is faid, that as to the Money to be produced by the
Sale, i^c. the Teftator difpofes thereof in Manner
therein after mentioned, {viiii^ 200/. to his eldeft Son

Vol. in. G Chriflopber

{b) Vide 2 Venf. 342. Cloberf?, Cafe. Swinb. 31 1, 314. Off. Exec,
cap. 19, p. 347. I Lev. 277. Dyer 598. Salk. 415.

22 De Term. S. Michaelis, 1 727.

Chriflopher at his Age of twenty-one. It is true, where
an Hftate is devifed to be fold to pay Debts, if there
be a Surplus, it Ihall go to the Teftator's Heir at Law;
foraimuch as when the Debts are paid, the Truft is
larisfied, and the iMotive of the Teilator for Sale of the
Eltate, at an End ; and the Heir, if he pleafes, on lay-
ing down the Money for the Debts, may take the E-
diare himfelf : So that in all thofe Cafes there is a re-
fulcing Truft for the Heir. But in the principal Cafe
the Surplus of the Money arifing by Sale of the Lands,
and alio of the Perfonal Eftate, is by exprefs Words
given to the younger Children, who in this Refpe£t
are the H^redes fa^i ; and the 200/. fliall rather fall
into the Rejiduiim, and belong to all the younger
Children as Keredes fafii, than to the only furviving
Son. Secondly, For that if Chriflopher the eldeft Son
and Legatee of this 2 CO /. had died in the Life of the
Tcftator, there could have been no Doubt but that this
had been a lapi'ed Legacy, and would have fallen into
the Refiduum ; now in the prefent Caie, in Regard
Chriflopher the Legatee died before his Age of twenty-
one, and contequently before the Legacy ever veiled
in him, it was as if it had been a lapl'ed Legacy, and
within the fame Reafon. Thirdly, Becaufe if this 200/.
fliould belong and defcend to the Heir, it would, in
Caie he ihould die before the Receipt of the Money,
defcend to his Heir, which would give the Money a
defcendible Qiiality like Land.

The Mafler of the Rolls ordered Precedents to be
looked into, faying, he would confider of it ; and at
length declared his Opinion, that the 200/. fhould be
conftrued as Land, and defcend to the Heir ; for that
it was the fame as if fo much Land as was of the
Value of 200/. was not dircdled to be fold, but fuf-
fered to delcend. Wherefore the Reoifter Was direded
to enter the Decree accordingly. [Ej

[E] See the Cafe of Emblyu v. Freeman, Precedents in Chancer)' /J41,

I D K

2-3

D E

Term. S. Hillarii^

1729.

Horfeys Cafe. ^'^^-

Lord ChaH'-
cellar King*

4 And B. joint Partners in Trade, became Bank- Qn a joint
• rupts, and the joint Creditors took out a Com- Commiflion
miffion of Bankruptcy againft them, and the feparate fvtners
(Creditors of A. and B. took out feparate Commillions Bankrupts,
iigainft them refpeftively. And now the feparate creditors.
Creditors, though they had lued out feparate Com- ^'^°"S^ ^'^y

^ ' o y r have taken

millions, yet petitioned the Lord Chancellor to be out feparate
admitted upon the joint CommilTion to come in as ^^^'^"'^aii
Creditors to prove their Debts j infilling, that unlefsyet U at
they fhould prove their Debts on the joint Commillion, ^^^"{j,7o
they could not oppofe the Allowing this Certificate ; oppofe the
and yet if A. and B. the Bankrupts lliould have their the'cex^-"
Certificates allowed, though on fuch joint Commif-^te.
lion, this would difcharge all their Debts, as well fepa-
rate as joint ; and that it would be a mofl: unreafonable
Thing for Creditors to be bound by that Certificate
which they had no Opportunity of oppoling : Whereas,
though they lliould be fuffered to come in as Creditors

24 De Term S. Hillarii, 1729.

to prove their Debts, in order to oppofe the Allowance
of the Certificate ; it might ftill be another Qiieftion,
how far they fhould be intitled to a Satisfaction on the
joint Commiflion : And they cited the Cafe of one
Stevens, (^) where a Petition of this Kind was granted.

On the other Side the principal Cafe was faid to
differ from that of Scevens ; becaufe here the feparate
Creditors had taken out feparate Commiflions, which
had not been done in the Cafe cited, and by their
taking out fuch Commiiiions, had ele£led to have their
Satisfiftion out of the feparate Eftate and EfFe6ls of
each Bankrupt; and though it were fo that the Perfons
of the Bankrupts ihould be difcharged by the Allow-
ance of their Certificate on the joint Commiffion, (as
it was moft reafonable they fhould, when they had
given up all they had in the World) yet their EfFefls
would not be difcharged thereby, but the legal Pro-
perty thereof would be vefted and continue vefted in
the Aflignees.

Partners are Lord Chancellor : It feems that the feparate Debts will
Bankrupts, (^g (A) difchargcd by the Allowance of the Certificate
Commiffion on the joiut Commiflion ', and if fo, what Remedy

is taken out

againft them, if they obtain an Allowance of their Certificate; this will bar as well their

feparate as their joint Creditors.

(<z) Heard 7rt;7«<5ry 25. 1728.

[A] So on the other Hand, if there be two Partners, and one of
them becomes a Bankrupt, and on a feparate Commiirion being fued
out againft him, his Certificate is allowed •, this does not only difcharge
the Bankrupt of what he owed feparately, but alfo of what he owed joinl-
/v, afid on the Partnerfhip Account : Becaufe by the Act of Parliament, the
Bankrupt, upon making a full Difcovery and obtaining his Certificate, is
to be difcharged of all bis Debts. Now the Debts he owes jointly with
another, are equally his Debts as what he owes on his feparate Account,
confequently he is to be difcharged of boch his joint and feparate Debts.
And fo it has been determined by the Judges of B. R. By the Lord
Chancellor Parker, ex parte 2'eky 3 July 172 1.

2 can

De Term. S. Hi liar it, 172.9. 29

can there then be for them ? It is plain that the joint
Effefts of A. and B. Partners, are hable to the Debts or
Bankruptcy of one of the Partners, as to a Moiety of
thefe Effe6ls : As if A. and B. are Jointenants of a
Term for Years, and J. S. has a Judgment againft A.
only, yet a Moiety of the Term may be taken in
Execution on fuch Judgment. But I am not as yet
refolved what to do in the principal Cafe, which muft
be adjourned over, in order to fee Precedents and
what Dire£lions have been given in like Cafes. After O" ^ joint
which his Lordlhip (b) ordered, that the feparate the jd'nt°"*
Creditors fliould be at Liberty to oppofe the Allowance Creditors are
of the Certificate ; and with Regard to their Satif- in on the
faction, that the Partnerfhip Creditors fliould be pre- gSl^aSd
ferred out of the Partnerfliip Stock before the feparate if there re-
Creditors ; but that, if after all the Partnerfliip Cre- ^^^^^'j,^;''-
ditors were paid, there fliould be a Surplus, then the the feparate
feparate Creditors to come in for a Satisfa£lion there- io^\^°ll^^^
out, {vi^) The Creditors of each out of a Moiety of m'tted.
fuch Surplus, (f)

(b) 22 April 1729,

(0 Vide poll ex parte Rowlandfon.

Vol. Ill H Henry

z6 Hillary Vacation, 1 729.

Cafe 8. Henry Davis verfus Henry Gihhs, Ad-
mini flrator of Elizabeth Gibbs.

In Domo Procerum, HilLiry Vacation^ ^7^9-

bnefeifed '"T^HE I^zdy Borc man, being feifed In Fee of Lands
Feeing. M. ^^ Kent, and polTefled of a Mortgage for Years
and poffeiTed ^jp f|^g Manor of Cmnbroke in U([ex, and of an extended

of a 1 erm tor r i r

Years in B. Interelt upon a Statute, oi the Manor ot Boiv Brickhill
U^l'^Tc^ m Bucks, by her Will dated the 2 oih of AUrch 1699,
nements and in a foriTier Claufc thereof, devifed all her Manors,
in" . and 5. MefTuages, Lands, Tenements, Hereditaments and real
to J. s. and Eftate whatfoever in Kent, Ejfex, Bucks, BedfordJJnre, or
this will not elfewhere within the Kingdom of England, of which fhe
^fs the ^yas any way feifed or intitled to, unto her Nephew
ciaiiyi'f there Henry DavIs (the Appellant) and to her Niece Elizabeth
be another (-^^^ ^yjfg ^f ^^^ Refpoudent GMs) for their Lives

Claufeinthe^ i i i-i i r i • r

Will, which equally, Share and Share alike ; and after their Deceale,
Seil l^l^en the Teftatrix devifed her faid real Eftate to the
Eftate. right Heirs of her faid Nephew Henry Davis (the Ap-
pellant) and of her faid Niece Elizabeth Gibbs equally
in equal Parts, to hold to them and their Heirs, as Te-
nants in Common.

Afterwards, by a latter Claufe, the Teftatrix, after
leveral Legacies, gave all the Reft, Refidue and Re-
mainder of her Perfonal Eftate, Plate, Gold, ilfc. and
all her Mortgages, Bonds, Specialties and Credits, whatfo-
ever they ftiould confift of, after her Debts and Lega-
cies paid, unto her laid Nephew Henry Davis and her
faid Niece Elin^abeth Gibbs, equally to be divided be-
tween them J and made her Nephew and Niece Execu-
tors, and died. Elizabeth Gibbs died without lifue, and
2 her

Hillary Vacation, 17Z9. 27

her Hufband the Refpondent Eenry G'lhhs was her Ad-
min iftrator, and her Brother the faid Uenry Davis her
Heir at Law. The Teftatrix the Lady Boreman was
feifed in Fee of Lands in Kent, but had only a Chattel
Intereft in Cranbroke in EJfeXy and in Bow Brickhill in
Bucks.

The Qiieftion was, whether by this Devife Bemy
Davis, as Brother and Heir of his Sifter Elizabeth Gibbs,
was intitled td the faid Elizabeth's Moiety of the Chat-
tel Interefts in the Lands in Ejfex and Bucks, by Way
of Executory Devife (as fuppofed to be devifed to the
faid Elizabeth Gibbs for her Life, Remainder to her
Heirs;) or whether the faid Moiety, after the Death
of the faid Elizabeth, ftiould go to her Hulband as her
Adminiftrator? And it was decreed (a) by the Lord
Chancellor King, that the fame belonged to the Re-
fpondent the Hufband, as Adminiftrator to his Wife,
and not to her Brother the Appellant, as her Heir at
Law.

On this Appeal the firft Queftion that was made
was, whether thefe Chattel Interefts were included in
the former deviling Claufe of the Will ?

And it was obje£led, that they pafTed by the Devife
of all the Manors, Lands, Hereditaments and real
EUate, which the Teftatrix was any way feifed of or
intitled to, in Kent, Effex and Bedford/hire ; for that a
Term for Years is a Chattel Real and an Eftate, and
may pafs in a Will as a real Eftate. Befides, a Will
does not require technical or particular Terms, being
fuppofed to be made when the Teftator is in extremis,
isf inops concilii; and therefore, though the Words are
never fo improper, yet if the Party's Meaning can
from thence be pick'd out, it will be fufficicnt ; and

fuch

(d) 7 Feb. 1729.

28 Hi liar J Vacation, 1 729.

fuch Meaning and Intent will take Place, however in-
accurately exprefled.

That this Cafe was ftlll the Wronger, in that the
Teftatrlx had given all her Manors, Lands and Heredi-
taments in Kent, Ejfex and Bucks ; and (he had no Fee-
fimple Lands in Ejfex and Bucks, nor any other Lands
therein, but thefe Chattel Interefts; and therefore, as
where one who has no Lands in Fee, but is pofleflfed of
a Term for Years, devifes all his Lands to A. and his
Heirs, the Term for Years ihall pafs (e): So in the
prefent Cafe, the Teftatrix having no Lands in Effex
and Bucks, but only thefe Terms for Years, or Chattel
Interefts, the fame fhould pafs ; and the rather, becaufe
the Fee-fimple Lands in Kent would not fatisfy the De-
vife of the Lands in Ejfex and Bucks ; fo that it was
the fame as if the Devites had been feveral, (vi^.) As
if the Teftatrix had devifed all her Lands in Kent to
her Nephew and Niece for their Lives equally. Re-
mainder to their Heirs. Item, She devifed all her Lands
in Ejfex and Bucks to her faid Nephew and Niece for
their Litres equally, and after their Deaths, to their fe-
veral Heirs.

On the other Side it was faid, that thefe two feve-
ral Claufes in the Will comprifed the feveral Eftates of
the Teftatrix ; one the Real, and the other the Perfonal
Eftate ; that a Leafe for Years could not be called a Real
Eftate, as it goes to Executors, and is liable to Debts by
limple Contrafl ; and the fame being Perfonal Eftate, it
would be hard to make it pafsTjy the Teftatrix's Devife
of her Real Eftate, efpecially where there is a different
Claufe in the Will relating to the Difpofition of the
Perfonal Eftate, and which by exprefs Words has be-
queathed all the Teftatrix's Mortgages and Credits ; and
when the Teftatrix had no other Mortgage, but that

now

(0 See the Cafe of Day verfus Tri^, Vol. i, 286,

Hillary Vac at i on y 1 719. 29

now in Queftion, and the extended Intereft upon the
Statute being a Debt, (as is alfo the Mortgage;) thefe
muft pafs by the Devife of all Mortgages and Credits:
That this is one intire Claufe, by which the Teftatrix
devifed all her Manors, Lands, Tenements and Heredi-
taments in Kent, Ejfex and Bucks, and is fatisfied by
palling the Fee-limple in Kent', and if it were an Ob-
je£lIon, that the Devife of the Lands in Bucks and Effex
would be void, lliould it not be conftrued to pafs the
Leafehold Lands in thofe Counties ; by the fame Rea-
fon, the Devife of all the Mortgages would be void, if
that did not carry the Mortgage of Cranbroke in Effex.

And of this Opinion was the Lord Chancellor upon
the Hearing before his LordHiip.

As to the other Point ; it was obje£led by the Coun- OnepofTef.'d
fel for the Appellant, that fuppofmg the Chattel In- yea^Tvi-'^
terefts to be comprifed in the firft deviling Claufe, it fed it to ^.
would follov/, that where one polTefTed of a Term for ^Jinj*^; ^^'
Years devifes the fame to A for Life, Remainder to his the Heirs of
Heirs, this is an executory Devife, and the fame as if this'Luron
the Devife were to A. for Life, Remainder to fuch Per- ^'^ ^^^^^
fon as Jhall be the Heir of A. and will operate by way ecutor,'\nd'
of Defcriptio Per[on<e. It was admitted, if I were to'J?^'°^'*
devife Lands of Inheritance to A. for Life, Remainder to
his Heirs, or the Heirs of his Body ; thefe are Words
of Limitation, and Ah Heir, or Heir of his Body fliall
take by Defcent : But in the Cafe of a Term for Tears
it is impoflible the Heir Ihould take by Defcent ; ne-
ver theleis a Term may by proper Words be limited to A.
for Life, Remainder to the Heirs of the Body, or to
the Heir General of A. after Ah Death ; in which Cafe
A. fliall in the mean Time take the Profits of the Pre-
mises for his Life.

Vol. III. I That

Hillary Vacation, 1 729.

I'hat as this was agreeable to the Reafon of the
Thing; fo there was the greatelt Authority ior it, even
the Authority of that Houfe ; for which was cited the
Cafe of Peacock verfus Spooner, (/) where one was pof-
feffed of a Term for Years, and on his Son's Marriage
affigned over the Term in Truft for his Son and his
then intended Wife for their Lives, and afterwards in
Truft for the Heirs of the Body ot the Son's Wife by
the Son. The Son had IfTue three Daughters, and
died ; and the Wife having adminiftred to her Hufbandj
married again, and with her fecond Hufband alligned
over the Term. In this Cafe the Determination of the
Lord Chancellor Jefferjs was, that the Truft of the
whole Term vefted in the Wife, and muft go to her
Executors or Adminiftrators ; but this Decree was re-
verfed by the Lords Commiffioners, and fuch Decree of
Reverfal affirmed in the Houfe of Lords: That conforma-
ble to this laft Determination was the Decree in the
Cafe of Dafforne verlus Ooodman iff at (g) made by the
Lord Sommers, who declared, he thought himfelf bound
by the Authority of the Calc of Peacock verfus Spooner^
and that it would be of dangerous Confequence to vary
from a Cafe fo folemnly adjudged, and render the Rule
of Property wholly uncertain and precarious, fince at
that Rate, none would know how to give an Opinion.

To which it was anfwered, that where a Devife of
a Term for Years is to A. for Life, Remainder after
A.h Death to the Heirs of A. both by the Reafon of
the Thing, alfo agreeably to the Precedents in Point,
this Remainder ought to go to the Executors of A.
and not to the Heir at Law. That it would be moft
plain, if one ftiould devife a Term for Years to A. and
his Heirs, this muft, after Ah Death, go to his Execu-
tor,
(/) 2 Vern. 43, 195. C|-) 2 Vern. 362.

Hillary Vacation^ ^l'^9' 3^

tor, and not to his Heir. So if the Devife were to A.
and after his Death, to his Heirs ; that it miift be the
fame if the Devife were to A. fur Life, and after the
Death of A. then to the Heirs of A. The Reafon is,
for that the Law fays, where a Term for Years is
given to any one, it lliall, after the Death of the
Grantee go to his Executors, and not to his Heir ; and
where the Limitation is made to the Heir, this is
thwarting and contending with the Law, and therefore
void. And though it fliould be admitted that where a
Term is devifed to A. for Life, and after his Death to
the Heir of the Body of A. (in the fmgular Number)
fuch Devife would be good, and take Effe6l by way of
defcriptio Perfon<€, as in Archers Cafe ; (h) yet when the
Limitation is in the Plural Number, and not fo much
as to the Heirs of the Body, but to the Heirs of A. in
general, (fo remote as that the Perfon who may be
Heir cannot pofFibly be within the View of any one)
fliould this be conftrued a good Limitation, it could no
way be barred by Grant, or Fine fur cmceffit j for if
good, it muft be fupported by way of Executory Devife.

As to the Authority of Peacock and Spooner, the fame
was allowed to be good ; it having been looked upon as
an Hardlhip for a Woman with an after-taken Hufband
to bar that Provifion which was made on the firft Mar-
riage, for the IlFue thereof; and therefore it was held,
that fitch a Provifion made by the Hulhand, though
out of a Term for Years, was within the Equity of the
Statute (i) of i i H. 7. and that the Wife could not in
fuch Cafe bar the liTue, (/. e. where the Limitation of
the Truft of the Term is to the Hulhand and Wife for
their Lives, Remainder to the Heirs of the Body of the
Wife by the Hulband) ; and yet even this Opinion pre-
vailed with Difficulty, and by a pretty ftrained Con-

ftrudion,

{h) I Co. 66. b.

(/) See IFe^b v. fVebby Vol. 1. 134 & 370.

31 Hillary Vacation, 1729.

ftru£lIon, a refined Reafon to help a compajjionate Cafcy in-
fomuch that if that very Cale were put of a voluntary
Settlement made after Marriage, the fame would hardly
come within that Refolution ; and a Devife is but a
voluntary Conveyance, though the moft favour'd of
the Kind. Or, if the Limitation of the Truft of the
Term, or the Devife had been, to the Hufband for
Life, Remainder to the Wife for Life, Remainder to
the Heirs of the Body of the Husband and Wife, here the
Coullru£lion would have been different; which was
the Cafe of Webb v. Webb (k) determined by the Lord
Harcourt on a View of Precedents and on Time taken
to conlider of it. Where a Term was affigned to Tru-
ftees in Truft for the Hufband for Life, Remainder to
the Wife for Life, Remainder in Truft for the Heirs
of their two Bodies, and the Hufband made an Afllgn-
ment of the Term ; this was decreed to be good, and
to bar the Heirs of the Body of the Hufband and
Wife, and that the whole Truft of the Term, fubje£l
to the Wife's Eftate, vefted in the Hufband. And this
being the laft Precedent, and infinitely ftronger than
the principal Cafe, it would be dangerous to vary
therefrom, efpecially lince here the Term is devifed to
A. for Life, Remainder to his Heirs at large, who
might be remote, never known, feen, or heard of by
the Tenant for Life, nor by the Teftator, and confe-
quently who could not be fuppofed to be within his
View or Contemplation ; and fuch a Devife was never
attempted to be made good.

In the laft Place the Counfel for the Refpondent
ftrongly infilled on the very great Delays that had been
made ufe of by the Appellant in this Cafe ; and that
though the Caufe had been four Times heard in Chan-
cery, yet this laft Point had not been ftarted till now.
Wherefore it was prayed that the former Decree fhould
1 be

{k) Vol. I. 134. ubi fupra. •

Hillary Vacation^ 172.9. 33

be affirmed, and the Appeal difmilTed \ which was ac-
cxirdingly done, with 200 /. Cofts.

I was of Gounfel with the Refpondent;

^ones verfus Goodchihl ^'^^

•-/ Lard Ci

Lord Chan-
cellor Kina:.

A Mother of a Baftard Clilld by her Will gave all ^^'''^'^
her Perfonal Eftate to the Child, and made B. and ^2^7
C. her Executors, in ordeir to take Care of her Child 'eaves a per-
and to do it Jurtice. The Mother died, and within [HL^e^'!
a fhort Time after the Baftard died Intettate, without cutor in
"Wife, or liTue. One of the Executors brought this thrBaftard,
,Bill againft the Mother of her that was the Mother of ^^J^'^'^^i"-

tcu3tc End

the Baftard, and who had in her Hands the Portion withou't
belonging to the Baftard, praying an Account of the j^'^^'-^jj'^'

lame. Executor

brings a Bill
againft one who has Part of this Perfonal Eftate In his Hands. The Defendant demurs, be-
caufc the Attorney General and tlie Adminiftrator of the Baflard are not Parties ; Demurrer
difailow'd, for that the Executor has the legal Title, and confequently may fue for the Eftate.

The Defendant, the Mother of the Baftard's Mother, ^ Baftard

_ ir* /> •• 11 dies intclt«itc

demurred ror want or proper Parties ; m Regard the without
Adminiftrator of the Baftard, and likewife the Attorney JJ^'f^ °^^^^'
General in Right of the Crown, ought to have been King is in-
brought before the Court: For that it was plain the JheoVinJary
Crown was intitled to the [B] Perfonal Eftate of a of Courfe
Baftard dying Inteftate without Wife or Ifl'ue, con- mfniftratio'n
fequently without any Relation ; and lince the King ^o ^^^ ^^-
might give the Perfonal Eftate of fuch Baftard to any Grantee of
other Perfon, and the Courfe being for the Ordinary to ^^^ Crown.
Vol. III. K grant

[B] The Reporter has fubjoined the following Querie. A Church
Leafe for three Lives is granted to a Baftard and his Heirs, who dies
without Ifiue and Inteftate, what (hall become of this Leafe ? (hall it go
to the Adminiftrator of the Baftard, or to the Crown •, or does the Li-
mitation

54 Hillary Vacation, 1729.

grant Adminlftration to fuch (/) Patentee of the
Crown ; the Defendant would be hable to account over
again to fuch Patentee for the Perfonal Ertate of thei
Baftard, and by that Means to be put to double Ex-
pence and Vexation.

Lord Chancellor : The Executor of the Baftard's Mo-
ther is legally intitled to the Perfonal Eftate of his
Teftatrix j and though this may be in Truif for the
Baftard, yet as the Executor has the legal Title, he
can give a good Difcharge to the Defendant, therefore
over-rule the Demurrer.

l<lote ; In the like Cafe an Executor, though a bare
Truftee, and though there be a Reliduary Legatee, is
intitled to fue for the Perfonal Eftate in Equity as well
as Law, unlefs the Ce^ny que Truft will oppofe it.

mitation to the Heirs make any Difference ; or is it Caftis omjfus out of
the Adt of Frauds and Perjuries, and fo remains liable to Occupancy at
Common Law ? Or lallily, is the LefTor intitled, the Leafe being deter-
mined v for that the Premiffes being granted to the Leflee and his Heirs
during three Lives, and the Leflee being dead without Heir, the Leflbr
may re-enter, in the fame Manner as where a Grant is to a Man and the
Heirs of his Body for three Lives, (in which Cafe the Heirs of the Body
take as fpecial Occupants) Remainder over, and the Grantee dies with-
out Ifl"ue during the three Lives ; the Remainder Man fhall take. See
poft Low V. Burron. aSi.

(I) Salk. 37. Manning v, Napp.

Hodfon

Hillary Vacation, 1719. 1^

Hodfon (of the Six-Clerks Office^ verfus

Earl of Warrington. f^ K^g.

Cafe 10.
Lord Chan-

AT the Hearing of this Caufe It appeared, that the jam's w!"'
Defendant had examined a Witnefs to prove a"efsprovesa
Deed executed by him to his Brother, to whom he refers' to it
was Admin iftrator, and claimed to be a Creditor by '".''•^ ^^p°-
Judgment, which Judgment was laid to be dilcharged piaintifF
by the Deed fo proved in the Caufe, the faid Deed ^^^j^^^^J "^^";-
being alledged to amount to a Releafe ; in Confequence fcndam to
whereof there would be AlTets to pay the Debt due pJ^^'^'^^/J'^^^
from the Inteftate to the Plaintiff. And now the Hearing, the
Queftion was, whether the Plaintiff could compel the thereTo^ot
Defendant to produce this Deed ? xm-Vin-^o it

*■ Part of tlie

Depofition,

It was urged for the Plaintiff that he might ; for
the Defendant having proved it, and the Witnefs ha-
ving referred therfcto by his Depofition, the fame was
now become Part of the Depofition itfelf, and in the
Poffeflion of the Court ; and as the Plaintiff could
read any Part of the Depofition taken for the Defendant,
by the fame Reafon he might iniift on having the Deed
produced ; and that the Maflcr of the Rolls had made
many Orders to the like Purpofe.

To which it was anfwered, it was true the Mafler of
the Rolls had made many fuch Orders, but then it was
as true, that whenever thefe came before the Lord
Chancellor, they were as conftantly fet afide ; that a
Deed was not Part of the Depofition unlefs mentioned
therein in hzcc verba ; and that, as to the Deed the
Defendant had proved, it remained at his Ele6lion whe-
ther he would make ufe of it or not ; that accord-
ingly it was fo ruledin the Cafe of Calmady v. Calmady,
z where

5(S Hillary Vacation, 1729.

where the Court would not oblige the Defendant to
produce a Deed which he had proved.

The Lord Chancellor held this to be the Courfe of the
Court, and therefore would make no Order for the
Defendant's producing the Deed.

ThePiaintifF \^ ^^ f^j^e Cafg \^ ^{q appeared, that the Plaintiff
ment in the had recoveied Judgment in the ?eny Bag ; after which
^^^^^S|^ the Defendant brought a Bill, and had flopped the
he is flopped Plaintiff two OF three Years by an InjunQion ; So
tYon?^thr that the Plaintiff In the judgment could not regularly
Year and fue out Exccutlon wIthout a Scire facias. Wherefore
SpiaintifF it was movcd, thatt he Plaintiff at Law might, under
tho' hindered thefg Clrcumftanccs, fue out Execution without ^ Scire
iLetion^'ytt facias, and not fuffer by the A£1 of the Court.

cannot fue

out Execution without a Scire facias.

Sed per Cur* : I cannot alter the Courfe of the
Court, but mull take Care to preferve it ; and it
being above a Year and a Day after the Judgment,
let the Plaintiff fue out his Scire facias, [C]

[C] ^ Whether in this Cafe the Plaintiff Hodfon could not have
taken out Execution, and continued it by Vicecomes non mifit breve^
agreeably to what was faid by the Court of B. R. in the Cafe of Booth
and Bcolh, Salk. 322.

D E

Term. S. Trinitatis,

1729,

Nevjfome verfus Boviyer. &reii.

Lord Chan-

Art 1 / r \ • 1 r 1 '^<'//i"' King.

N Hulband (one Daxpjon) was attainted of Felony where the
for raling and altering a Bank Bill, and after- Hulband was
wards pardoned, upon Condition he fliould within — Felony, and
Months tranfport himfelf out of his Maiefty's Domi- Pf^^oned on
nions or Great Bmain and Ireland, and continue in Tranfporta-
Exile during his Life. After the Pardon, upon the''""' ^"'^f^'

o '1 terwards the

Death of the Wife's Father, (who was a Freeman of Wifebecame '
London) a Share of the Orphanage Part came to the fome'pedb-
Wife of the Perfon attainted; and it was admitted, naiEftate, as
that the Orphanage Part coming to the Wife after the Fryman of^
Pardon of the Huftand, and after fuch Time as he had ^^^don-, this
tranfported himfelf, was not forfeited. But then it fta!c°decreed
was obicfted, that the fame coming to the Wife after ^? ^l'°."§ ^^

J ' _ o the Wife as

the Pardon of the Hufband, did belong to the Huf- toa/VwJf/f.
band, who by the Pardon was become capable of
taking.

On the other Side it was infilled, that this was jufl
as if the Hufband had been banilhed by A£1 of Parlia-
ment, or had abjured the Realm ; like the Cafe of

Vol. 111. L Jiidge

38 De Term, S, Trinitatis, 1729.

— \

Jiuige Belknap, or that of Thomas De-Wayland, \ Infl. 13^.
where it is laid, that the Wife of one banifhed for Life
may fue as a Ferae Sole : The fame of the Wife of one
who has abjured the Realm, it being a Civil Death ;
and that this was to be compared to Abjuration, which
is a voluntary A61 of the Party, and in which Cafe the
l-aw fcHrmerly was, that one who had committed Fe-
lony, and fled to a Church or Sanctuary, provided he
Ihould voluntarily abjure the Realm, was not punllhable
with Death. And the Cafe in 2 P'ern. 104. Count efs of
Portland verfus Prodgers was cited, where it is determi-
ned, that the W^ife of an Huiband banilhed for Life
may make a Will, and a£l in all Things as a Feme
Sole (a) [a].

The Lord Chancellor feemed to hefitate fomewhat in
his Opinion, but exprefled an Inclination to affift the
Wife ; neverthelefs he thought this was no Banifliment,
which cannot be but by A£l of (b) Parliament ; neither
could it, as he apprehended, be refembled to Abjura-
tion [B], However his Lordihip ordered it to come

(a) See alfo Salk. 1 1 6. Dearly verfus Duchefs cf Mazarine,
{b) I Inft. 133.

[A] A Feme Covert, having a feparate Eftate, may in a Court of
Equity be fued as a Feme Sole, and proceeded againft without her Huf-
band ; for In Refpedl of her feparate Eftate, flie is looked upon as a
Feme Sole, 2 Vern. 615. And in a Court of Equity (though not in
Law) Baron and Feme are confidered as two different Perfons ; and
therefore a Wife by her Prochein Amy may fue her own Hufband, Pre-
cedents in Chan. 24. 2 Vern. 493. and in the Cafe of Bell verfus Conmif-
fary Hyde's Wife, upon Affidavit that flic had a feparate Eftate, a Sub-
poena ferved upon her to appear and anfwer after fuch Time as iier
Hufband was gone to Holland., and in the Queen's Service, was by the
Lord Keeper Harccurt, after advifing with Sir John Trevor, Mafter of the
Rolls, ruled good ; and the Wile in that Cafe prayed, and had Time to
jnfwer. Laft Seal after Hill. Term, 1 7 1 1 .

[B] As fo little occurs in the modern Books concerning Abjuration,
it IS prefumed the following Account of it will not be unacceptable to
the Reader:

I By the ancient Common Law of England, if a Man committed any

Felony, excepting Sacrilege, and fled to a Parifti Churchy he might

within

De Term. S. Trinitatis, 1 729. 39

on again, and the Matter to be ftated in a Petition by
way of Cafe [C].

within forty Days before the Coroner confefs the Felony, and take an
Oath to abjure the Kingdom for ever; and if he thus confefled, and took
the Oath, he was thereby attainted of the Felony, and then he had forty
Days from the Coming of the Coroner, to provide and prepare for his
Voyage ; and the Coroner affigned him fuch a Port as he chofe for his
Departure out of the Kingdom -, and if he did not go ftraightway out
of the Kingdom, or being gone out, did return without Licence, he
had Judgment to be hanged, except he was a Clerk, and then he had
his Clergy. This Praftice was what the Law called Abjuration ; and
being by feveral Regulations (in the Time of H. 8.) in Effeift taken
away, the Revival thereof was by 3/5 Eliz. cap. i. feSt. 2. thought to be
a wholefome Severity, fit to be inflidted on the Proteftant DilTenters of
thofe Times: But the Toleration Aft {i W. & M. flat. i. cap. 18.
feS. 4.) does exprefly, and by Name, exempt the Proteftant DifTenters
from the Penalties of 35 Eliz. See Sir Pe/er King's Speech in Mainte-
nance of the fccond Article of Impeachment, at Dr. Sacheverel's Trial,
Slate Trials, Vol. 5. p. 693.

[C] It appears from the Regifter's Book, that on the i8th of March
1729-30, the Sum of 599/. lys. yd. was ordered to be laid out on
Government Securities with the Approbation of the Mafter ; and that
the Intereft and Produce thereof, and likewife the Arrears of the Di-
vidends on 500/. S. S. Annuities, and the future Dividends, fhould
be paid to the Wife for her Maintenance, until further Order of the
Court ; and that afterwards the Wife, on the Hufband's dying, married
again -, and on the Petition of the lecond Hufband and Wife, heard
20ch Oil. 1 73 1, it was ordered, that the Truftees in the Freeman's Will
fhould transfer the 500/. S. S. Annuities, and alfo pay the 599 /. 17 s.
7 d. and the Dividends, co the fecond Hufband.

D E

Term. S. Trinitatis,

1730-

ore 12. j/j. Jermin Davers &* al' verfus Sir
SK^g. Jermin Deivei &f af.

In a Caufe brought on by Conjent for the Opinion of th

Lord Chancellor.

decrare7h;! T^^^^'^ ^^tc Lord Dover, being feiTed in Fee of
tion to **■ -^ the Manor and Manor-Hoiife of Cheevely in Cam'

A. by Will

Intention to **■ -*• the Manor and Manor-Houfe of Cheevely
hoSo'id ^^^ bridgefljire, and having very rich Goods and Furniture
Goods by his there, together with great Qiiantities of Plate j and
devifes the^ bcing poffefTed of divers Leafehold Houfes in St. Mar-
Ref^ueof fiy;'^ and St. James's, WeUminUer, by his Will dated the
Eftatenot 20th oi January 1707, appointed r/;owrtj i^o/A^j, Efq;
difpofed of, and others, ( fmce deceafed ) Executors, leaving the
to be difpofed iaid Folkes a Legacy of 200/. for his Trouble. He
dici^to £' g^^'^ to his Wife the Lady Doier all his Plate whatfo-
Wife. Af- ever for her Life, 5000 Ounces whereof were to be at
Teftat'or ^^^ ^^^ Difpofal for cver : But declared, that he intended to
makes a Co- difpofe of the Rejidue of his Plate by a Codicil. He gave
dc^s'not dif- ^^^'^'^'^^ Houfe to his Wife for Life, declaring, that he
pofe of his T((,ould difpofe of t,he Goods and Furniture in Cheevely
Goodsthetc- Houfe after his Wife's Death by a Codicil to his Will', and
ho'f toU then by his Will he bequeathed the Refidue of his Per-

Goedsfhall not go to the Rcfiduary Legatee, but according to the Statute of Diftribution.

z fonal

De Term. S, Trini talis, 17 30. 41

jonal Elhate rvhatfoever not before difpofed of or referved
to be difpofed of by his Codicil^ to his Wife the Lady Do*
'ver. Afterwards the Lord Dover made two Codicils
without difpollng of his Goods and Furniture in Cheevely,
Houfe, or of the Surplus beyond the 5000 Ounces of
Plate, and died in April 1708, leaving feveral Nephews
and Nieces by his Brothers and Sillers (who all died in
his Life-Time ',) but fome of them left more Children
than others.

The Lady Dover^ who was a Papift, made her Will,
having appointed Richard GippSy Efq; and one Robins^
Executors, and Mr. Gipps, Refiduary Legatee, and died
the 1 2th of OSiober 1726. Upon this Cafe the fol-
lowing Queftions were made, and laid before the Lord
Chancellor for his Opinion.

FirU, It was argued, that thefe Goods and Furni-
ture in Cheevely Houfe, and the Surplus of the Plate,
did, by the Lord Dover s Will, belong to his Lady,
and pafled to her as the Devifee of the Refiduum of
the Perfonal Eftate ; for that, though the Teftator did
declare by his Will, that he would difpofe of his Goods
and Furniture in Cheevely Houfe by his Codicil, and
likewife that he intended thereby to difpofe of the
Refidue of his Plate beyond the 5000 Ounces; ftill
this was no more than an Intention, and he having
made two Codicils afterwards without difpofing of ei-
ther of thefe Things, it lliewed he had altered fuch his
Intention, and chofe to let them fall into the Refi-
duum devifed to his Lady. That as to the Bequefl
of the Surplus of the Perfonal Eftate, though it was
but of the Refidue of the Perfonal Eftate not before
otherwife difpofed of, or referved to be difpofed of,
yet that did not prevent the Lady Dover s taking them
as Refiduary Legatee. And, fir^, thefe Words not
otherwife difpofed of would not bar her 5 lince the
Vol. III. M Goods

42 De Term. S. 7rinitatis, 1730.

Goods and Furniture of the Houfe were not otherwife
difpoted of by the Will ; nothing more appeared by the
Will, than that the Teftator the Lord Dover intended
pthervvlfe to difpofe of the fame, which he had not
done. And the Solicitor General compared it to the
Cafe where the Teftator does aftually by Wi:ll make
a Bequeft of a Leafe for Years, or other valuable
Thing to any Perfon, and makes another Refiduary
Legatee ; this is not only declaring an Intention, that
the Reiiduary Legatee Ihall not have this Leafe, but
that the Teftator a6lually gives it to another. And in
the Cafe put, fuppofe the like Words were in the Will,
as are in the prefent Cafe, (^7;^.) that the Teftator
gives the Surplus of his Perfonal Eftate not otherwife
dilpofed of by his W^ill, and then the Legatee of the
Leafe dies in the Teftator's Life-I'ime ; there would be
no Qiieftion but that this Leafe, though not Intended
by the Will to go to the Reiiduary Legatee, but actu-
ally given from him, Ihall yet tall into the Relidue ;
and by the Hke Reafon fo fliould it do in the principal
Cafe. Then, as to the Words following, " nor referred
" to be difpofed by my Codicil " this could be no ftronger
than in the former Cafe put, {vi^i.) that he had dif-
pofed of a Legacy by his Codicil to one who after-
wards died in his (the Teftator 'sj Life-Time; which
yet would not hinder it from falling into the Bequeft
of the Refiduum : That it would be hard to maintain,
that the Teftator the Lord Dover, who had made a
Will, and taken fo much Care In his Difpofitions,
ought to be conftrued to die inteftate, as to any Part
of his Perfonal Eftate.

But the Lord Chancellor was of Opinion, that thefe
Goods and Furniture in Cbeevely Houfe, and the Sur-
plus of the Plate beyond the 5 coo Ounces, were un-
difpofed of by the Will, and Ihould go to the next of
Kin according to the Statute of DIftribution; that it
I was

De Term. S. Trinitatu, 1750. 43

was plain the Teftator did not intend they (liould pafs
by the Will, but referved them to be difpofed of by a
fubfequent Codicil ; and if it were admitted, that the
Lord Dover did not intend to difpofe of them by the
"Will, his Lady as Relidiiary Legatee could not thereby
be intitled to them ; becaute the Devife of the Surplus,
as penned, was very ftrong againfl: her, giving her the
Relidue of the Perfonal Eftate not thereby otherwife
difpofed of, or referved to be difpofed of by the Codi-
cil. Now the Goods in Queftion were referved to be
difpofed of by the Codicil, and therefore could not pafs
by the Devife of the Refiduum by the Will.

Secondly, It was contended on Behalf of Mr. Folkes the
only furviving Executor, that he was intitled to thefe
1'hings as Executor ; for that, though there was an ex-
prefs Legacy to him, there was the like alfo to the
next of Kin ; and then the Executor, as fuch, has a
general Right at Law to all the Teftator's Perfonal
Eftate not given from him by the Will.

Sed per Cur*: Mr. Folkes the Executor having an ex- '^^'^ere an
prefs Legacy of 200// given him for his 1'rouble, and an exp^refs ^*
the Reft of the Perfonal Eftate being difpofed of, or ^i^s^'^y f"""
at leaft intended to be difpofed of by the Codicil, Mr. Pains, tho'
Folkes is plainly to be confidered but as an Executor ill? ^l^^ °!,

., •■ •' Kin has alia

in 1 rUlt. an exprefs

Legacy ; yet
the Surplus fhall go according to the Statute of Diftrlbution ; efpecially if the Surplus was
intended to Ije difpofed of.

Then it was infifted, that the Wife of the Lord
Dover, though a Papift, was capable of taking a Leafe-
hold Eftate by Devife ; for which Purpofe the Statute
of the I ith and i 2 th Will. 3. cap. 4. fe^. 4. was men-
tioned, whereby it is provided, " That from and after
" the 29th of September 1700, if any Perfon educated
" in the Popifti Religion, or profefting the fame, ftiall

not.

44 ^^ Term. S, Trinitatis, 1730.

*' nor, within fix Months after he or they fliall attaini
" the Age of Eighteen, take the Oaths of Allegiance
*' and Supremacy, and conform, ^c^ as by the A£t
is required, " every fuch Perfon fliall, in Refpedl: of
" him or herfelf only, and not to, or in Refpe£l of
*' any of his or her Heirs or Pofterity, be difabled, or
*' made incapable to inherit or take by Drfcent, De-
" vife or Limitation, in Pofleflion, Reverlion or Re-
" malnder, any Lands, I'enements or Hereditaments,^
" ^c. And that during the Life of fuch Perfon, and
" until he or llie fhall take the Oaths, and conform,
" ^c. the next of his or her Kindred, which fliall be
" a Proteftant, fhall have and enjoy the laid Lands,
" Tenements and Hereditaments,wirhout being account-
" able for the Profits by him or her received during
" fuch Enjoyment ; but in Cafe of any wilful Wafte
" committed on the faid Lands, is^c. by fuch Perfon lo
" enjoying, the Party difabled, his, her, or their Exe-
" cutors or Adminiftrators fliall recover treble Damages
" for the fame agalnfl the Perfon committing the lame,
" his, or her Executors or Adminiftrators, by A£lion
" of Debt."

Now as to this ; the Lady Bover being above the
Age of eighteen Years and fix Months at the Time of
palfing the A61, and at the Death of her Hufband the
Teflator the Lord Dover^ fhe was faid to be perfe£lly
out of the faid Claufe, becaufe it was impoifible for
her to take the Oaths, and conform purfuant thereto,
fhe being above the Age of Eighteen and eight Months
before the A61 was made ; and it was reprefented, as
not likely to be of any mifchievous Conlequence to
conftrue the Lady Dover out of the A£1, as being eigh-
teen Years and eight Months old when the lame pafTed;
forafmuch as there are very few now living, and fhortly
will be none living, who were of that Age at the
Time of pafling the A£1, (yi^.) in 1700. And with
2 Regard

De Term. S. Trinitatis, 1 7 JO. 49

Regard to the following Words, which are Part of the
fame Paragraph, " That from and after the loth Day
*' oi April 1700, every Papift, or Perfon making Pro-
*' feflion of the Popilli Reh'gion, fhall be difabled, and
" is hereby made incapable to pitrchaje^ either in his or
her Name, or in the Name of any other Perfon or
Perions, to his or her Ufe, or in Truft for him or
her, any Manors, Lands, Profits out of Land, Te-
nements, Rents, I'erms or Hereditaments in England
or Wales, &c. And all and fingular Eftates^ I'erms
and any other Interefts or Profits whatfoever out of
*' the Land, from and after the faid loth oi April to
*' be made, fuffered or done to or for the Ufe or
*' Behoof of any fuch Perfon or Perfons, or upon any
*' Truft or Confidence mediately or immediately, to
*' or for the Benefit or Relief of any fuch Perfon or
Perfons, {hall be utterly void, and of none Effect
to all Intents, Conftru6lions and Purpofes whatfo-
ever :" With refpe61: to this Claufe it was argued,
that though the Words may feem general, and to take
in all Papifts of what Age foever, yet they difable lucli
as take by Purchafe only ; and the Word Devife being
left out of this Part of the Claufe, and inferted in the
former Part, flievvs it to have been the Intent of the
Ail, that this latter fhould not extend to a Devife, but to
a Purchafe only, where the Party Papift contrails for an
Eftate, which by this Claufe he is difabled to do : And
taking the latter Claufe to extend to a Devife as well
as the former, the A£1 is inconfiftent ; for that by the
latter Part of the Paragraph no Perfon whatfoever that
is a Papift, though of any Age, can take ; whereas by
the former Part an Infant under the Age of Eighteen
and a Half, may take, if fuch Infant lliall duly con-
form.

Vol. IIL N To

4^ De Term. S. Trinitatis, 1730.

tute

APapiftcan- To whlch the Lord Chancellor replied, that if this
Freek)id or "^^'^^^ ^^^ Integra, it would be indeed very queftionable,
Leafehoid but that the Point had been fettled in the Cafe of
wn^ b^- Roper and Ratcliffe (a) in the Houfe of Lords, after fo
r w^i'r"^ folemn a Debate, as ought to render it conclufivre to all
taking by the Courts at IVeUminsier ; that accordingly feveral fub-
^Tb"^'^he ^^9^^^"^ Refolutions (/>) had been made puriuant thereto,
cxprefs and therefore to recede from this, would create great
jye^Sratute Confufion and Uncertainty, the Confequence of which
ii£5fi2^^ was, that the Word Pur chafe muft, according to the
PapHt isdif-^t)ove Rcfolution, be underilood of taking an Eftate by
abied to take Putchafe J and he who takes by Devife does, in Con-
aVo Terms' ftrucSion of Law, take by Purchafe. And the Words
foTYtars ate Xerms for Tears being particularly mentioned in this
mentioned Claufe, and the latter Words thereof being exprefs,
in^dieSta- (i^^t all fuch Eftatcs, Terms and [a] Interefts fo made,
fhall be void 9 his Lordfhip was of Opinion, that the
Lady Dover, being a Papift, was not capable of taking
thefe Leafehold Eftates by Virtue of her Hufband the
Lord Dover's Will ; obferving withal, that the Cafe of
Roper and Ratcliffe was very ftrong, even much ftronger
than the prefent ; in Regard that was not of a Devife
of Land, or of a Truft of Land, to a Papift ; but a
Devife only that the Land fiiould be fold for Payment
of Debts and Legacies, and the Surplus paid to a Pa-
pift ; which was notwithftanding refolved to be a Profit
out of Land j and as the Devifee of the Surplus might
in Equity, on Paying the Debts, ^c. ele£t to take the

Land,

(a) Pafclije, 1 3 Anna;. (I) See the Cafe of Bill verfus Filkirif

Vol, 2. 6.

[A] For this'Reafon it has been determined, that where a Judgment
■was given to a Papift, he could not extend the Land ; for that would
give him an Intereft in the Land ; and it is the fame Thing, where
the Judgment is given in Truft for a Papift. By Lord Parker, Lawtber
rcrbis F/eicbeTt Hill. 1719.

De Term. S, Trinitatis, 1730. 47

- 7 III . ■ I 11 , ■ ,M I , "■ ■! II I I ■ 11

Land, and prevent the Sale, therefore it was held to
be within the Aft.

Whereupon it was urged, that fuppofing the Devife
of theie Leafehold Eftates to the Lady Dover was void,
{he being a Papift ; then the Confequence would be,
that they muft go according to the Statute of Diftri-
bucion, which gives the Wife Half, where there are no
Children, as in the prefent Cafe,

But here it was inllfted by the other Side, that as
the Wife, being a Papift, could not take by a WilU fo
neither could fhe be intitled by the Statute of Diftri-
bution, which is a Will made by the Legijlature for fuch
as have made none for themfelves ; and it would be
putting it in the Power of the Papift to elude the A61: by
faying, " I know I cannot give my Leafehold Eftate
" to my Wife or Child that are Papifts ; but I will die
" inteftate, at leaft as to fuch Leafehold Eftate j" and
then the Aft of Parliament will give it to them, the'
they be Papifts. Befides, there are remarkable Words
in the Aft made to prevent the Growth of Popery, in
the Claufe aforefaid, which fays, " That all Eftates,
Terms or Interefts made, done or fuffered, to or to the
Ufe of a Papift, Ihall be void." Now dying inteftate
is {iiffering the Eftate, for want of a Will, to go to a
Papilt. Alfo the Intent of the Aft was, that the Pa-
pifts fhould not be capable of taking any IntereU in
Leafehold or Freehold Eftates, whereby they might be
enabled to prejudice the Government ; and whether
fuch Papift has the Eftate either through the Gift of
the Anceftor by his making a Will, or by his dying
inteftate, it will be equally within the Mifchief in-
tended to be prevented by the Aft ; and though this
might feem an Hardfiiip, it was no more ftill than
what the Aft defigned, (w^.) to put Hardfliips upon
Papifts, in Order to their Conformity.

2 On

48 De Term. S. Trinitatis, 17 3O.

On the contrary it was argued, that though the A£l
did intend to put Hardlhlps on Papifts, yet it was only
' fuch Hardlhips as the Words and plain Meaning thereof
necelTarily imported ; that whether a Papiil: was diC-
abled to take by the Statute of Ditbibution, was a
Queftion never yet determined ; that the Term [B]
fuffered on which fo much Strels had been laid, was
plainly thrown into the A61: as a Word of Courfe, and
applicable to fuch Conveyances as Ihould thereafter be
made to the Ufe of, or in Truft for, a Papift, by way of
Common Recovery, but that fuppofing the Word fujfered
was to be taken in the largeft Extent, then a Defcent
would be within the Claule, and fo on Lands could
dejcend to a Paplft of above the Age of eighteen Years
and fix Months ; for when Lands come by defcent to
an Heir, it is what the Anceftor Juffers to happen for
want of a Will : That by fuch Conftruillon all the
Freehold and Leafehold Eftates that flioidd ever come
to Papilfs would be effe£lually difpofed of j the for-
mer, to the Lord by way of Efcheat, and the latter
to the Crown, for want of an Owner. Lalfly, that
this was a penal Law, and not to be extended by any
liberal Conllru6lion.

A Papift, if LQfd Chancellor : I do not know that this Point was

above i8 -tj i x r .r^ ■ • i r-^-ii

and a half, is ever in Judgment, but I am of Opinion that a Papiit
capable of ^^y ^^^^ within the Statute of Diftributlon. I muit
Lands by recur to the dlfabling Claufe in the latter End of the
^fj^^P^pij^ Statute of the ii ^ 12 If. 3. made to prevent the
may take a Gtowth of Popery, whlch fays, " That no Papiif fhall
ihte°by th^ " purchafe any Manors, Lands or Terms, t^V." Now
Statute of a Purchafe mufl be by the A£1 of the Party in the way
1 ri u ion. ^£ Qj,2j^j. Qj. Conveyance, or ac lealt by a Will ; but in

4 the

[B] This ExprelTion, and indeed the whole Paragraph, is altnoft
Word for Word trai>fcribed from 1 Jac. i. f<7p. 4. feii. 6.

De Term. S. Trinitatis, 1730. 49

the Cafe of one dying Inteltate, it is the AB of the
Larv, [C] it is the Leg/ffature that gives theie dUlributary
Shares to the Widow and next ot Kin, it is a Succeffion
ab Inteflato to a Perfonal Eftate, fimilar to a Defcent of
Land, where an Heir, though a Papift, (as here) if
above the Age of eighteen and fix Months, may in-
herit. Befides, the Intent of the Statute of Dlftribu-
tion was, that the Adminiftrator Ihould fell all the
Perfonal Eftate of the Inteftate, turn it into Money,
and diftrlbute it ; now it would be inconfiftent, thac
the Papift (hould have a Share of the Money left by the
Inteftate, but not of the Money raifed by the Admini-
ftrator out of the Inteftate's Eftates.

In the next Place it was admitted on all Sides and
decreed, that as to all perfonal Things, and in parti-
cular the Goods and Furniture at Cheevely^ and the
Surplus of the Plate above the 50OC Ounces, the Lady
Dover the Widow was intltled to a Moiety thereof by
the Statute of Diftribution.

The laft Qtieftlon was, whether the Perfonal Eftate
which the Lord Dover had left undifpoled of by his
W^ill, fliould be diftributed per Stirpes or per Capita?
The Lord Dover having left only Nephews and Nieces,
(7;/^.) One Nephew by his Brother, and three Nephews
and two Nieces by a Sifter. Whereupon it was ob-
je£l:ed, that were this the Cafe of Grand-Nephews and
Grand-Nieces that were next of Kin, they fhould take
[D] per Capita ; becaufe the Statute fays, " There

Vol. III. O " ftiali

[C] By the I'ime Reafon it fhould feem, that a Papift is capable of
taking as Tenant by the Curtefy, or in Dower.

[D] It may in this Cafe be not improper to take Notice, that where a
Perlbn thus intitled to a diftributary Share, dies within a Year after the
Inteftate -, in fuch Cafe, though by the Statute no Diftribution is to be
made within a Year, yet the Share of the deceafcd Perfon will be an In-
tcreft veftcd, tranfmilfible to his Executors or Adminiftrators ; For in

this

90 De Term. S. Trimtatis, 1730.

" fhall be no Reprefentation among Collaterals after
" Brothers and Sifters Children :" But among Nephews
and Nieces, (as here) there may be Reprefentation by
the cxprefs W' ords of the Statute.

inteftate'" ^ut hcre Lord Chancellor interrupted the Counfel
without If- and faid, that all thefe Nephews and Nieces of the
o"/sifter, but Inteftate were equally of Kin to him, and took as fucb,
leaving fe- 2x\A Hot by Rcprefeutation ; confequently they muft
thers and take -pet Capita^ and not per Stirpes ; fecus had any one
Sifters Chii- Dj-Qjiigj. ^j. Sifter been livinij at the Lord Dozers

oren, Iviz.) . , ^

OneNephew Death : That this Point had been determined by the
lld^hrS'''' Lord Sommers upon great Deliberation in the Cafe of (c)
Nephews Wal/h and IVal/Jj, and fubfequent Cales having been re-
Niecerby a ^^Ived agreeably thereto, it was fit that Matter fliould
Sifter; thefe now bc at reft.

fhall take
per Capita,

and not per this Scnfe the Statute makes a Will for the Inteftate ; and it is as if a
Stirpes, be- Legacy was bequeathed payable a Year hence, which would plainly be
caufe all e- ^^ Intereft vcfted prefently. Nay, where one died without Wife or
2^.* ^ ° Iflue and Inteftate, leaving a Father, who alfo died before taking out Ad-
miniftration, or altering the Property of the Efliate ; though in that
Cafe there was only one who could claim as next of Kin, and fo, li-
terally and ftridly ipeaking, there could be no Diftribntion % yet by the
Statute, the Right to the Inteftace's Perfonal Eftate vefted in the Father,
and confequently belonged to his Executors or Adminiftrators, and not
to the next of Kin to the firft Inteftate, who in fuch Cafe happened to be
a different Perfon, Grice v. Grice, by the Lord Cowper, Hill. 1708. And
note ; Mr. Vernon upon this Occafion told the Reporter, it had been
twenty Times determined in Equity, that where there is only one Per-
fon intitled to take the Perfonal Eftate of the Inteftate, as next of Kin,
the Statute vefts the Right in that Perfon, making him as a Legatee of
the Party deceafed.

{c) Precedents in Chancery 54.

Storh

De Term. S. Trinitatis, 1730. ^I

Storke verfus Storke &' e contra, ^f^^ 'f

Lord Chan-
cellor King.

7I4MF5 Storke, a confiderable Merchant at Rumfey a Pnibyte-
in Hamp/Jjire, had three Daughters, Mary, Eli^deth, [jf.eJtui'f
and Ann Storke ; James Storke was a ftrl£l Prefbyterian, Daughters
and bred up all his Children and Family that way ; he t'avVanf
had three Brothers, Samuel, Thomas, and Abraham, who ^ad three
were alfo Prefbyterians. The faid James Storke having Prefbytwi-
furvived his Wife, made his Will, and appointed his ^"SLj^akes
three Brothers and one Andrervs (who was a Clergyman pointing'his'
of the Church of England, and his Wife's Brother) ^^°'*^"s.
Executors thereof, and Guardians to his three Infant clergyman
Children. The Teftator in his Life-time fent his eldeft ?^'^\ ,

^ „ Church of

Daughter, who was lixteen Years or Age, to his England,
Brother Samuel Storke, a Merchant in London, to be ^^"^^5 Sree
educated, and foon after died. Upon his Deceafe, An' infant
drervs, one of the Guardians, living near the I'eftator anTdieT/ha-
in Hamp/hire, got into his Cultody the two Daughters ving fent his
that Were at their Father's Houfe at his Death, and Daughter to
placed them at a Boarding-School in Hamp/hire, where ^'^ ^^^^
they were bred up in the way of the Church of England. The ciergy-
Afcer which he procured a Bill to be brought in the ""^^ s^f ^^^

XT C 1 1 r 1 -nir '■'^" other

Names or the three Infant Daughters, againlt the four Daughters
Executors and Guardians, for an Account of the Te- T° ^" ^J"

1 > r I 1 n r itody, and

llator s Perfonal Eltate, the greateft Part whereof was places them
in the Hands of the three Storkes, the Teftator's own •ng-'^Schooi,"
Brothers, and praying, that the Court would give Di- where they
recSions for the Education of the three Infant Daugh- ^cwding to
ters in the Way and Principles of the Church of ^^^ Church
England. On the other Hand, the three Brothers and brought
brought their Bill to have the two Daughters delivered ^'^ ^!" ^^.

y D have the eld-

tO them. efl Daughter

placed out
with the other Daughters ; the three Brothers that were Prefbyterians brought their Bill to
have the two Daughters delivered to them, offering Parol Evidence that the Teftator direfted
and declared he would have his Children bred up Prefbyterians ; the Court declared no Proof
out of the Will ought to be admitted in the Cafe of a Devife of a Guardianftiip, any more
than in the Cafe of a Devife of Land.

z The

91 De Term. S. Trijtitatis, 1 7 50.

The Lord Chancellor decreed an Account of the Per-
fonal Ellate ; and in Regard the three Brothers of the
Teftator, the Storkes, had no way milbehaved them*
felves, but had a£led in every Thing for the Good and
Benefit of the Infants Eftate ; all Parties were ordered
to have their Cofts out of the faid Eftate. But though
there were Proofs in the Caufe, of Dire£lions having
been given by the Teftator, that his Children fliould be
brought up in his own Form of Reh'gion, and as
Prefbyterians ; yet the fame not being exprefled in his
Will, his Lordfliip declared. He would not go out of
the Will, nor hear any Parol Proof touching the Tefta-
tor 's Intentions how his Infant Daughters ftiould be
educated as to their Religion j faying, that Parol Proof
ought no more to be admitted in the Cafe of the Devife of
A GuardianjlA^^ than in the Cafe of a Devife of Land,
However, with Refpe£l to the eldeft Daughter, fhe
being above the Age of fixteen Years, and in London, at
the Houfe of the Teftator's Brother Samuel Storke, one
of the Guardians ; it was ordered that Ihe ftiould be
fent for immediately into Court, which being accord-
ingly done, and flie being there allied where flie de-
fired to be ; on her exprefting a Deftre to continue
with her Uncle Samuel Storke, his Lordfliip declared
(he fliould continue there if flie pleafed.

As to the other two Daughters ; though it was
prefled that the three Guardians and thofe, the Tefta-
tor's own Brothers, did delire to have thefe Children
delivered to them, and that the Court had a Power fo
to do, lince by the Guardians difagreeing, the Care
and Guardianlhip of the Infants devolved to the Court ;
[E] and though this was reprefented to have been
the Intention and earneft Defire of the Teftator, who
4 could

[E] See the Cafe of 'The Duke of Beaufort v. Berty, Vol. i. p, 703,
and that of Darcy v. Lord Holdernefs^ cited there in the Note,

De Term. S. Trinitatis, 17 30. 93

could not believe, that the fingle Guardian, the Clergy-
man would have oppofed the other three; and not-
withftandlng it was infifted, that in the Cafe of fo
great a Majority, the Court v/ould order the two
Daughters to be delivered over to the three Guardians,
to be educated as they lliould think proper, efpecially
in Regard, fince the A61 of {d) Toleration, ic is noc
unlawful to breed them Prefbyterians ; and the Inten-
tion of the Teftator in all lawful Things ought to
take Place : Yet the Lord Chancellor would do no
more than direct the Mafter to inquire, whether the
School in Hampjhire, at which the two younger Children
were placed by the Guardian, the Clergyman, was a
good and proper School for their Education ; giving
Liberty to all Parties to apply to the Court as there
iliould be Occalion.

Captain Strudmckes Cafe. ^^^^ '4-

Sir Jofeph
Jekyll, Ma-
ll^ Defendant, Captain Strudmcke, having httn rJI
committed to Newgate, as the County Gaol, for one that had
Debt, and having been fued in the Spiritual Court at^^^"^^"-

, 1 loner in

the Promotion of his Wife, Cauja Adulterii tf S^vitU ; Newgate for
in which Court there was a Sentence of Divorce a ?*''''' ^"^
Menja i^ Thoro, and a Condemnation in Cofts, for ved to the
Non-payment whereof he being excommunicated, and ^mmunfcl'-
having lince procured himfelf to be removed by Habeas ^^^-y the
Corpus into the Fleet Prifon : The Profecutor in the Spi- chancery
ritual Court applied to the Curfitor to make' out a Writ ^'i' "°' ^''-
of Excommunicato capiendo ^ dire£led to the Warden o/ntortomake

out a Writ
oi Excomm' caf to the Warden of the Fleet; but the Writ may be direfted to the Sheriff,
who may return a Non eji inventus; and on this Return, B. R, may grant an Habeas Cqt-
pus, and thereon charge him with an Excomm' cap'.

(d) I W. &M. fefiC I. cap. i8.

Vol. III. P the

^4 De Term. S. Trinitatis, 1730.

•■ — ■ —

the Fleet, to charge the Defendant Strudwicke therewith.
But the Curlitor, apprehending that it was the con-
ftant Courfe to make out this Writ of Excommunicato
capiendo to the Sheriff, and to no other Per/on, refultd
to make out the fame dire£led to the Warden of the
Fleet; wherefore, as the Dire£ling the Writ to the
Sheriff would be to no Purpofe, forafmuch as he could
not go into the Fleet Prifon to execute it, fo that here
would be a Failure of Juftice, unlefs the Writ might
be direfted to the Warden of the Fleet: For this
Reafon, Application was now made to the Court of
Chancery, for an Order to the Curfltor to make
out the Writ as delired ; inlilting, that this ought the
rather to be done, becaufe the Defendant, while he
remained a Prifoner in Newgate, the County Gaol,
might have been there charged by the Sheriff; where-
as, having by his own Artifice removed himfelf to
the Fleet, he had now endeavoured to elude the
Jultice of the Court. That the Statute of the 5 th
of Elini. cap. 23. (whereby the Writ of Excommuni-
cato capiendo that was before returnable in Chancery,
is made returnable in the King's Bench) mentions,
throughout the feveral Parts of it, the Sheriff or other
Officer to Tvhom fuch Writ {hall be direSled, or to whom
the Execution thereof JJjall appertain; which Words imply,
that the Writ way be direded to other Officers as well
as the SheriflFj and it is plain, that in fome Cafes it
cannot be dire£led to the Sheriff, as where the Sheriff
is the Perfon excommunicated ; on which Occalion it
mufl be directed to the Coroner : And by the fame
Reafon, in the prefent Cafe the Writ might (it was
faid) be dire6led to the Warden of the Fleet, both to
prevent a Failure of Juflice, and that the Party iliouIJ
not take Advantage of his own Artifice in removing
himfelf from Newgate to the Fleet.

The

De Term. S. Trinttatis, 1730. 99

The Matter of the Rolls, before whom this Matter The Court
was moved, afked whether there was any Precedent of f^^^^j^ ^""'^
a Writ of Excommunicato capiendo being dire£led to the tachments to
Warden of the Fleets To which it u^as anfwered, thatof\he/y«/"
none could be found ; but that the Court of Chancery
had often directed their Attachments to the Warden of
the Fleet to take the Prlfoners in the Fleet Prifon.

Upon which his Honour, having taken Time to con-
fiJer of It, on the Day of Motions next after the Term
declared his Opinion, that the Court of Chancery could Writ of ^r-
not order the Curfitor to direa this Writ to the War- "/vSoumiei
den of the Fleet, the fame being a Vijcomtiel Writ ; and Writ ; but
though the Words of the Statute of Elic^abeth in feveral sJe^r f/a
Parts thereof mention, the Sheriff or other Officer^ this Party, or
might be meant of Bailiffs of Liberties, or ^/)^ Corow^r, capacuited""
who in all Cafes is the proper Officer to execute Pro- ". muft be
cefs where the Sheriff is a Party, or otherwife inca- the Coroner.
pacitated: That in the County Palatine oi Durham the intheCoun-
Writs are direfled to the Chancellor of Durham, order- ^^^ ^^]X«,
ing him to command the Sheriff ; that in this Cafe Writs are
there need be no Failure of Juttice, becaufe the Writ J,e^chtn-
might be directed to the Sheriff, on whofe returning a ceiior of
iV(7» eU inventus into the King's Bench, that Court might jerlng him*^
grant an Habeas Corpus to bring up the Prifoner, and ^^ command
there charge him with an Excommunicato capiendo: But
that the Court of Chancery's granting Attachments to
the Warden of the Fleet was not a parallel Cafe, be-
caufe thofe Attachments are not returnable in the King's
Bench, but in Chancery; whereas all Writs of Excom- hWWrks of
municato capiendo muft be returnable in the King's ^■^^^"[J^'^'^"/''
Bench. Wherefore, there being no Precedent of fuch tumabie in
Writ being ever dire£led to the Warden of the Fleet, '
nor any Likelihood of a Failure of Juftice for want of
it, his Honour refufed to order the Curiitor to make out
this Writ diredled to the Warden of the Fleet.

Chefler

^6 De Term. S. Trtnitatis, 1730.

Cafe 15. Chcjler verfus Chejlcr.

Lord Chan-
cellor King, ^ -n i n ^ 1 r t

Lord Chief WiR John Chejter had two Sons, William, afterwards
>//..Ray- O Sir William Chefter, and John, now Sir jfohn Chefter;
Lord Chief Sir John Chefler the Father, on the Marriage of his el-
noWs'l ^^~ ^^ft ^^^ William, fettled Lands of 800 /. per Annum,
Mr. Jujiice Part in Poflefllon, and Part in Reverfion after his own
Death, on the faid William for Life, Remainder as to
tn^'^L Ps" thereof to the Wife of William for Life, Remain-
c. and on der to the firft, ^c. Son of the Marriage in Tail Male,
o^A !/.'^'feu Remainder to I'ruftees for 600 Years to raife Portions
ties Part of for the Daughters of the Marriage, (r/^. ) 4000/.
^I^ in Tail; amongft ail the Daughters, Remainder to the faid Wil-
and A. bdng //^^ g^d the Hcirs Male of his Body by any Wife, Re-
oftheRever- maindcr to Sir John Chefter the Father in Fee. After-
f.on of thefe ^^^^^ds Sir Jolm Chefler the Father fettled other Lands

Lands, and J J

of other ot near 1 000 /. per Annum, on his younger Son, now
PoSbffion, Sir John Chefler, for Life, Remainder to his firft, iffc.
devifes all Sou in Tail Male fucceflively ; and being feifed in Fee
Heredita- ^^ Lauds iu PofTelfion of about 400 /. per Annum, in
mcts not 0- Littleton, Marfton and Milbrooke, by his Will devifed all
\i^fettied or hJs Lands, Tenements and Hereditaments in thefe three
difpofed of; Towns of Littlctort, Marflon and Milbrooke, or elfewhere,
fion in Fee not by him formerly fettled, or thereby by him otherrvife
wiiipafs. 4ifpoj^(i of, to Truftees for the Term of 100 Years,
upon the Trufts therein mentioned. Remainder to his
faid younger Son John Chefter in Fee. The Truft of the
Term of 100 Years was, to raife Money out of the
yearly Rents and Profits of the PremiiTes comprifed in
the faid Term, to pay the Teftator's Debts and Lega-
cies, in Aid of his Perfonal Eftate. The Teftator died,
leaving an eldeft Son William, afterwards Sir William
Chefler, and a younger Son John, now Sir John Chefler.
About a Year after the Death of the Teftator, Sir Wil-
liam

De Term. S. Trinitatis, 1 7 50. 97

lUm Chejler died, leaving fix Daughters, (the now Plain-
tiffs) and leaving no Iiriie Male.

The Queftion before the Court was, whether this
remote Reverfion, expeftant upon the feveral Eftates
created by the faid Settlement on the Teftator's Son
William-, iTiould be conftrued to have palled by this
Will ? If it did, then it would belong to the Defendant
Sir John Chefier; if not, the fame would defcend to
the fix Daughters of Sir William Chefier, as Heirs at
Law of Sir John the Father, and Sir William his eldeft
Son. And now this Cafe was argued before the Lord
Chancellor, the Lord Chief Juftice Raymond, the Lord
Chief Baron Reynolds, and Mr. Jullice Price, whom the
Lord Chancellor called to his Alhftance.

And by thofe who argued for the Plaintiffs, the Heirs
at Law, it was inlifted, that according to the Words of
the Will, according to the Intention, and the feveral
Circumftances manifefting fuch Intention, it could not:
be reafonably thought, that the Teftator meant to pafs
this remote Reverlion in Fee by his Will ; that as the
Plaintiffs were Heirs at Law, they were to be favoured,
and not to be difinherited by doubtful Words, efpecially
as they were not endeavouring by this Suit to ftrip the
Honour ; fince the better Half of the Eftate had been
fettled, by Sir John Chefier the Father, upon the Defen-
dant his younger Son, in his Life-Time, in Poffellion
and Reverfion ; but that the Daughters of Sir William
would not be provided for according to their Qtiality,
if they had only 4000/. among fix of them, and the
additional Lands, which they were intitled to from
their Father Sir William, were but of fmall Value :
That the Queftion was not, whether Sir John Chefier
had it in his Power to devife this Reverfion in Fee;
for it was plain he had ; but whether, in this Cafe, it
was his Intention to pafs it ; and here it was faid to
Vol. III. Q^ , appear

^8 De Term. S. Trinitatis, 1750.

appear plainly not to have been his Intention ; for that
if he had really intended to devife this Reverfion in
Fee, he would have mentioned it, as he had done other
Lands of lefs Value. He had devifed all his Lands in
the three Towns of Littleton^ Marflon and Mllbrooke;
and why not in the other Towns, where the Lands
were of greater Value ? That it was true, in this devl-
iing Claule the Teftator had added the Vs^ord elfewhere,
(the Devife being of all his Lands, Tenements and He-
reditaments in thefe three Towns, and elfen-herc ;) but
that this loofe,. general Expreflion, when the Telia-
tor had before delcended to Particulars, Ihould never
take in Lands of greater Value than the Particulars be-
fore exprefly mentioned ; for which was cited the Cafe
of Wynn and Littleton, i Vern. 3. and 2 Vent. 351.
where the fame Cafe is reported by the Name of Sir
Thomas Littletons Cafe, and is as follows ; A Man de-
viled to J. S. and his Heirs, all his Lands in Denbigh-
jlnre, Montgomery/hire and Flint/hire, or elfervhere within
the Dominion of Wales ; and the Teftator was feifed in
Fee, and in Pofleflion, of Lands in other Counties
within the Dominion of Wales that were in Mortgage
to him, and thefe mortgaged Lands were of greater
Value than the other Lands ; whereupon it was declared
to be the then Lord Chancellor's Opinion, and decreed,
that after the Teifator in that Cafe had defcended to
Particulars, the Word elfervhere, which is like an Et-
c^etera, and comes in ciirrente calarno, Ihould not com-
prehend Lands of greater Value than thofe which had
been particularly mentioned.

But that, taking the Word elfewherc in the moft ex-
fenfive Signification, yet that was reftrained by the fub-
fequent Words not by him formerly fettled, or otherrpife
difpofed of', and then the Devife would run thus: " I
*' deviie all my Lands and Hereditaments in Littleton,
*' Marflon and Milbrooke, . and elfewhere, not by me
I " formerly

De Term. S. Trinitatis, 1 7 30. 5*9

" formerly fettled." Now thefe Words formerly fettledy
tnuft be reftriflive, and be intended to prevent fome
Lands from pafling by the Will, which, were it not
for this Claufe, would have been included therein ;
and confequently will prevent the Palling of this Re-
verfion in Fee. For furely, if the Teftator, or any one
living, were allied, whether the Lands in Sir IViUiam
Chefters Settlement were not fettled, the Teftator and
all Mankind muft anfwer in the Affirmative ; they were
fettled on Sir William Chefters Marriage, and if fo,
were not to pafs by this Will ; for only the Lands not
formerly fettled by the Teftator were to pafs by this
Will, and though the Reverjion in Fee was not fettled,
yet the Lands rvere, and therefore muft not pafs.

That fuppofe the Words of the Devife were, " I
" devife all my Lands, excepting the Lands fettled',^
this had been the fame as if all the Lands mentioned
in the Settlement made on the Marriage of Sir William^
had been particularized in this Exception ; and if fo,
there had been no Colour to think that the Lands ex-
cepted fiiould pafs. And for this was cited, as an ex-
prefs Authority, the Cafe of Hyly v. Hyly, 3 Mod. 22^,
Alfo, if the Teftator had devifed all his Lands fettled
on his Son William on his Marriage, this would cer-
tainly have paifed the Reverfion of the Lands thus
fettled ; and it would be very ftrange, that the Devife
of the Land not fettled, and the Devife of the Lands
fettled, Ihould receive the fame Conftru£l:ion, though
they feem to be diametrically oppoiite.

That the Inducement and Occafign of the Teftator's
making this Devife was a plain Indication of his Mean-
ing, and ftiewed he did not intend to pafs the Land
fettled on his Son William ; for the Devife of all thefe
Lands was, to Truftees for 1 QO Years, in Truft, out of
the annual Profits to pay his (the Teftator's) Debts,

Remainder

6o De Term. S. Trinitatis, 1730.

Remainder to the prefent Sir John Chefler in Fee.
Now, nothing could be intended to be comprifed in
this Remainder in Fee to the prefent Sir John Chefter,
but what was comprehended in the Term of lOO
Years, and that could not reafonably be fuppofed to
include the Lands comprifed in the before mentioned
Term of 600 Years ; befides, all thefe Lands in Sir
William Chefters Settlement were limited to Sir William
in Tail Male General ; namely, in Default of Sons of
that Marriage, to him and the Heirs Male of his Body ;
and it was not reafonable to make the Reverfion in Fee
a Fund to pay Debts, which was not fo much as Ajfets
for that Purpofe.

Further : The Truft is to pay Debts out of the an-
nual Rents and Profits, fo that the Eftate is not to be
fold, but only the annual Profits to be applied : But
furely the Eftate fettled on the firft and other Sons of
Sir William^ whofe Lady was every Year delivered of a
Child, till within a Year of the Death of the Teftator
Sir John Chefler, could not afford an yearly Profit to-
wards finking the Debt. That as to the Cafe of Strode
V. Lady Rujfel, 2 Fern. 6i\. (and which it was ap-
prehended might be obje£led) where one devifed all his
Lands and Hereditaments out of Settlement to his Ne-
phew Strode^ he taking upon himfelf the Name of Litton ;
there, the Condition of taking upon himfelf the Name,
ftiewed, he was to continue the Family, and therefore
to have the Family Eftate, and confequently the Re-
verfion in Fee of what was fettled. Again, what
further diftinguifhed the principal Cafe from that of
Strode v. Lady Ruffel, and the feveral other Cafes in the
Books of that Nature, was, that in the principal Cafe
there was an Eftate-tail in Being in a third Perfon, and
not in the Teftator, by which Means the Reverfion in
Fee not being Affets, was of no Value in the Eftima-
tion of Law, and therefore ought not to pafs by the
2 general

De Term. S. Trimtatis, 1 7 50. 61

general Words of all the Teftator's Lands and Heredita-
ments not otherrpjje fettled.

Laftly, it was obferv^ed, that a Field called Berry
Field, wherein were the Conduit and Water-pipes which
fupplied the Capital MelTuage with Water, (and which
Capital MeffLiage was fettled on the Marriage of the
eldeft Son William Chefler) had by this Will of Sir John
Chefier, been devifed to the eldeft Son William and his
Heirs ; from whence it was faid to be natural to infer,
that the Fee-fimple of the Capital Mejfuage, and the Fee-
fimple of the Field were not intended to be parted ;
confequently that the Reverfion in Fee of the former
was not intended to be difpofed of from the Heir at
Law, to the prefent Sir John Chefler*

But the Lord Chancellor and the Judges Afliftants, One devifes
were all clearly of Opinion againft the Plaintiffs. They f^ J'^5^",J
admitted that the Heir is the univerfal Reprefentative ^- ^^^ #-
of his Anceftor, and by doubtful Words ought not tOTefbior has
be dilinherited : But faid, the Qtieftion here was, whe- ^anJs in A.
ther thefe Words were doubtful ? they thought not ; and Lands
that the Word elfewhere was the fame as if the Teftator ''^ '"""^i',

r» • greater V a—

had faid, He devifed all his Lands in the three Toxvns par- lue in an-
ticularly mentioned, or in any other Place whatfoever; and^^''^^^""""
that there was no Reafon to reje£l: fo plain, proper, and Lands in the
intelligible a Word in a Will as this, which probably ^^'fl^.fpX
was inferted to avoid the Prolixity of naming the fe- by the Word
veral other Towns in which the PremiiTes lay, it being ^•''^^""*
a great Eftate, and difficult, at the Time of making
the Will, and when the Teftator might be fuppofed
to have been inops Confilii and without his Writings, to
particularize all the Towns. That the Word elfervhere
was therefore the moft fignificant, fenfible and compre-
henfive Word that could be ufed for that Purpofe,
equivalent to the naming of them ; and it would be
of the moft dangerous Confequence, under Pretence of
Vol. IIL R con-

6z De Term. S. Trlnitatis, 1730.

conftrulng this Will, and affifting the Teftator's Inten-
tions, to reje£l a Word fo material to be made life of,
both for the fake of Brevity and Security.

That as to the Cafe of Sir Thomas Littleton, cited
on the other Side from Vern. and Vent, the Qiieftion
there principally depended on the PremilTes in Con-
troverfy, being a Mortgage. Now, an Eftate though
mortgaged, continues flill to be the Eftate of the
Mortgagor, fubje6l to the Payment of the Pledge
which is upon it ; and the Mortgagee's Right is only
to the Money due upon the Land, not to the Land
itfelf; for which Reafon, till the Mortgage is fore-
clofed, it is not properly the Mortgagee's Land, or to
pafs as fuch, by the Devife of all his Lands, if the
Teftator has other Lands to fatisfy the Words of the
Will ; and in the Report of this Cafe in Ventris, it is
faid, there were jome other Circumflances which fliewed
the Teftator did not intend to pafs the mortgaged Pre-
mifles, and therefore the Force of that Authority is
out of the Cafe. That if the Devife had been of all
the Teftator's Lands and Hereditaments, (without fay-
ing more) and then had limited the Premiftes to the
Truftees for lOO Years, Remainder to Sir John Chefler
in Fee, this had been good ; the Words Lands and Here-
ditaments would have paffed the Reveriion in Fee in the
Lands ; and the Words not otherrpije by me fettled,
could have excepted only that Eftate in the Lands which
was otherwife before fettled : Whereas it is plain that
the Reverfion in Fee was not fettled, and therefore
would pafs by the Will ; the Land can no further be
faid to be fettled, than the Eftates therein are ex-
haufled : But the Reverfion in Fee of this Land not
being fettled, the Land, as to fuch Reverfion, is not
The fame fettled J fo that the fame Lands in feveral Refpe£ls

Lands may

be faid to be fettled and unfettled, {viz.) fettled as far as the Ufe thereof is limited, and un-

fetded as to the Reverfion,

4 • may

De Term. S, Trinitatis, 1730. 63

may be fald to be fettled and iinfettled, (w;^.) with
Regard to all the Eftates exhaufted, and of which par-
ticular Eftates are limited, the Land, as to thefe Eftates,
may well be faid to be fettled : Though in Refpe£l of
the Reverfion in Fee, it may properly be faid the Land
is not fettled. That it was material, that this Rever-
lion in Fee which remains unfettled, is Part of the old
Eftate ; fo that if the Perfon making this Settlement The Reyer-
was feifed in Fee as Heir on the Part of the Mother, Part of the '^
he fhall flill be feifed of this Reverfion as of his old ^'^^ ^jhte ;
Eftate, and as Heir of the Mother's Side, as before. In Owner had
like Manner, if the Lands were before Gavelkind, or ^cir^TV*
Borough Engli/h, this Reverfion, as Part of the old Mother, the
Eftate, ihall defcend in Gavelkind and Borough Englifi as JXiSIL
before : Wherefore, with Regard to this Reverfion, the the Heir on
Land is with ftri£l: Propriety faid to be unfettled, and gj^^ . ''f^Yf j^
the Owner feifed thereof as Part of his old Eftate, hiswas5«m/^*
old Property and Dominion. Befides, nothing can be aJveuli^^ it
faid to be fettled, but what the Party who made the ^^ii defcend
Settlement has not a Power over; whereas the Rever- ^'^'^°'^ '""
iion in Fee continues in the Power of him from whom
the Eftate firft moved, and therefore cannot be faid to
be fettled.

The Lord Chief Baron obferved, that he loo"ked
upon the Cafe of [RJ Wheeler verfus Walrond to have
been the firft Cafe of this Nature, which had been
adjudged, and is in Aliens Reports 28. Next came
the Cafe of Lidcot verfus Willovcs, which though ad-
judged otherwife in the Reign of King James the Se-
cond, and about the fame Time with that of Hyly ver-
fus Hyly, yet afterwards, in the Reign of King William,

Error

[E] Tiie Reporter here remarks, that in the Cafe of Ivy verfus hy,
heard at the Rolls, Trinity 173 1, this Cafe ot Wheeler ■vtxin^ JValrond
being cited, his Honour fent for the Record ; from whence it appeared
to have been found by the Special Verdift, that, unlefs the Reverfion
in Fee paffed by the Will, there would not be fufficienc to pay the Te-
ftator's Debts j which Reafon is not taken Notice of in the Book.

64 De Term. S. Trinitatis, 1750.

Error was brought of the Judgment in the Cafe of
Lidcot verfus Willows, and the Judgment reverfed. See
Carthexp 50. 3 Mod. ii^. alfo 2 Vent. 282. So that
the Cafe of Hyly verfus Hyly may well be faid not to
be Law, it being adjudged the fame Way, and about
the fame Time, with that of Lidcot and Willows ; and.
as the Judgment of the latter was reverfed upon Error,
fo alfo would the former have been, had Error been
brought thereof; and that, agreeable to the Cafe of
Lidcot and Willows^ was that of Cook verfus Genard,
I Lev. 212. And the Court laid great Strefs on the
Cafe of Strode verfus Lady Rujfell, which was affirmed
in the Hotife of Lords, and as ftrong as the principal
Cafe, being a Devife of all the Teftator's Land out of
Settlement ; which Words were determined to pafs the
Reverjion in Fee of the Lands in Settlement ; obferving,
that this Refolution bound them down in the principal
Cafe ; and that the Cafe of a Son inheriting the Ho-
nour muft be as ftrong as that of a Sifter's Son, who in
the abovementioned Cafe was the Devifee of Sir William
Litton.

And as to what had been inferred from Sir John
Chefier the Teftator's having devifed Berry Field to Wil-
liam Chefler and his Heirs, (vitj) that the faid Field
and the Capital Meftuage were intended to go together,
and not to be parted ; the Court took Notice, this was
but a flight Circumftance, and that if there was any
Strength in it, then the Field fliould have been de-
vifed to the fame Ufes and to the fame Eftates, as
the Capital MefTuage was limited by the Settlement
made on the faid William CJjefiers Marriage. Where-
upon the Decree was in Favour of Sir John Chefler the
Defendant, by the unanimous Opinion of the Lord
Chancellor, Lord Chief Juft ice, Lord Chief Baron and
Mr. Juftice Price.
I

Barlonf

De Term. S. Trim tat is, 1730. 6^

Barloiv verfus Bateman. ^^^^'^-

Sir Jofeph
Jekyll, Ma'

TV/fR. Barlorv, of Wales, gave an additional Legacy ofipr'of the
^ -■■ 1000/. to his Daughter, upon Condition that ftie " ^'
married a Man who bore the Name and Arms of Bar- Leracy'to a
loxQ ; and In Cafe the Daughter married one who fhould Feme on
not bear the Name and Arms of Barlorp, then the Te- ^e marr" a
ftator devifed the lOOoA to the Plaintiff. The Daugh- Manofthe
ter married the Defendant, whofe Name was Bateman ; Barlow, a.
but about three Weeks before the Marriage he called ^^^^ "P°"
himfelf Barlow ; and it was faid, that it was ufual to Name of
have an A£1 of Parliament to take a new Name, which -?'"'^^''' ^nd

the r eme

had not been done in the principal Cafe. Befides, it marries him;
was the Intention of the Teftator, that the Perfon f^J^'^'^^J^^"
who fiiould marry his Daughter, and be intitled to this the Condi-
additlonal Legacy, fhould be one of his Family, and Equity will
have originally borne that Name ; whereas the Defen- "o* decree

1 r-r-iM \ • r ' 1 !!• the Hufband

dant was oi a Family much mterior, and would, in to retain that
all Probability, as foon as he fiiould have received the N^*"^-
Legacy, take again his true Name of Bateman ; where-
fore the Plaintiff claimed the i coo /.

Mafler of the Rolls: The Plaintiff would intitle him-
felf to this Legacy as a Devlfe over, on a Suppoficion
that the Daughter has forfeited it ; but I am of Opi- Anciently
nion, that the Condition is complied with, by the De- SbvThcL
fendant's taking the Name of Barlow : Surnames are Chrifti'an

. r « • • r • • m* Names, and

not ot very great Antiquity; tor in ancient Times the Places of
the Appellations of Perfons were by their Chrlftian their Births
Names and the Places of their Habitation j as Thomas d. &c.
of Dale, {vin^) the Place where he lived. I am fatif- One may of
fiedthe Ufage of paffing Ads of Parliament for the '^2 a"'
Taking upon one a Surname, is but modern ; and that Aa of Par-
any one may take upon him what Surname, and as change iiis
many Surnames as he pleafes, without an a61 of Par- Nf'"^' ^"^

\T TTT r. 1- take a new

VOL. III. S liament. one.

A. treats for
the Marriage
of his Son

6G De Term. S. Trinitatis, 1730.

liament. Whereupon, though the Plaintiff's Counfel
delired the Court would direft, that the Defendant
ihould ever after retain the Surname of Barlorv, from
an Apprehenfion that he would, when he ftiould have
received the Legacy, refume his old Name of Bateman j
yet his Honour refufed to make any fuch Decree.

c»f= -7 JoJm Roberts, Efq; and Ca-\n..-rr
V^i.. tharine his Wife, jl'lamtitts.

fer of the

^"'- David Roberts, Efq\ the Son\j^ r a^ ^
of the Plaintiff Roberts, pefendant.

Rsr' I ''HE Bill was to be relietred againft an underhand

^ _|f^ -■- Bond, dated the firft of February 1728, gained

2nd in the {jy [he Defendant, David Roberts the Son, from the
onth^Son Plaintiff his Father, in the Penalty of 2000/. for the
there is a Payment of 1000/. within fourteen Days after the

Power refer- ^^ ■' r i r, j

ved to the Date 01 the Bond.

Father, to

jointure any Wife whom he fhould marr}', in 200 /. per jfnmm, paying looo/. to the Son.
The Father treating about marrying a fecond Wife, the Son agrees with the fecond Wife's
Relations to releafe the looo/. and does releafe it; but takes a private Bond from the Fa-
ther for the Payment of this looo/; Equity will not fet afide this Bond, becaufe it would
be injurious to the firft Marriage, which being prior in Time, is to be preferred.

The Equity was, that the Bond was obtained by
the Defendant the Son from the Plaintiff John Roberts
the Father, in Fraud of the Agreement made on the
Marriage of the Plaintiff John Roberts the Father with
the other Plaintiff Catharine his fecond Wife, and with-
out the Privity of her, or any of her Relations.

The Plaintiff John Roberts s firfi Wife, who was the
Defendant's Mother, was a confiderable Heirefs, and
died leaving feveral Children by the Plaintiff. I'he De-
fendant David Roberts was the fecond Son ; for whom
1 the

De Term, S. Trinitatis, 1730. 67

the Plaintiff his Father bought a Commiffion of Lieu-
tenancy in a Company of Dragoons ; after which the
eldeft Son dying, the Defendant David Roberts the Son
intermarried with the Sifter of Mr. Metier, late one
of the Matters of the Court of Chancery, who had a
Portion of 4000 /. and (inter at) the Plaintiff the Fa-
ther, who was Tenant by the Curtefy of all his Wife's
Eftate, joined in fettling a good Part of this Eftate on
his Son the Defendant David Roberts in Poffeffion, and

on his Wife — Meller ; the Relidue of the Eftate

was limited to John Roberts the Father for Life, Re-
mainder to David Roberts the Son, with a Power xq^
(erved to John Roberts the Father to fettle 200/. per
Annum, (Part of the Premiffes limited to him for Life)
upon any Wife which the Plaintiff Roberts the Father
fiiould marry, he the faid Roberts the Father paying,
or fecuring, to the good Liking of the Defendant Ro-
hens the Son, 1000/.

The Power in the Settlement was penned in a ftrift
Manner, by way of Condition Precedent, {vii!^) a Pro-
vifo, that in Cafe the Plaintiff' Roberts the Father
fhould pay to the Defendant Roberts the Son, or to his
good Liking fecure to the faid Roberts the Son, 1000 /.
it Ihould be lawful for Roberts the Father to limit to
any Wife that he fhould marry. Lands of the Value of
200/. per Annum. There was alfo a Power for the
Defendant Roberts the Son to limit Lands of 400 /. per
Annum to any Wife that the Son Ihould thereafter
marry.

Afterwards the Plaintiff Roberts the Father entered
into a Treaty of Marriage with the Plaintiff Catharine
Barker, the Sifter of George Barker of Chifmck, Efq;
who had 3000/. Portion ; and thereupon the Plaintiff
Roberts the Father propofed to fettle thefe Premiffes of
200/. per Annum upon the faid Catharine his intended

Wife ;

68 De Term. S. Trinitatis, 1730.

wife ; but then it appearing, that the Plaintiff Roberts
the Father was to pay i ooo /. to his Son David Ro-
hens, upon his (the Father's) making this Jointure ;
and that the Payment thereof would very much
ftraighten the Plaintiff Roberts the Father ; unlefs this
1000/. was released, the laid Plaintiff" Catharine and
her Relations would not confent to the Marriage.

Upon which the Plaintiff" Roberts the Father apply-
ing to his Son, and informing him where the Marriage
Treaty ftuck, (namely, at the Father's paying this
1 000 /. to the Son) and that it could not proceed,
unlefs the Son would releafe the fame ; the Defendant
Roberts the Son did agree to releafe this looo /. in
Confequence whereof he wrote feveral Letters to Ro-
berts the Father, intimating that he would releafe the
1000/. But it did not appear, that the Son's Wife,
or any of her Relations, were contenting to fuch Re-
leafe. However, the Plaintiff" the Father introduced
his Son into Mr. Barker's Company, on which Occafion
the Son expreffed himfelf pleafed with the intended
Match ; but not long after, the Defendant Roberts the
Son began to recede from his Promile, and infiffed
with his Father, that if he, the Son, releafed this
1000/. to the Father, then the Father Ihould give
him, the Son, a Bond for the Payment thereof within
a Ihort Time after the Father's Marriage ; to which
the Father, being very much fet upon this fecond Alar-
riage, did at length confent, (vi^.) to give a Bond to
the Son for the Payment of the loco/. upon the Son's
giving a Releafe to the Father: And the Bond which
the Father was to give to the Son, was, to pay the
loco/. to the Son within a Fortnight after the Fa-
ther's Marriage. But this Agreement for the Father's
giving the faid Bond to the Son, was without the Pri-
vity of the faid Catharine Barker the intended Wife, or
any of her Relations.

1 Thereupon

De Term. S, Trinitatis, 1 7 30. 69

Thereupon a Releafe was prepared for this Purpofe,
which Roberts the Son did execute, and the Father pri-
vately gave his Bond for the Payment of looo /. to
his Son ; but the Releafe of the Son not being thought
effe£lual by the Friends of the faid Catharine Barker,
another Releafe was prepared for him to execute, which
accordingly Roberts the Son did execute for this i ooo /.
but a Day or two before the Marriage ; and the Fa-
ther did about the fame Time, or foon after, execute
a new Bond to the Son ; but this Bond, as the former,
was given by Roberts the Father without the Privity
of Catharine his intended Wife, or any of her Rela-
tions.

The Marriage between Roberts the Father and the
faid Catharine took Efte£l:, and the Portion of 3000/.
was paid. Afterwards the Defendant Roberts the Son
fued his Father on this Bond for 1000/. upon which
the Father Roberts brought a Bill in Equity againft his
Son, and on Motion before the Mafter of the Rolls,
had an Injundlion on the Merits : And now between
the Seals after Trinity Term, the Caufe came on to be
heard at the Rolls. When

On Behalf of the Plaintiffs it was infilled, that it was
plain this Bond for the 1 000 /. in Qiieftion was ob-
tained from the Plaintiff Roberts the Father without
the Privity of the Plaintiff Catharine the Wife, or any
of her Relations ; that it feemed as plain, that neither
Catharine the Wife, nor any of her Relations, would
have confented to the Match, had they known of this
underhand Bond being given by the Plaintiff Roberts
the Father to the Defendant his Son ; which appeared
ftill more evidently by the great Caution made ufe of
by the Plaintiff Catharine and her Relations, in except-

VoL. III. T ing

70 De Term. S. Trinitatis, 1730.

ing to the firft Releafe executed by the Defendant Ro'
hens, as not lufficlent and efFeflual ; and in infiftlng
upon another Releafe wdiich was thought more effec-
tual, and had been executed by the Defendant Roberts
the Son ; that whenever any of thefe underhand Agree-
ments on Marriage came in Judgment, the Court con-
ftantly declared an Abhorrence of them, as being in
Fraud of the Marriage, and generally tending to make
the Marriage unhappy ; and that every Thing which
had, or feemed likely to have, thofe Effe£ls, ought
highly to be difcouraged.

That for this Reafon Equity is careful that the open
and publick Contrail made upon the Marriage fliould
take Place, and will not fuffer that to be infringed by
any clandeftine and private Agreement whatever ; nay,
fo odious in a Court of Equity are all fecret and
underhand Dealings, as to intltle to Relief even the
Hulband himfelf, though Party to the Fraud and con-
fenting to the Agreement : But in the principal Cafe,
the Bond given by the Hufband for the Payment of the
Money, did in Confequence affeil the Wife, i oco /.
was a confiderable Sum of Money, for which, when the
Hufband fhould be called upon, he mult be difabled
thereby from maintaining his Wife, at leafl in fo com-
fortable a Manner as otherwife he might, and probably
would have done, and therefore it was proper the Wife
fhould be, as here fhe was, a Co-plaintiff, in order
to conteft and fet afide the Bond.

That it was true, the Bond in Queftion was only for
I oco/. but it might have been for io,occ/. and if
the prefent Bond for i ooo /. were allow'd to be good,
by the fame Reafon a Bond for io,cco/. had been
good alfo, which muft utterly have incapacitated the
Plaintiff Roberts from maintaining his Wife, who muft

in
I

De Term. S.Trinitatis, 1730. 71

in fuch Cafe have gone back to, and been a clog upon,
her Relations, although ftie had brought fo conliderable
a Portion as 3 000 /.

It was admitted to be in Proof, that the Plaintiff
Roberts the Father did in all outward Appearance exe-
cute this Bond freely. But this was not at all material ;
for ftill it was a clandeftine Bond, given without the
Privity of the Wife or her Relations, and would, as
was before obferved, if difcovered, in all Probability,
have prevented the Marriage.

That innumerable Precedents might be alledged,
where the Hufband not only was pajjive in confenting
to the underhand Agreement, but had alfo been a^ive
in encouraging it ; and yet had been relieved againft
his own A£1, Fraud and Contrivance; which doubtlefs
was done in Favour to the Wife, and to the End her
Hufband might not thereby be difabled from the better
maintaining her, who in the prefent Cafe was not pre-
tended to have known any Thing of the Bond, but to
have been intirely innocent, and free from the leaft Im-
putation of Fraud.

And as to the Jointure made upon the Wife in this
Cafe, it was faid to be a hard Bargain, being but a
Jointure of zoo L per Annum for 3000/. Portion:
Whereas it is ufual to fettle 100/. per Annum for every
1 000/. and this 200/. per Annum lay at a great di-
ftance, in Wales, without any the leaft Provifion for the
Children of the Marriage.

That with Regard to the Father's Power referved to
him to make a Jointure, it was obfervable, he was
made to pay 1 000 /. for it, for a Power to limit only
an Eftate for Life, and this in Reverlion too, after an-
other Life : So that if Roberts the Father fhould happen

71 De Term. S. Trinitatis, 1730.

to furvive his Wife, it would have been paid for no-
thing ; that it was at the Rate of five Years Purchafe,
which was holding him to rigorous Terms, efpecially
when at the fame Time the Son was intruded with a
Power of making double that Jointure, being allowed
to make a Jointure ot ^oo/. -per Annum, without pay-
ing one Farthing for it.

It was admitted this was a Bond given by the
Father to the Son, not by the Son to the Father ;
fo that the ufual Argument of its having been given
by CompuHion or Coercion might feem not applicable
in this Cafe : But ftill the Fraud was not the lefs upon
the Plaintiff Catharine, who was intirely innocent, and
kept in Ignorance of it. The Wife was equally a
Sufferer, and her Relations impofed on to as great a
degree, as if Ihe had been the Wife of the Son, not
of the Father. And as to Authorities, they were very
itrong, as in i Vern. ^48. Redman ?> Cafe; fo i Vern.
475. Gales verfus Lindo ; in which Cafes the Wife as
well as the Hufband was Particeps Criminis, and yet re-
lieved. The fame in (e) Tiirton verfus Benjon, 2 Vern.
764. Wherefore it was prayed, that as the Court for^
merly ordered an Injun6lion till the Hearing, fo they
would now grant a perpetual Injun6lion.

On the other Side it was urged, that in the prin-
cipal Cafe the Plaintiff Roberts the Father was not only
Party to what was here called the Fraud, in giving
this underhand Bond for the Payment of the 1 000 /.
but that, upon the Defendant Roberts the Son's Mar-
riage, when he referved to himfelf a Power to make a
Jointure of 200/. to any Wife whom he Ihould there-
after marry, he himfelf made a private Agreement
with his Son, that the latter Ihould releafe this 1000/.
to him ; and the very Bill lets forth, that the Son the
4 Defendant

(e) See Vol i. 49 S. where there is a Note referring to this Cafe.

De Term. S. Trinitatis, 1730. 75

Defendant Roberts^ at the Time when he made his
Marriage Settlement, did declare before feveral Perfons,
that he vv^ould not inlift upon fuch Claim, nor expe6l:
Payment of the looo /.

So that all that could be alledged in Favour of the
fecond Wife of the Plaintiff Roberts the Father, might
likewile be faid on Behalf of the Wife of the Defen-
dant Roberts the Son ; and if it ihould be iniifted to be
injurious to the Plaintiff Catharine, the fecond Wife of
the Father, that this private Agreement fhould take
Place; it muft be allowed to be no lefs prejudicial to
the Wife of the Son, that the private underhand A-
greement for the releafing, or not infifting on the Pay-
ment of the 1000/. on the Father's making a Join-
ture on the fecond Wife, fhould hold good ; and it was
plain that the Agreement on the Marriage of the Son,
that the Father, if he fettled a Jointure on a fecond
Wife, fhould pay lOOO/. was made on a valuable
Confideration, and with a View to prevent the Fa-
ther's marrying again. Then, if the Plaintiff Roberts
the Father, had not an undoubted Equity on his Side,
and the Law fhould be in Favour of the Defendant
Roberts the Son, (as clearly it was, the Bond being
good at Lawj the Son's Bond mull: prevail.

That as it appeared from the Son's Settlement, that
this Provifion was made at the Inrtance of the firft
Wife's Friends, that, if the Father married again, he
Ihould, on his making a Jointure on a fecond Wife, pay
1000/. to the Son; the fecond Wife or her Friends
ought to have applied to the Relations and Truflees
under the firfl Settlement, and to have given them
Notice of this intended Releafe of the i ooo /. they
being in fome Meafure, in Equity, interefted therein.

Vol. III. U [H

ere

74 ^^ Term, S. Trinitatis, 1730.

[Here the Court propofed it to the Plaintiff's Counfel,
whether they had known or could cite any Precedent of
an underhand Agreement to give a Bond on a Mar-
riage being fet aiide, which when done, would be in-
jurious to a former Agreement made upon a valuable
Confideratlon ?

To which it was anfwered, that whatever Agree-
ment or Promife the Son might make to the Father
of his not iniifting to be paid this i ooo /. on the
Father's fecond Marriage, yet it did not appear that
the Father ever required a Bond or Covenant from
the Son to oblige him to it ; and as to any verbal
Agreement to that Purpofe, fuppoiing there were any
fuch, the Son muft know it would not be binding ; and
it would be hard that this Agreement for the Father's
giving a Bond to pay this looo I to the Son (which
was plainly an underhand Bond) fhould be binding to
the Prejudice of the Father's fecond Wife, who brought
a good Portion, and was at leaft herfelf innocent of any
Fraud, whatever Imputation of that Kind might lie
on the Hufband.]

Mafier of the Rolls : It is moft true that Equity
does abhor all underhand Agreements in Cafes of Mar-
riage ; and perhaps, this may be the only Inilance in
Equity, where a Perfon, though Particeps Criminis, fhall
yet be allowed to avoid his own a61s. Marriages
ought to be encouraged, to which End, the open and
publick Agreements, on Marriage Treaties fhould be fup-
ported and made good. It is not ufual in Cafes of this
Nature, for the Wife to be made a Co-plaintiff with
the Hufhand, in order to avoid the Agreement, but the
Hufband has been relieved on a Bill brought by him
alone. And therefore, I do not think that the Wife's
joining in this Bill, at all alters the Cafe." Neither
I does

De Term. S. Trinitatis, 1730. 7?

does it make any Difference, that the Father feeks here
to be relieved againft the Bond. No Evidence has been
given of his having made ufe of his Paternal Autho-
rity, and the Father is as much at Liberty to marry
again as the Son.

But what I take to be material is, that whatever
Arguments can be made ufe of in Favour of the Plain-
tiff Catharine, the Father's fecond Wife, or of her Huf-
band, to prove that the Father ought to be difcharged
of the Bond for Payment of the i ooo /. the very fame
Arguments may be urged on Behalf of the Son and his
Wife, to prove that it ought to be paid. Thus fup-
pofing it to be an Hardlhip upon the Father's fecond
Wife, that her Hufband Qiould be forced to pay this
1000 /. in Breach of the publick and open Agreement
made by the Son ; is it not equally an Hardibip upon
the Son's Wife, and as much a Violation of the open
and fair Agreement made on her Marriage, that the
1000 /. fhould not be paid upon the Father's, making a
fecond Jointure ? The Confequence of which will be,
that, as the Agreement on the Son's Marriage was the
frfl, it ought to have the Preference, ^i prior eft in
Tempore, potior eft in Jure.

Further : On the Face of the Bill it is alledged, that
the Son on his Marriage, and when his Father agreed
to pay the looo/. on his making a Jointure to a fe-
cond Wife, engaged not to infift on, or expeft, the
Payment thereof; which fhews it was intended as a
Fraud upon the Son's Wife, or her Relations ; and the
Father's Agreeing to pay the i ooo /. on fuch Contin-
gency, might be fome Inducement to the Son's Wife
and her Relations to come into the Match. But if this
had not been charged in the Bill, it ftlll appears on the
Merits, that the Defendant Roberts the Son and his
W'ife are Purchafers of the lOoo/. in Cafe of the Fa-
ther's

7<5 De Term. S. Trimtatis, 1750.

ther's Marrylrg again and making fuch Jointure, as he
has done. Wherefore, lince the Payment of this looo/.
by Roberts the Father, may as much contribute to the
comforcable Subfiftence of Roberts the Son and his Wife,
as the Non-payment of it may conduce to the comfort-
able Living of the Father and his Wife ; and as by Means
of this Bond, Roberts the Son has the Law on his Side,
I think the Bond muft be paid, and the only Relief I
can give the Father is, to award a perpetual lnjun£lion,
upon Payment of Principal, Litereil and Cofts.

In this Cafe the Mafter of the Rolls obferved, that
the Pra£llce of the Court, in relieving againft all Mar-
riage-Brocage Bonds, plainly (hewed it to be their Opi-
nion, that every Contrail relating to Marriage, ought
to be free and open ; and he took Notice, that in the
Cafe of if) Potter v. Keen, where there was a Bond to
pay Money for procuring a Marriage, the Lord Sommers
decreed in Favour of the Bond, conceiving, that as the
Procuring a Marriage was a good Confideration at Law
for an Jjfumpjtt, fo, provided the Bond were in a rea-
fonable Sum, the fame might be a good Confideration
for a Bond in Equity. But that the Lords, with great
Juftice, reverfed the Lord Sommers's Decree, for that it
would be of dangerous Conlequence to allow of any
fuch Bonds, as tending to introduce many improvident
Marriages.

(f) Cafes in Parliament 76, Sec alfo the Cafe of Law verfus £<Kf
poft.

D E

■ -

D E

Term. S. Michaelis,

1730-

Shirley &" at verfus Coni Ferrers. '^'-^'^ ''•

■^ Lord Cljcn-

cellor King.

n^OBERT late Earl Ferrers^ was feifed in Fee (among AWitnefs

many other Eftates) of Lands in Ireland of icool. examined de
per Annum \ and haxnng feveral Sons by his firft Wife, ^"'^ ^'''
(w^.) WaJJnngton, Szc. and allb having feveral Sons by Thing exa-
Iiis fecond Wife, (Silena, the prefent Countefs Dowager "^''"^J,'"|^'
Ferrers) the faid Earl Robert by a Settlement had limi- the Know-
ted thefe Premiffesin Ireland to his Sons by his latt Lady, wftnefUnd
the Countefs Silena. Upon the Death of Earl J^o/'^;/-, was a Matter
the Earldom defcending to IVa/Jjinpon Earl Ferrers, his^oftlno;;
LordlViip claimed Title to the Premifies in Ireland by thf.^g^^'^'^

-» Witncfe Wis

Virtue of a prior Settlement made thereof by Earl not proved to
Robert in May 1685; whereby the Premiiles were li-bcow
mited to himfelf for Life, Remainder to his Son IVa/Jj-
ington for Life, Remainder to his firif, i^c. Son in I'ail
Male, Remainder to every other Son of Earl Robert in
Tail Male fucceflively, Remainders over. And it being
iniifted on by the Sons of the tecond Marriage, that
this was a forged Deed, an Ijfue was direfted to try the
fame. Earl WaJJnngton died without IfFue Male, and
. Vol. III. X the

was

:dto

or in-

78 De Term. S. Michaelis, 1750.

the Earldom defcended to the Defendant. This fu-
fpe£led Deed of May 168 3 had been brought before the
Mailer by Earl Wajlnngton ; and the younger Sons by the
fecond Marriage and their Agents having infpefted it in
the Matter's Hands, one John Shirley., born in Ireland.,
and to whom Earl Wajlnngton had fliewn feveral Fa-
vours, came to the Matter to fee the Deed, and made
an Affidavit, that in December 172c, the Deponent
himfelf, by the Order of Earl IVa/Jjington, tranfcribed
this luppofed Deed from another Copy in Parchment ;
and that, at that Time, there was no Seal, or Name
fubfcribed, nor any Witnettes to it ; whereas now it
appeared, that this very Deed had a Seal put to it, and
Earl Robert's Name and Title fubfcribed to it, and
three Witnettes Names indorfed, though thofe Witnettes
Names were almoft rubbed out.

The Sons by the fecond Marriage thereupon brought
a fupplemental Bill fetting forth this Matter, with John
Shirley s Aflidavit annexed ; and praying, that they
might be at Liberty to examine this Witnefs in order
to have his Tettimony perpetuated. And now it was
moved, that the Plaintiffs might examine this Witnefs
de bene ejfe, the Defendant having prayed a Commif-
iion to anfwer.

On the other Hand this was oppofed on Behalf of
the Earl, by reafon there was not the Common Affi-
davit, that the Witnefs was old, or infirm, or in any
Danger of dying ; and it was laid to be againft the
conttant Courfe to grant fuch Motion, but upon very
full Affidavits of the Witnefs's not only being old, but
alfo infirm, and in Danger of dying.

But the Lord Chancellor (after this had been twice

moved) on Affidavit made, that no other Perfon was

privy to this Matter, as the Plaintiff's knew or believed,

4 did

De Term. S. Michaelis, 1 7 30. 79

did order that the Plalntifts Iliould be at Liberty to exa-
mine this Witnefs Shirley de bene ejje; in Regard he, as
well as all others, might die, and by that Means the
Plaintiffs might be deprived of his Tellimony ; and for
that this Matter lay in the Privity of this Witnefs only,
and was of great Importance: But that if he were then
living, the Plaintiff fhould produce him at the Trial.

Afterwards, on the Trial of the Iffue, at the Bar of
the King's Bench, Hillary, ^V^o, the Deed was found
to be forged, upon the Evidence given by this Witnets.

Jones verfus Com Strafford &" al\ ^^^^ '9

Lord Chan-
cellor King,

nn HE Plaintiff, as Adminilfrator during the Mino- ^"^'^^.^^^g' _

-*- rity of four Infant Children, of the Goods and mond.
Chattels of one Bromell, who died Inteftate, brought
his Bill to recover a Debt by Bond for 2000 /. dated
fo long lince as 1685, and a Debt by Note for 800/.
dated fo long lince as i685, both pretended to have
been given by Sir Henry Johnjon^ Knight. The Bill al-
ledged, that Sir Henry Johnfon by his Will had fubjefted
his Lands to pay his Debts, and was brought by the
Plaintiff againfl: the Defendant the Earl of Strafford,
as Adminiifrator, with the Will annexed of Sir Henry
JohnjoUy (on the Executor's renouncing) and agalnff his
Heir at Law and Devifee; and it appeared by the Bill,
that one of the faid four Infants, being the Eldeff,
and a Daughter, was married to J. N. who was of
Age, and a Co-Plaintiff, and who fued as one of Age,
and not by his Prochein Amy or Guardian.

The Defendant the Earl of Strafford, as to that Pare
of the Bill which fought to recover the 2000/. or the
Money due on the faid Bond, or the Money due on

the

8o De Term. S. Michae/is, 1730.

I ^

the faid Note from the fald Sir Henry Jolmfon, or the
Defendant as his Adminiftrator, or which ioiight any
Relief in Relation thereto, or any Difcovery in Order
to fuch Relief, demurred; for that it appeared on the
Face of the Bill, and of the Plaintiff's own fhewing,
that as the Plaintiff's Title was only as Admin iftrator
of Bromell, fo the Adminiftration was determined by
the Infant Daughter's having married an Hufband who
was of Age ; alio, as to fuch Part of the Bill as fought
to recover the 800 /. or Money due on the Note pre-
tended to have been given in 1686, the faid Defendant
pleaded the Statute of Limitations, and fliewed, that the
Debt was barred by the Statute; and that fix Years
and upwards had incurred, long before the faid Sir Henry
John/on had made his Will, whereby he charged his
Lands with the Payment of his Debts.

Moreover, as to that Part of the Bill, by which the
Plaintiff fought to recover, the Money due on the Bond,
the Defendant pleaded ; that the Plaintiff had brought
an A£lion of Debt on the Bond, in the Court of Exche-
quer againft the Defendant, who had pleaded Solvit ad
diem, and that the faid A£lion was ftill depending ; and
to fome immaterial Part of the Bill, the Defendant put
in a fhort Anfwer. I'hefe Pleas, together with the De-
murrer, coming on to be argued, the Lord Chancellor
called the Lord Chief Juftice Raymond to his Alfi-
ttance.

A Defendant And it was obje£led to the Demurrer, which was
Sur"and^ f^ld to bc in Effcft to the whole Bill, that the fame
plead, or de- y^^as over-rukd by the Pleas, and alfo by the Anfwer;
fwer to the and that this was the proper Conclufion of all Demur-
^^2^n^^J.^^°^ rers, {vi^.) to demand Judgment of the Court, that
thePira,yf. the Defendant ought not to anfwer to what the De-
Sie DciSr- "^^^^^^ extends to : Now the Demurrer extending to
rer. any Relief, as to the Bond or Note, or any Difcovery

4 in

De Term. S. Michaelis, 1 7 30. 81

in Relation thereto, and the Defendant afterwards
pleading the Statute of Limitations as to the Note,
and the Adion at Law, as to the Bond; thefe Pleas
(it was faid) over-ruled the Demurrer : For the Plaintiff
might reply to the Pleas, and thereupon examine Wit-
nefTes, and hear the Caufe; fo that the Pleas were as
an Anfwer, and fworn as an {a) Anfwer. And upon
Time granted to anfwer, the Defendant may' plead ;
wherefore it muft be inconliftent for a Man to fay,
" I demur, and therefore ought not to anfwer," and
yet at the fame Time to anfwer; confequently a De-
fendant cannot plead and demur to the fame Part of
the Bill ; and as Anfwering to the fame Thing over-
rules a Plea, fo a fortiori Pleading or Anfwering to the
fame Thing over-rules a Demurrer.

And of this Opinion were the Court, (i;/;^.) that
the Pleas over-ruled the Demurrer. But ftill it appear-
ing, that the Infant Daughter was married to one that
was of Age ; if thereby the Adminiftration was deter-
mined, the Court faid they would not proceed in a
Suit, where it was evident the Plaintiff claimed under
an Adminiftration which was at an End.

Whereupon for the Demurrer it was infifted, that
the Queftion was no more than this: An Adminiftra- ^"^'^"1'"'"

r 1 n c T n. itration is

tion was granted of the Perional Eltate or an Inteltate granted du-
during the Minority of four Infants, one of whom ""^^ty'^offoJ;
(being a Daughter) had married an Hufband who was infent Chii-
of Age, whether this determined the Adminiftration ? t^m bJing
Now, the only Reafon of granting fuch Adminiftra- a Daughter,
tion during the Minority of the Infants, was, becaufe Sutond^,
none of the Parties interefted were capable of admini- ^J^^.'^^J^
firing, on Account of their tender Age : But when one Adminiftra-
of thefe had married an Hufljand that was of Age, ^^°^^'^."^'^'^
Vol. IIL Y there

(rt) See Vol. 2. 464.

Sz De Term. S. Michaelis, 1730.

there was then a Party interefted, who was capable of
adminlltring ; by which Means, as the Reaion of grant-
ing the Adminiftration ceafed, fo miift the Admini-
ftration alfo. Ceffante Caup, ceffat EffeEius. That the
Hiifband was not only a Perfon capable of admini-
ftring, but the proper Perfon to manage, at leall: his
Wife's Share of the Perfonal Eftate, which feemed all
of it to be now vefted in him ; but moft certainly he
had a Power of difpoling of it : So that the Admini-
ftrator durante minori jEtate had no longer the Property,
nor any Right to the PolTellion thereof. And why
fiiould his Adminiftration continue, when there was
Nothing left for him to adminifter? That it might be
thought fufficicnt for the Defendant to ftiew, that the
faid Adminiftration was determined, without pointing
out to whom Adminiftration fliould now be granted.
However, it was conceived, that as the married Daugh-
ter's Share of the Perfonal Eftate belonged to her Huf-
band, fo he ftiould have Adminiftration granted to
him of fuch Share ; and that a different Adminiftration
might be granted to another Perfon during the Mi-
nority of the other three Infants, ad Vjum ^ Commo'
dum of thefe three Infants.

Neither was it material, that this Hufband who had
married the Infant Daughter, was before the Court,
and a Party to the Bill : For if the Adminiftration was
determined, then the Plaintiff's Right to fue as Admi-
nifirator during Minority, ^c, was at an End ; of which
the Court would take Notice, and not fufter a Suit
to proceed, where there was no Reprefentation of the
Perlonal Eftate in Qiieftion, no Reprefentatives of the
Infants to whom thefe Securities now in Controverfy
(if lubfifting) did belong : I'hat it was very true, there
were three Children of the Inteftate that were Infants
under the Age of Seventeen, belides the Daughter who
was married ; but that would not help the Cafe ; be-
2 caufc

De Term. S. Michae/is, 1730. 85

caufe where an Admlniftration is granted during the
Minority of four Infants, if one of the Infants comes
of Age, this does determine the Adminiftration,. 5 Co.
Brudeneh Cafe, i Lev. 74. agreed by the Counfel on
each Side; nay, the Cafe is there put further, (i;/!^.)
that if Adminilfration be granted during the Minority
of four Infants, and one of the Infants dies, this de-
termines the Adminiftration, in regard it cannot be
faid there are four Infants, when one of them is dead.
Lafily, That Princes Cafe in 5 Co. 29. was very ftrong
in Favour of the Demurrer, where there being an
Infant Executrix under Seventeen, Adminiftration
was granted to J. S. during her Minority : And the
Adminiftrator during Minority fold a Term for Years ;
adjudged fuch Adminiftrator could not fell the Term ;
and further, that the Adminiftration determined on
the Executrix's marrying, if it appeared that the Huf-
bnnd was of Age. So that one of the Points then judi-
cially before the Court, was, whether the Adminiftra-
tion during the Minority, ^c. was not at an End by
the Executrix's marrying; and it was held, that the
Marriage of the Infant Executrix to a Man of Age,
was a Determination thereof; and the Reafon given is,
for that the Executrix had taken an Hufband, who (as
the Book fays) might adminifter as Executor. Which
fame Refolution is mentioned and allowed in Godolphins
Orphans Legacy 21 1, and in Smnburne 286; and in
thofe Books it is faid, that where an Infant Executrix
takes an Hufband, who is of Age, it is the fame
Thing as if fhe herfelf w^re of Age. And in i Vent,
103, the fame is cited for Law by that learned Judge,
Mr. Juftice Twifden. So that from the Reafon of the
Thing, and from the Authorities which were conceived
to be in Point, the Adminiftration durante minori /Etate,
and confequently the Plaintiff's Title to fue, was faid
to be determined ; and furely, in the Cafe of fo ftale a

Demand,

84 De Term. S. Michaelis, 1750.

Demand, the Plaintiff ought to be held ftrlflly to every
Thing, though but Matter of Form.

As to the next Point, which was upon the Plea of

the Statute of Limitations with regard to the pretended

Note for 8co /. from Sir Henry Johnjon to the Plain-

, tift's Inteftate Bromell, and which was dated fo long

ago as the 30th of M^ 1686, (above forty-four Years

lince ;) it was admitted, that Sir Henry Johnfon did by

One owes a his Will fubie6l his Real Eftate to the Payment of his

pieContraa^ Debts ; yet the fix Years, and many Years beyond that

6 Years pafs, Period, having incurred after Sir H^wr/s having given

DebtVbarr- ^^^ ^^^^ Note, and before his making his faid Will,

ed ; after fhis which was a Debt by fimple Contrail, was faid to

Debtor by be barrcd by the Statute, and to hav^e become as no

Will charges i^gl^j. ^^^ confcquentlv neither revived nor aided by

his Lands j •n i i n t n

with the Sir Henry s Will ; and that there was a molt manireit
riihSb°tI Difference between this and the Cafe lately in the Houle
and dies; it of Lords, lu which the Lord Strafford, the now Defen-
Debthrl- ^^"f' ^^^^ Appellant againft one Blakeway. It is true,
vived. the faid Blakeway was a limple Contraft Creditor of Sir
Henry Johnjon by a ftale Note ; but it was {uggerted in
{b) that Bill, and made Part of the printed Cafe, that
the faid Sir Henry, within five Years before the Making
of his Will, and his Death, had paid to the faid Blake-
way Part of the Monies due on the Note then in Que-
ftion, which was iniifted upon as an Acknowledgment
of the faid Debt, and has alone been adjudged to revive
a Debt, and to be Evidence of a new Promife to pay it.
Wherefore (if the Allegations were true) That Debt
was in Fa6l fubfifting at the Time of making Sir
Henry Johnfons Will for Payment of his Debts, and
confequently muft be within the Truft not barrable by
, the Statute of Limitations, though after never fo great
a Length of Time; which is carrying the Statute far

enough
C^) See Vol. 2. 373, 374.

De Term. S, Michaelis, 1 7 30. 89

enough in all Confcience : But in the prefent Cafe the
Debt by fimple Contra£l: was compleatly barred by the
Statute of Limitations before the Making of Sir Uem-^
Jobnfons Will, confequently it was then no Debt, nei-
ther had there been any Manner of Excufe offered,
whereby to alleviate and take off the Obje£lion of this
great Length of Time. And if it ftiould be contend-
ed, that the Statute of Limitations only bars the Re^
mcdy for the Recovery of the Debt ; but that the Debt
in Equity and Confcience remains ttill ; the Anfwer is,
that the Statute of Limitations holds on a Prefumption
that the Debt, in this great Length of Time, has been
paid and fatisfied ; but that the Party is by Death
deprived of his Evidence proving the fame, which he
could not keep alive; or by the Miflaying of the Re-
ceipt, Releafe, or other Voucher of Payment ; and if
the Parliament in this great Length of Time prefumes
a Debt to be paid, why ftiould not the Courts in Wefl-
minfler-Hall make the like Prefumption ? That there is
no fuch Thing in Law as a Right remedilefs, where-
ever there is a Right, the Law giving a Remedy, Salk.
21, 415^. Belides, as the Remedy, Suit, or Action in
the prefent Cafe was admitted to be barred by the
Statute of Limitations, this made the Cafe as ftrong,
as if the Party Creditor, to whom the Debt by fimple
Contra£l was due, had, after the fix Years incurred,
whereby the Debt was barred, releafed to the Debtor
all A£lions and Suits, both at Law and in Equity,
which would certainly have barred the Debt ; nor is it
credible, if, after the Giving of fuch a Releafe, the
Debtor had made fuch a Will as Sir Benry John/on
had done in the prefent Cafe, whereby he had
charged his Real Ertate with the Payment of his
Debts, that the faid Debt by Note would have been
thereby revived.

Vol. in. Z That

8(5 De Term. S. Michaelis, 1730.

That it would be a Thing of the moft mirchlevous
Conlequence imaginable, to conrtriie the Tcftator's Will
in fuch a Senie ; and would prove an Invitation to Cre-
ditors of the longeft ftanding, after ever fo great a
Length of Time (efpecially if fuch Creditors happened
to be poor and necellitousj to bring in their itale and
fatiirfied Debts, in order to a double Payment; and the
prefent Cafe was ftill the harder, it not being the Cafe
of an Executor, who might be prefumed to have been
acquainted with the Teftator and his Affairs, but of an
Adminiftrator, who by his Anfwer had fvyorn himfelf
an utter Stranger to all of them.

Then, as to the other Plea, {vl^) To that Part of the
Bill which fought Satisfaction of the Bond out of the
Real and Perfonal Aflets of the Teftator Sir Henry
John/on, the Defendant had pleaded, that the Plaintiff
the Adminiftrator had brought an Aftion of Debt on
this Bond in the Court of Exchequer, to which A£lion
the Defendant had pleaded Solvit ad diem ; and that the
faid A6lion is ftill depending. Now, as this was a fair
Iffue tendered on the Point of Payment, and to which
the Matter muft at Length one Time or other come,
if the Plaintiff would be fo hardy as to venture it, why
lliould not the Court ftop here, and prevent further
Charge on both Sides, by ordering the Parties to go to
Trial upon fuch Iffue ? And if the Plea of Solvit ad
diem were true, then the Debt being once paid, the
Plaintiff could be intitled to no Difcovery of Affets or
Relief; neither could it be any Objeftion, that the De-
fendant had pleaded doubly in the Adlion brought in
the Exchequer, (vi^.) a fpecial riene Adminiflravit
alfo, by fetting up feveral Debts, ultra qu^ the Defen-
dant had not Affets : For if this were true, the Court
could not take any Notice of it, in Regard they can-
not take Notice of any Thing but what is contained in
» the

De Term. S. Michaelis, 1730. 87

the Plea, nor could the Plaintiff in the principal Cafe
be prejudiced thereby, fince he might amend his Bill,
and charge this Plea by the amended Bill, praying a
Difcovery whether thefe pretended Debts were real and
juft Debts, or not.

With Regard to the firfl. Point, the Lord Chancellor
and Lord Chief Juflice were of Opinion, that the Admi-
niftration taken by the Plaintiff to Bromell, during the
Minority of the four Children, donee aliquis eoritm
ftiould attain to twenty-one, did not determine on one
of thefe Children marrying a Man of full Age ; for
that the Hulband of fuch Child had no Right to ad-
minifter, becaufe not of Kin to the Inteffate, and
when the eldeft Daughter arrived to twenty-one,
though {he fhould be married, yet Admlniftratlon
muft be granted to her, and not to her Hufband. That
upon the Reafon of the Thing, the Admlniftratlon
mull continue, there being no other Perfon capable of
admlniftring ; neither was the Wife's Share of the Per-
fonal Eftate by the Marriage become vefted in the Huf-
band, for there might be Debts which muft be fatisfied
before it could be known whether the Wife had any
and what Right thereto; and after that, it could be
but a Chofe en AEiion, which would not veft abjolntely
in the {c) Hufband by the Marriage ; that as to the
fpeclal Admlniftratlon quoad the Wife's Share to be
granted to the Hufl)and, it was plainly impra£llcable ;
iince it muft be a fourth Part in Specie of all the
Perfonal Eftate, which might confift of feveral intire
Things, fuch as Horfes, Cows and Sheep ; and then
the Huftjand muft have a Fourth of every Horfe, Cow,
^c. of the Inteftate ; and by the fame Reafon, all Bond
and fimple Contradl Debts muft, as to a fourth Part
of them, be vefted in the Hufljand, which would
render it impoflible to put them in Suit ; becaufe

the

^ (c) Vide poft The Cafe of the Lord Carteret verfus Pafchall.

88 De Term S. Michaelis, 1730.

the Hnfband could not fue for a fourth Part of them
only ; and their Lordfhlps ftrongly inclined againft the
Where an Opinion reported by the Lord Coke in Princes Cafe,
cutr"x being vv'liich fays, That where an Infant Executrix is under
under 17, fevcntecn, and an Adminiftration is granted ; if fuch
tionisL-rant- Infant Executtix marries an Hufband of Age, the Ad-
ed, and the miniftration is determined : This Opinion their Lord-
ries an Huf- fhips ftrongly inclined againft, the fame not being taken
^his'^does^not ^^"^'^^ ^^ ^" Other cotemporary Reports, as in 2 And.
determine 1^2. Cro. £//j^. 7 1 8, 7 1 9. and 3 Leo. 278. in all
tlttthy '^^'hJch Books Princes Cafe is reported ; and it is re-
the Z.W mirkable, that the Author of the Book intitled The
ce'ibr, 'an"d' office of Exccutors, p. 2 1 3. mentioning this Opinion,
Raymond a lirtlc marvcls thereat, confidering (as he obferves)
trary'to*the " That thefc Things are managed in the Spiritual
Opinion in « Couft, and by that Law [the Canon] which inter-
feems to " meddles not with the Hufband in the Wife's Cafe,
ex raildf" *' and fince by that Law, and not our Common Law,
ciai, and is " comcs in this Limitation of feventeen Years. He
NotiS'^oTb " ^^^^^ ^^^^ ^^ ^^^ ^^^^ ^^^^ ^^^® otherwife reported

cotemporary " in this Point."

Reporters.

Befides, That Part of the Cafe was at leaft an extra-
judicial Opinion not neceflary to be determined, the
principal Qiieftion being only, whether fuch a fpecial
Adminiftrator could aflign over a Term for Years which
belonged to the Teftator ? and refolved he could not,
which certainly is good Law. However, taking the
above mentioned Point in Prince's Cafe to be Law, yet
it differed, they faid, from the Cafe now before the
Court ; for where an Adminiftration determines by the
Marriage of an Infant Executrix to one of Age, in the
fame Manner as if the Executrix herfelf were of Age,
there is then a certain, known Perfon to adminifter, ("to
wit) the Feme Infant, (the Hufband being incapable of
proving the Will) and it is the Cafe but of one Minor :
Whereas in the principal Cafe it could not be known
I who

De Term. S. Michaelts, 1730. 89

who was to be the Adminiftrator, or whether there
was any other more proper for that Office than the
Perfon already appointed during the Minority ; for the
Hulband being not intitled to have the Adminiftra-
tion granted to him, it was in the Difcretion of the
Ordinary to grant it to whom he pleafed, this Sort of
Adminillration (^) not being within the Statute ; and ^° '^ ^'''"'"
they further held, contrary to one of the Refokitions granted du-
above mentioned in Brudeneh Cafe, that if Admini- "■'"§ ^'^'^ !^^'"

n • /I I 1 I 11' 1 • • p r nonty of

Itration mould be granted during the Minority of four four infants.
Infants, one of whom {hould die before he comes to ^"'^ °"'^ 'l'^^'
Age ; this would not determine the Adminiftration ; determine
for the living Infants would not be of Age, and the ft/a^tont"'"
other dying during his Infancy, and not being in Ejfe, contrary to
would be as out of the Cafe. \nsC^-Bru.

denel's Cafe.

Secondly, Touching the Plea of the Statute of Limi-
tations, where the Teftator, after fix Years incurred,
makes his Will, and charges his Lands with the Pay-
ment of his Debts {e) ; the Court obferved, it had
been held that fuch Will revives [a] the Debt, in
Regard the fame, though the fix Years are palled, con-
tinues ftill to be a Debt in Confcience, and a Defen-
dant may, if he pleafes, waive the Benefit of the Sta-
tute. However, it having in a former Caufe of the
Lord Strafford's, brought before the Houfe of Lords on
a like Point, been ordered, that the Plea fliould fland

Vol. III. A a for

(d) See I Vent. 219. per Hale'C. J.

(f) See Salk. 154. & 2 Vern. 141. Goflon verfus Mill.

[A] ^are. If a. Man were to devife his Perfonal Eftate in Trufl: to
pay his Debts, whether would this, as creating a Truft, revive a Debt
barred by the Statute ; or would not fuch Devife be meerly void, as fay-
ing no more than the Law of Courfe fays, (viz.) That a Man's Perfonal
Eftate fliall pay his Debts ? and if the Teftator fhould fay that his Per-
fonal Eftate fhall tioi be liable to pay his Debts, or that his Book Debts
fbail be paid thereout before his Bonds, fuch Will would be plainly
void.

po De Term. S. Michaelis, 1 7 p.

Where

for an Anfwer ; the like Order was made in the prin-
cipal Cafe. And,

In Relation to the third Point ; the Lord Chametlor
and Chief Juflice were clear, that the Plea ought to be
over-ruled, as being, in EfFeft, only a Plea of another
A£lion depending in another Court for the fame
. y!?'' Thing ; and that therefore the Plaintiff ought to make
both at Law his Eleflion [B] in what Court he would fue, which
^"'^^^"^J^''Ele6lion no Plaintiff is bound to make, until the De-
fame Thing, fendant has anfwered.

he will be

put to make his Eleftion in which Court he will proceed; but need not however make fuch

Election till the Defendant has anfwered.

[B] The Order for making an Eleftion, recites only, that the Plaintiff
profecutes the Defendant at Law and in Equity for one and the fame
Matter, fo that the Defendant is doubly vexed ; wherefore it provides
that the Plaintiff, his Clerk in Court and Attorney at Law, having No-
tice of the Order, do within eight Days after fuch Notice, make his Elec-
tion in which Court he will proceed ; and if he elefts to proceed in this
Court (the Chancery,) then the Proceedings at Law are by that Order
to be flayed by Injundtion. But if the Plaintiff ffiall eledl to proceed
at Law, or in Default of fuch Eleftion by the Time aforefaid, his Bill
is to be difmiffed with Cofls. And note ; If one makes a [pedal
Eleftlon to proceed at Law as to Part, and in Equity as to other
Part ; with regard to what the Plaintiff in Equity elecb to proceed
at Law, his Bill ought to be difmiffed with Cofts. By Sir ']ofepb
Jekyll, Mafter of the Rolls, Michaelmas 1723. Anorr/mus.

D E

b E

Term* S. Hillarii,

1730.

Harris verfus Ingledevi. cAia-.

Sir Jofeph
Jekyll, Ma'

HIS Bill was brought by the fimple Contra£l /'-'•?/" '/--^
Creditors of William Ingledew, to compel a Sale
tof the Real Eftate of the faid William Ingledexp, for ^^^^'^'^ J'^'"
Payment of his Debts, he having made a Will to this all my
Effeft : " As to all my worldly Eftate, my Debts being ftaTe, my'
" fi^ft f^tisfied, I devlfe the fame as follows." Then he Debts being
proceeded to devife Part of his Eftate, being Freehold, g[ve,^S'/;
to his Brother in Fee, to whom alfo he bequeathed a^'^^5^'.^:
Term for Years. Other Part being Copyhold, he devifed to theDebts,
to A. in Fee, other Part of his Freehold to B. and the "°'*\'"s.!'^-

. . , ,. . '"g deviled

remaining Part to C. in Fee ; after which he died with- till theDebts
out Ifllie, leaving his Brother John Inglederp his Heir, ^"^^ ^^' '
who having, on the Teftator's Death, entered on the
Freehold Lands devifed to him, and alfo on the Copy-
hold Premifles, as not having been furrendered to the
Ufe of the Will, made his Will, whereby he devifed
all his Eftate Real and Perfonal to his Wife, and died,
leaving a Son.

The

pi De Term. S. Hi //aril, 1730.

The Widow of John Ingledew the Brother, and her
Son, being the Nephew and Heir of the fiift Teftator,
joined in a Sale of federal of thefe Lands to feveral
Perfons, for vakiable Confiderations ; and the limple
ContracO: Creditors now bringing their Bill againft the
feveral Devifees of the PremiiTes, and alfo againft the
Purchafers, in order that the feveral Lands might be
iold for the Satisfaflion of their Demands, the Will was
proved, but John Inglederv, the Nephew and Heir of
the firft Teftator, was not made a Defendant to the
Bill.

In a Devife UpoH which it was infiftcd, that the Heir at Law
pay De"bt's, "if ought to be a Patty, it being ever done in like Cafes;
*he Creditors t|^2f fj^g BJU being for a Sale, if the Heir was before
to compel a the Coutt, the Evidence to the Will would be per-
Saie, the petuated ; but in Cafe he fliould not be a Party, a
rally to^e Decrce for Sale of the Eftate would be vain ; for no one
^^'^^^^'"^'- would buy, at leaft he would not give Half the Value
Cafe of a for It : Whercas, fliould the Heir be a Defendant, this
tedt^ D?ed 'VV' ill charging the Lands with Payment of the Debts, the
topayDebts. \^q\x would be dccrced to join ; that the general Prac-
tice in Cafes where a Will of Land is proved, is, to
declare the Will well proved ; that is, well proved
againft the Heir; for it cannot be faid to be proved
againft any one elfe. And fuppofe thefe Lands ftiould
be fold by the Devifees, purfuant to the Decree, and
afterwards the Heir ftiould fue for the Eftate, and re-
cover ; here would be a Purchafer under a Decree,
evi6led notwithftanding, for want of the Plaintiff"'s
having made the Heir a Party ; And yet the Court
ought not to fufter any Thing to happen to the Pre-
judice of thofe, who are to be Purchafers under its
Decrees.

De Term. S. Hi liar it, 1730. 93

To which it was anfwered, that the Defcent was
broke by the Devife, and the Eftate being devlfed away,
from the Heir at Law, he was no more interefted
therein than any Stranger; that In Cafe Lands are by
a Deed conveyed to Truftees to fell, and afterwards the
Grantor dies, unlefs the Heir is to have the Surplus,
he need not be a Party to the B1H for compelling a
Sale.

Mafler of the Rolls: This feems a material Obje£l:lon ;
for fince the Sale of the Eftate muft affe6l all the De-
vlfees in Proportion, and as the Eftate would not,
without the Heir being a Party to the Decree, fell for
near the Value, this might be a Wrong to all the
Devifees, and occafion more of their Lands to be fold,
than would perhaps be otherwlfe necefl'ary. With Re-
gard to what has been urged, that where Lands are Where a Bill
conveyed by Deed to Truftees to fell, the Heir, unlefs '^,tl°elwni
intitled to the Surplus, need not be a Party to a Bill of Land, the
that prays a Sale; it muft be obferved, that the Proof y"||2to°r
of a Will is attended with more Solemnity than that ofi""fti'epro.
a Deed ; the former being fuppofed to be made when j^ the Cafe
the Teftator is in extremis, and therefore in Equity it^*^^^'^°[
is neceftary to prove the Sanity, which is all prefumed for Payment
in the Cafe of the latter : Alfo a Deed may be proved "^^ °^'''^-
viva voce at the Hearing ; but no fuch Order can be The Court
made for Proving a Will ; the Reafon is, becaufe here " WiirtoTe
more is to be proved than barely the Execution ; for pi'oved ww«
Inftance, you muft prove, that there were three Wit- Hearing, as
nefles, and that thefe fubfcrlbed their Names In thej^^yj**"*
Prefence of the Teftator ; which holds ftlll ftronger in
the prefent Cafe, where two Wills are to be proved,
namely, the Will of the firft Teftator William Ingkdew,
and afterwards that of John Ingledew.

Vol. III. B b But

94 i^^ Term. S. Hi liar it, 1 7 30.

But after all, confidering that William Ingledeicp, the
firft Teftator, had been dead ever fince December 1719,
and that the Freehold Lands had been quietly enjoy 'd
under the Will, his Honour did decree a Sale without
the Heir being a Party ; but faid, he would flop paiT-
ing the Decree, in Cafe the Defendant's Counfel fhould
be able to fhevv where, in the like Inftance, the Court
ever refufed to make a Decree, without making the
Heir a Party.

Secondly, In this Cafe, one of the Defendants having
purchafed a Term for Years, and alfo Part of the Free-
hold Eftate that had belonged to the Teftator William
Ingledew, he pleaded, that he was a Purchafer for a
full and valuable Coniideration, (fhewing the Sum, and
that it was to the full Value of the Eftates) but omitted
in his Plea to deny Notice of the Will of William Ingk"
dew.

A Defendant And for the Plea it was argued, that the Plaintiff
inhisPieaof jTjayjf^CT replied to the Plea, he had admitted it to be
foravaiua- good ; but joined Iffue thereon, infifting it was not
di'^a^on'^" ^'^^^^ ^"^ Faft; indeed, had he fet it down to be ar-
omitstodeny gued, it would then have been a good Exception there-
the nJntiff ^^' ^^'^^^ ^^''^ Defendant had not denied Notice : But
replies to it, lince the Plaintiff had not thought fit fo to do, but
fendant has l^^*^ replied to the Plea, all that was incumbent on the
to do, is to Defendant was, to prove what he had pleaded ; which
Fw^hafe; if he fhould be able to do, the Bill, as againft him,
and it is not ^uft be difmiffcd with Cofts. Befides, otherwife the
the piaintifF Defendant might be tricked by the Plaintiff, who having
ncr-^'fS'it ^'^^'"<^' ^hat the Defendant has made a Slip in his Plea,
was the might decline arguing it, and reply to it. In which
rwirSt, ^^^^ ^^^ Defendant would be without Remedy; for
that he did he could do no more than prove his Plea : Whereas,

not fet down

the Plea to be argued, in which Cafe it would have been over-ruled.

I if

De Term. S. Hi liar it, 1730. 99

if fuch Plea had been fet down to be argued, on its
being over-ruled, the Defendant might ftill have helped
himlelf, by putting all his Defence in his Anfwer.

On the contrary it was faid, that when every one
fees here is a Leafe for Years, w^hich of Courfe is liable
to pay Debts by limple Contraft, and to which a Pur-
chaler cannot poffibly have any Title but by the Will,
it was to be prefumed the Court would hardly fhut
their Eyes, but permit the honeft Creditors to follow
the Aitets wherever they can find them. Alfo this
would be a Prejudice to the Devifees of the Real Eftate,
iliould the I'erm not be applied to the Payment of
Debts, becaufe more of the Lands devifed mult be io\X
than otherwife need be.

Mafler of the ^olls : The conftant Courfe is, in
Cafe a Plea be replied to, that the Defendant need
pnly prove his Plea : And here it is the Plaintiff's
own Fault ; for he had it in his Election to have fet
it down to be argued. Wherefore, if the Defendant
proves what he has pleaded, the Bill is to be difmiffed,
as againft him, with Cofts. But with Regard to the
Objeftion, that the Devifees of the Land will fuffer
by this, in that more of their Lands muft now be
fold ; this will not prevent the Devifees, or any of
them, from bringing their Bill to compel an Applica-
tion of this Leafe, in the firft Place, to the Payment
of their Debts, as being Part of the Perlonal Eftate.

Thirdly, It was contended, that the Real Eftate of
the Teftator, William Inglederp, was not by his Will
charged with the Payment of Debts ; for though
it w^as faid, that as to the Teftator's worldly Eftate,
his Debts bein^ firfl fatisjied, he devifed the fame, iffc.
I'hough the Teftator did fay his Debts fliould be firft

fatisiied.

96 De Term. S. Hi //aril, 1730.

fatisfied, yet he did not fay his Debts fhould be charged
on his Land, or Real Eftate.

But the Matter of the Rolls thought it to be very
clear, that in this Cafe no Land, nor any Part of the
Teftator's worldly Eftate, was devifed until after his
Debts paid, coniequently that the (a) Land was char-
ged; for which he cited i Vern. 45, Nerftnan verfus
Johnjon^ z Vern. 708, Trott verfus Vernon ; and he
thought it would have been fufficient, though the
Word firfl had been omitted.

ch'argiaii' Fourthly^ It was argued, that admitting the Freehold
his worldly of the Tcftator to be charged with Payment of Debts,
hisD^ebts, yet the Copyhold which was not furrendered to the
f'!.'^ f f'^'' ^^^ ^^ ^^^ ^^'\\\, was not charged, that not being in
hold and Co- Law devifeable ; and though it had been lurrendered
pyhoid E- (Q f i^g ufe of the Will, yet even in fuch Cafe it

ftates, which rr i i i

he particu- would have palled by the Surrender, not by the Will ;
0/ Vtfe"'^' ^"^^ which Reafon a Copyhold will pais, though by a
Will ; the Will that has not three WitnelTes to it. So if I were
th3h°no't fo devife all my Real Eftate, though a Copyhold may,
furrendered Jq fome Scnfc, be deemed a Real Eftate, as it defcends
the Wiii^ ° to the Heir, and does not go to Executors, yet the
(hall yet be Copyhold would not pafs in that Cafe, becaufe the In-
the Payment tent of fuch Will muft be to devife an Eftate that is
of the Debts, J jj -jg Mature devifeable.

pan pajju

with the
Freehold.

However, the Mafier of the Rolls was of Opinion,
that in the principal Cafe the Copyhold, as well as
Freehold, was well charged with the Debts; fince all the
Copyhold of the Teftator was by exprefs Words devi-
fed either to the Heirs, or to thofe that were not his
Heirs. So that it appears the Teftator took the Copy-
hold to be Part of his worldly Eftate, all which is by

2 the

{a) See alfo the Cafe of King verfus King port.

De Term. S. Hi liar ii, 1730. 97

the Will charged with the Payment of his Debts. And
it had been fufficient, if the Teftaror had only faid,
" I charge my Copyhold Land with the Payment of
" my Debts;" in which Cafe Equity would have fup-
plied the Want of a Surrender, [a]

Fifthly, But then it was infifted for the Defendant,
that granting the Copyhold Lands were m.ade liable by
the Will to th? Payment of Debts, yet that oughc
not to be, till all the Freehold Lands had been firft
applied ; for they ought not to come in pari pciffu with
the Freehold Lands, becaufe thefe are devilable at
I,aw, which the others are not; and Equity muft firll
intervene, and fupply the Want of a Surrender, before
Copyhold Lands can be liable, whereas a Freehold is
devifable and chargeable by the Teftator by the Will
only.

To which it was anfwered, that as this Will was
penned, the Freehold was not devifed, but only char- .
ged with the Debts, which amounted to no more than
an equitabk Charge, as to the Freehold as well as
Copyhold ; and the Copyhold being mentioned in the
Will, it was the Intention of the Teilator, that they
fhould be charged equally and in Proportion.

Though for the Defendant it was replied, that let
a Copyhold be never fo expreily devifed, yet, unlets
it be for Payment of Debts, a Charity, or by way of

Vol. in. C c Provifion

[A] This the Reporter admits to be fo, but oblerves, if it were
but an equitable Charge, and the legal Eftate of the Copyhold had dc-
fcended to the Heir, that would have made it necefiary that the Heir
fliould be a Party, becaufe otherwife the legal Eftate of the Copyhold
could not be conveyed to a Purchafer. But if it had appeared, (which
he thinks did not) that the Heir at Law had, fince theTeftator's Death,
conveyed away all the Copyhold Eftate, then indeed, the Grantee of the
Heir being capable of conveying to the Purchafer, ic might not be nc-
celTary to make the Heir a Party.

98 De Term. S. Hi liar ii, 1750.

Provilion for a Wife or Children, (which Cafes did not
any way concern the prefent) Equity will not fupply
the Want of a Surrender. That this is never done in
Favour of a Devifee, confequently there could be no
Reafon to expe6l it in Favour of the Deviiees of the
Freehold Eftates in the principal Cafe, lince it did not
as yet appear, but that thefe Eftates, if all fold, would
be fufficient to difcharge the Debts ; and therefore the
Copyhold ought not to be charged pari paffu. ^od
nota.

Notwlthftandlng which, his Honour Inclln'd, that
(he Copyhold fhould be charged with the Debts pari
pajfu with the Freehold, by reafon the former were as
exprefly deviled by the Will as the latter, and all the
Teftator's worldly Eftate was fubje£led to the Payment
of his Debts. But iince it did not as yet appear, that
the Perfonal Eftate would not be fufficient to pay the
Debts, this Point, whether the Copyhold fhould con-
tribtite pari pajfit, iS''c. was referved till after the Ac-
count taken. But,

If I charge Sixthly ^ Hereupon, on Behalf of the Creditors, It wai

with By'"''' reprefented to be hard, that thefe {hould be obliged to

mentofmy wait Until the Account was taken, and until the Mafter

(ievife'part fhould have certified how much would be the Propor-

to y/. and tJQQ that each Devifee or each Purchafer was to con-
other Part to ., 1 1 ' r> • r n • T-i 1 1^-1
B. &c. the tribute towards their Satistact4on. ror that the Cre-

Creditors (jjfors ousht to be at Liberty to come upon any Part

cannot be n /- •

paid out of of the Freehold Eftate; after which the feveral Devi-
tiiithrMa- ^^^^ °^ Purchafers might apportion the Charge amongft
fterhascer- thcmfelves J and as to the Freehold that had been fold,
tiJpr'^poJ- ^^^ Creditors were willing to take the Money from the
tion is, which Heir or Devifees, who had fold, and fo give the Pur-

cach Devifee t r m i i

is to contri- chalers no Trouble.

biite ; but if

the Mafter certifits, that the Debts will exhauft the whole Real Eftatt, then the Creditors

may proceed againft any one Devifee for the Whole.

I Ctir':

Hillary Vacation, 1730. ^9

Cii/ : That will indeed make the Matter more eafy ;
but yet, till the Accoiint fhall have been taken, and
it be known what the Proportion is that each De-
vifee k to pay, the Creditors muft wait notwithftand-
ing ; for they muft not be left at Liberty to take
the Whole from fome of the Devifees, and but Part
from others; which would be oppreffive. And if the
whole Eftate of any of the Devifees be not liable, then
the whole Purchafe Money, for which any Part of the
PremlfTes was fold, will not be hable. But if it fhall
be reported by the Mafter, that the Whole of the
Freehold Lands will be infufficient for Payment of the
Debts, then the Creditors may proceed againfl any one
Devifee for the Whole, in Cafe I fhould be of Opi-
nion, that the Copyhold ought not to be charged pari
pajfu ; but if 1 fhall continue to think as I do at pre-
fetit, in fuch Cafe, the Creditors muft wait until the
Proportion is fettled, what the Owner of each is to
contribute, as well with Regard to the Copyhold as the
Freehold. [B]

Witter verfus Witter, ^''^^r.

Lord Chan-

Hnlary Vacation., 17}0.

HDOBERT Witter, pofTefTed of a Term for Ninety- An Excai-
nine Years of Lands in the County of Chefler, iffor In infant
three Lives, or any of them fhould fo Ions live, held "f "" ^^^'"^

' •/ '-'for ggYears,

determinable on three Lives, or» the Lord's refufing to renew but for Lives abfolutely, com-
plies with the Lord, and changes the Years into Lives; on the Infant's dying under 21, and
jnteftate ; this (hall be a Truft for his Adminiftrator, and not for his Heir.

[B] In this Cafe the Mader of the Rolls did not alter his Opinion,
it appearing by the Regifter's Boot:, that the Will of the Teftator,
H^illiam Ingledeiv, was declared to be well proved, and that the Free-
hold and Copyhold Eftates particularly deviled by his Will, were liable
to the Payment of his Debts, pari pajju. March lo, 1730.

100 Hillary Vacation, 1730.

of the late Earl Rivers, made A. his Executor, and by
his Will devifed the Term to his Infant Nephew, John
Witter, and died, his own Life being one of the three
Lives. The Executor applied to the Earl Rivers to
renew, by adding a third Life, and there was fome
flight Proof that the Earl had refuted to make any
more Leafes for Years of his Tenements in Leafe, but
had changed them to Lives, in order to makes Votes
in chufing Members of Parliament, when he was ia
the Adminiftration. So that in the prefent Cafe the
Executor of Robert Witter the LefTee took a new Leafe,
in the Name of a Truftee, to him and his Heirs for
three Lives, ('^7^.) That of the Infant, and the two
old Lives; and this was in Trult for the Infant and
his Heirs.

The Infant died above the Age of fourteen and
under twenty-one, unmarried and Inteftate : \Vhere-
upon the Queftlon was, who fhould be intitled to this
Leafe, his Heir, or Adminiil:rator ?

Truftee can- It was iulifted, that the Adminiftrator of the Infant
"heNtmS ^^'^s intitled ; and that it fhould not be in the Breaft of
of the Eftate any Executor or Trultee to alter the Nature of the
Mon"e7'i"'fto Trufl-Eltatc, any more than it was in the Ele£lion of
Land, or a g [c] Guardlau to chauge the Perfonal ElT:ate by inveft-
Years into a liig it vc\ Lands : Slnce this would be to give, an abfolute
Treehoid & Power of difpofmg of and altering the Right and Pro-
perty of the Leafe, to one who was but a bare Tru-
ftee ; that if the Court had been applied to for Leave
to do this, they would never have granted it, without
a Provifion, that in Cafe the Infant Ihould die during
his Infancy, the Purchafe fhould not turn to the Pre-
judice of the Reprefentatives of his Perfonal Eftate :
2 Alfo

[C] See for this Purpofe the Cafe of ^erry verfus Terry and Ragget,-
Precedents in Chan. 273.

Hillary Vacation, 1 7 30. 10 1

Alfo that this would be injurious to the Infant himfelF,
who, if it had continued, as originally it was, a Leafe
for Years, might have devifed it at fourteen [D] ;
whereas being turned into a Freehold defcendible, it
could not be deviled by him until his Age of twenty-
one.

On the other Side It was reprefented as likely to
prove very detrimental to an Infant, if, in a Cafe
where the Lord would not renew but for Lives, the
Executor fhould not be enabled to comply with this ;
becaufe the other two Lives might drop during the In-
fant's Life ; and the Cafe would be the fame if there
were but one Life in Being ; and then the Infant, in-
Itead of being deprived of the Power of deviling (as had
been objefled) might have no Eitate to devife ; that
the putting the Infant's Life into the Leafe muft be
for the Benefit of the Infant, and of him only ; and
as to what had been mentioned of turning an Infant's
Perfonal into a Real Eflate, that feemed to be a Thing
rot necefTary, but the Renewal of the Leafe was a
Matter of abfolute NeceQity.

Lord Chancellor : This renewed Leafe, though for A renewed
Lives, Ihall follow the Nature of the original one, and fXw the
go to the Executors or Adminiftrators of the Infant, as Nature of
that lliould have done. If the Fad had been (which one.°"^'"
has not been fully proved) that the Lord Rivers would
not have made any other than a defcendible Leafe for
three Lives, this might and ought to have been de-
clared in Trult for the Benefit of the Executors and
Adminiftrators of the Infant, if he Ihould die during
his Infancy, Now, though this Truft be not declared,
Vol. in. D d yet

[D] In the Cafe of the Earl of IVinchelfea verfus Norclife^ i Vern.
402,435. this Obfervation appears to have been firft made by Serjeant
(iif'tervvards Lord CommilTioner) Rawljnfon, and to have had great Strefs
laid upon it by the Lord Chancellor Jefferys.

101 Hillary Vacation, 1 7 30.

yet it is in Equity implied, fince the renewed Leafe,

though for Lives, comes in the Place and Stead of the

An Eftate original Leafe which was for Years. In Confequence

is"diftributa- of which his Lordfliip declared, that the fame fiiould be

bie in Equi- liable to E Diftiibution according to the Statute, fay-

ty, though . , 1 1 1 o • • I X-. •

not in the ing, that though the Spiritual Court cannot mter-
g»muai meddle with a Freehold to diftribute [E] it, yet it

doth not follow but that this Court may inforce fuch

a Diftribution.

[E] See Salk. 464. Oldham verfus Pickering, and the Note at the
End of the Cafe of Duke of Drjon verfus Atkins, Vol. 2. 382. but
more parricularly the Statute of 14 Geo. 2. whereby an Eftate fur autre
vie being undevifed, or in Part applied to the Payment of Debts ac-
cording to the Statute of Frauds, fhall be diftributed in Uic lame
Manner as Perfonal Eftate.

P E

-J - aggaWB-t^

105

D E

Term. Pafch^.

1731

Ex parte Sir Richard Grofvenor. caC: 22.

Lord Chan-

SIR Richard Grofvenor, upon filing Articles in Chan- " '\: "!^*
I • 1 r. I • • A >r 1 Suppluavit.

eery, obtained a Supplicavit againlt Mrs. — • who One taken

being taken upon the Writ, was carried to Newgate, °" f ^^^^''
where fhe had continued near thirteen Months. And conti'ntied in
now it was moved that (he might be dlfcharged, inlift- ^'i'^out^^'
ing, that it was the Courfe of the King's Bench, if a freihThicat-
Supplicavit be granted againft any one, and the Party ""'1; j|^^ '
taken upon It continues in Prifon for a Year and a Day, charged.
without any freih Threatnlng or Mifbehavionr having
been offered by or on Behalf of the Party againft whom
the Supplicavit w^as granted ; that he ought to be dlf-
charged, and that it was fo in the Cafe of Commit-
ments for any Breach of the Peace.

Lord Chancellor : Nothing can be more oppreflive Nothing
than an indefinite Imprifonment ; and it ieems a ^reffive^tiian
reafonable Praftice in the King's Bench, if nothing has indefinite
been offered either by Threafning, or other Milbeha- nient.
viour, within a Year and a Day after the Taking up of
I the

I04 De Term. Pafcha, 17 3 1.

the Party, by him or on his Behalf, that he ought to

be difcharged. Accordingly the Court was inclined to

Notice of i^^^.g granted the Motion in the principal Gale : But

given by one the Noticc of Motiou being given by A.B. the Solicitor

not allowed ^ ^.j^^ Woman that was committed, and he not beini^

to act as a i /^ i i

Solicitor, a Solicitor admitted in Chancery, the Court would not

not good, j^^j^ w^^on this as Notice ; and the Party undertaking

to give another Notice againlt the firil Day of the

Term, the Motion was put off till then, at which Time

the faid Mrs. moved it again, and it was ordered

that Ihe (hould be difcharged upon entering into a Re-
cognifance before a Mafter in lOo/. with two Sureties
in 50/. each, to keep the Peace; and the !^»^arter was
direfted to be eafy and not ftrift as to the Abilities of
the Sureties, the Court having Regard to her long Im-
priionment.

Cafe 23. Francis Sheldon, Efq; verfus Mr. Ju-
Jlice Fortefcue Aland & al\

Lord Chan-
cellor Kiri»,

The Court A Bill was brought by the Adminiftrator of Sir Wil-
PrcfiTso/the liarn Dormer, Bare, a Lunatick, againft the Ad-

Lunatick's miniftraror of Mr. Jurtice Dormer, to have an Account
Committee of the Petfoual Eftate, and of the Rents and Profits of
for the t[^g {^g^j £[^afg yf f^e Luuatick, received in his Life-

Mamte- . '

nance of i,is time by Mr. Jultice Do/'Wfr, who was the Committee
Perfon The^^f the Luuatick's Elhtc J lliewina, that Sir William

J^unatick , _ _ . -^

dies, his Ad- Dormcr was leifed in Fee of divers Manors and Lands
blinds T Bill '" ^^'^^ Counties of Bucks and Gloccjler, of i^oc/. per
for an Ac- Anniim, and poflefled of a coniiderable Perfonal Ellate,
thefe Profits; 3nd in \6c)i became, and was by Inquilition found, a
the Defen- Lunatick ; and that the Ciiftody of his Eftare was
Committee granted to Mr. Juitice Dormer, and that of his Perlon

pleads this

Order of Court of the Allowance of the Profits for the Lunatick's Maintenance ; the Plea
ordered, to ftand for an Anfwer ; but the Court declared they would not relieve in fiich-Cafe
without grofs Fraud.

2 to

De Term. Pafchce, 1751. 109

to Sir Robert Jenkinjon. The Bill was alfo to be re-
lieved againft, and to fet alide, feveral Orders of the
Court of Chancery, whereby it was ordered, that Mr.
Juftice Dormer {hould be allowed the Rents and Profits
of the Liinatick's Eftate for the Maintenance of the
Lunatick's Perfon, and the Care and Management of •
his Eftate. To which Purpofe the Bill fet forth,
that after the Inquifition found, to the End the Court
might judge what was a proper Allowance for the
Maintenance of the Lunatick, it was direfted, that
the Mafter fhould look into the Value of the Eftate
and the Incumbrances thereon : That purfuant to fuch
Order, the Mafter made a Report of the yearly Value
of the Eftate, and the Charge of the Phyficians attend-
ing the Lunatick, and the Difburfements of Mr. Juftice
Dormer relating to the Eftate ; and this Account was
figned by Mr. Sheldon who married the Sifter and next
prefumptive Heir of the Lunatick ; that thereupon the
Lord Sommers, by Order of the i6th of Juney 1699,
with the Confent of the faid Mr. Sheldon, ordered, that
the Profits of the Lunatick's Eftate fliould be allowed
to Mr. Juftice Dormer for the Maintenance of the Lu-
natick, and the Care and Management of his Eftate,
dedu(3:ing only 200/. per Annum thereout for the pay-
ing off Incumbrances upon the Eftate, and which in
Fail have fince been paid off; that the laft Order had
been continued or revived upon every Demile of the
Crown, and by the fucceeding Lord Chancellor or Lord
Keeper of the Great Seal for the Time being. And the
Bill further fhewed, that Mr. Juftice Dormer, and the
Lunatick's Sifter Sufannah, the Wife of Sheldon, feven
Days before the making of the above mentioned Order
by the Lord Sommers, (-yi^-) on the 9th Day of June,
1699, did enter into Articles, whereby Sheldon cove-
nanted for himfelf, his Wife and his Children born,
or to be born, that they would be aiding to the Judge,
who ftiould have the Buckinghnmjlnre Eftate allowed to
Vol. in. £ e him

io6 De Term. Pafchcc, 173 1.

him for the Maintenance of the Lunatick, and be per-
niitted to take up his Bond, which he had given to
account. And Air. Juftice Dormer covenanted, that he
would be aiding and afhfting to Sheldon and his Wife,
who were to have the GlouceJlcrJJyire Eltate of the Lu-
natick without Account, fave only that out of the
Profits thereof a Debt of 55c/. on the Glouce[}er/hire
Ellate, Ihould be paid off.

The Defendant, Mr. Juftice Fortcfcue, and his Lady
pleaded, that King Will'mm and Qtieen Mnr}\ by Vir-
tue of their undoubted Prerogative, by their Royal Sign
Manual direfled to Sir John Sommers, Knight, then Lord
Keeper of the Great Seal of England, reciting, that the
Care of Ideots and Lunaticks doth of Right belong to
the Crown, did grant to the faid Sir John Sommers full
Power and Authority, without any further Warrant,
to give Order and Direilion for Preparing of Grants
for the Cuftody or Commitment of the Eifates or
Perfons of Lunaticks or Ideots, according to the Rules
of Law, and the Ufe and Praftice in like Cafes, as he
Ihould judge meet. I'hey then pleaded, that Sir Wil'
Ham Dormer was by Inquilicion found a Lunatick, and
the Inquificion returned into the Petty Bag ; and they
pleaded the feveral Orders under the feveral Lord
Chancellors and Lord Keepers for the Time being,
upon every Demife of the Crown, whereby the Cu-
Itody of the Eltate of the Lunatick w^^s committed to
Mr. Juftice Dormer ; and the Orders whereby the Ma-
fter was to take an Account of the Eftate of the Lu-
natick and of its Incumbrances, and the Mafter's Re-
port thereupon ; and in particular, the Order of the
16th of June., i699i made by the "Loid Sommers by
the Conient of Mr. Sheldon, that 200 /. per Annum out
of the Eftate ftiould be applied towards the Payment
of the Incumbrances affe6ling the Lunatick's Eftate, the
Relidue to be allowed towards the Maintenance of the

2 Lunatick

De Term, Pafch^, 17 3 1. 1 07

Lunatlck and the Management of his Eftate ; and
likewlle the feveral Orders made by the Great Seal,
upon every Demiie of the Crown, for Reviving of the
faid Order of the i6th of Jime^ ^^99, and the Grants
made under the Royal Sign Manu:d, upon every De-
mife of the Crown, to the then Lord Chancellor or
Lord Keeper, authorifing them refpe6llvely to make
Grants and Orders for the Cuftody of the Perfons and
Eftates of Lunatlcks, and to a61: therein as they fhould
think fit. All which Grants under the Royal Sign
Manual, together with the Report, and the faid fuc-
cellive Orders, the Defendants pleaded in Bar of fuch
Part of the Bill, as lought to compel the Defendants
to account for the Rents and Profits of the Lunatick's
Eftate, or to difcharge the faid Orders.

For the Plea it was Infifted, that this was a peculiar
Jurildiflion of the Great Seal, granted under the Royal
Sign Manual, and in Virtue of the Prerogative of the
Crown ; that thefe Orders were made by the Lord
Chancellors or Lord Keepers for the Time being, not
as Chancellors or Keepers, but by Authority of the
Sign Manual, and under this particular Power and Ju-
rifdicElion, and fo not impeachable by Bill to the Lord
Chancellor as Lord Chancellor ; befides, that were it
in the Cafe of any Order made by the Lord Chancel-
lor as Loi'd Chancellor, Nothing could be more incon-
gruous, than to bring an original Bill to fet afide an
Order made by the Court ; that the prefent Bill was
the lefs to be countenanced, in that there had been
fo many Orders made by every fucceeding Lord Chan-
cellor or Lord Keeper, upon every Demife of the
Crown; fo that this Order of the i6th of Jimej
1599, had obtained the Sanction of many eminent
and learned Men, who had been iucceftively in that
great Office ; that in the Cafe of Orders made in
relation to Lunaticks, the Lords themlelves. will not

hear

io8 De Term. Pafcha, 173 1.

No Appeal }^^^^ ^^y Appeal, buc the fame muft be made to the

lies from an. ' r^ •( ri-ii r ~\

Order of tiie King in Council ; or which there was a recent j_Aj In-
^[j^^JjiJJ'ftance ; that where the Commitment of a Lunatick
ing Luna- is granted, the Court does not fo much regard the
H?ufeo°^ ^^^"^^^ of his Adminiftrator, as the Well-being and
Lords, but Comfort of the Lunatick himfelf, fo far as his Eftate
Kincr^n^ ^ ^vill allow, with a View that fuch Lunatick may live
Council. See gg eafily as his unfortunate Condition will admit of,
the Bottom, agreeably to his Circumftances.

. In Anfwer to which it was alleged, that the Bili
was brought to fet afide thele Orders, for the Fraud
and Collulion by which they had been obtained ; that
this Fraud and Collulion fufficiently appeared by the
Articles entered into by Mr. Juftice Dormer and Mr.
Sheldon, but feven Days before obtaining the Order;

which

[A] The following Extraft has been taken from the Lords Journals :
*' Die A'hrlis, 14 Fei. 1726. The Houfe (according to Order) proceed-
" ed to take into Confideration the Petition and Appeal of fVilliam Pitt^
" Efq-, and Samuel Pitt, iVIerchanr, complaining of two Orders made
" by the Lord Chancellor the 23d of December and 25th of January
" laft, granting the Cuftody of the Perfon of Samuel Pitt, a Lunatick,
" the Appellant's Uncle, as in the Appeal is mentioned; and praying,
" that the faid Orders may be reverted. And the faid Appeal being
" read by the Clerk, Notice was taken to the Houfe, that the Cuftody
*' of Ideots and Lunaticks was in the Power of the King, who might
" delegate the fame to fuch Perfon as he Ihould think fit. Whereupon
" the Lord Chancellor produced a Paper Writing under his Majcfty's
" Royal Sign Manual, intrufting his Lordfhip with the Care and Com-
" mitment of the Cuftody of Ideots and Lunaticks, and of their Per-
" fons and Eftates; and the Hime being read by the Clerk, it was
" moved, that the before-mentioned Appeal of the iiiid JFilliam Pitt
*' and Samuel Pitt might be received -, and after long Debate, and
" reading the Statute of the 17th of King Ed-ward the Second, De
" Prarogativd Regis of Ideots, cap. 9 £5? 10, the Qucftion being pur,
*' Whether this Appeal fhall be received ? It was relblved in the Ne-
" gative.

^Jhlcy Cowper^ Cler' Parliamentor*.

In Confequence of the above Refolution, an Appeal was brought be-
fore the King in Council, where, alter fome Debate touching the Ju-
rildiftion, the Matter of the Appeal was heard, and determined, May
I5,'i728. I

De Term. Pafchce, 173 1. 1 09

which Articles were concealed from the Court, and
appeared plainly to have been for (haring and dividing
the Lunatick's Eftate ; and that it was a moft extraor-
dinary Thing to give up Mr. Juftice Dormers Bond for
accounting : That not only an interlocutory Order,
but a Decree itlelf, if gained by CoUufion might be,
and frequently had been, fet afide even on a Petition,
by the fame Reafon that Judgments in Courts of Law,
when obtained unduly, and by Collulion, were every
Day fet afide on Motion ; that the Collufion of
granting (in the prefent Cafe) the Cuftody of the
Perfon of the Lunatick to Sir Robert Jenkinjon was
undeniably evident, it being at the fame Time well
known (a), and what muft be admitted, that the Lu-
natick was in Fa£l never in the Cuftody of any other
Perfon than of Mr. Juftice Dormer; that a Bill for an
Account as well lay againft the Committee of an Eftate
of a Lunatick, as againft the Aflignees of the Eftate of
a Bankrupt ; that the prefent Bill was the more proper,
becaufe, till the Death of the Lunatick, no Perfon had
a Right to any Part of the Lunatick's Eftate, nor
was confequently intitled to bring fuch Bill ; that the
fubfequent Orders made for committing the Lunatick's
Eftate to Mr. Juftice Dormer, fubje^l to account, and
his giving Security accordingly, were a tacit Waiver of
any former Order by which he might apprehend him-
felf to be a Committee without Account ; nay, that
a Grant by the Great Seal of the Cuftody of the
Eftate of a Lunatick [not an Ideot] without Account,
would be void in itfelf : So if fuch Grant were made
to the Ufe of the Grantee, quamdiu the Lunatick
ftiould continue a Lunatick, this were void ; Moor 4.
Frances's Cafe, ^ Hoh. 215; for it is contrary to the
Truft which the Law repofes in the Crown ; and in all
fuch Cafes the King is taken to be deceived in his
Vol. in. Ff Grant;

(a) See Vol. 2. 264.

no De Term. Pafcha, 17 5 1.

Grant ; that in the Cafe of a Lunatick, {qui gaudet
lucidis intervallis) the Law does not delpair, but takes
Notice of a Poilibih'ty at leaft, if not a Probability of
his Recovery, and therefore provides, that againft fuch
Time of his Recovery, whenever it fliall fall out, an
Account fhail be rendered to him, and Reftitution
made of his Eftate ; elle the Law itfelf would be al-
moft barbarous, and add AfHiftion to Afflidion ; that
fuppofe the Lunatick himfelf had recovered, and
brought a Bill for an Account, he muft have had
it; and furely his Adminiftrator has the very fame
Right.

Lord Chancellor : I do not fee any Fraud in Mr. Ju-
ftice Dormers having obtained this Order of the i5th
of June, 1599, or that the Court was furprifed in it:
There appears to have been an Order of Court to refer
it to the Matter to fee, what was the Lunatick's Eftate,
and how incumbred ; purfuant to which a Report was
made ; neither have I been able to difcover any Fraud
in Mr. Juftice Dormer's having got up his Bond. Then
fuppofing this to be fo, where fuch Order has been
made for the Allowance of the Profits of the Eftate
of the Lunatick towards his Maintenance, and this fo
often renewed by the Lord Chancellor and Lord Keeper
for the Time being; by which it is reafonable to fup-
pofe the Committee to have been induced to take the
lefs Care of the Accounts ; it would be extremely
hard, unlefs fome great Fraud were made to appear,
to oblige fuch Committee, and much more his Execu-
tors or Adminiftrators, to account or refund. I admit
The King's the King or the Great Seal cannot grant a Lunatick's
Lunatick's^ Eftate without Account; but as the Lord Chancellor
EftaK with- H^ay make what Allowance he pleafes for the Mainte-
is void ; but nance of the Lunatick ; fo, fuppofing the Eftate to be

the King or

Lord Chancellor may allow fuch an j early Maintenance to a Lunatick, as amounts to the

yeaily Value of the Lunatick's Eftate.

2 500 /.

De Term. Pafchce, 175 1. in

<>oo /. per Annum, or looo/. (and in the Cafe of a
Baronet, as the prefenc Cafe is) the Court may allow-
as great a Salary as the Income of the Eftate amounts
to; in fome Caies, where the Income is very narrow,
the Whole may be little enough.

Now this being a DifFerence in Form only, that
the Allowance of the whole Profits (in exprefs Terms)
is not good, but the Allowance of fuch an yearly Sa-
lary as amounts to the whole yearly Profits, is good ;
it is not reafonable fuch a Miftake in Form fhould lub-
je£l the Committee or his Reprefentative to account
for or refund what has been received under the Com-
mitment. Mr. Jurtice Dormer does not feem to have
waived the Benefit of thefe Orders for his Allowance
on Account of Maintenance, by having accepted the
fubfequent Orders for the Commitment of the Luna-
tick's Eftate, on his fubmitting to give Security to ac-
count, or by having aftually entred into fuch Security ;
becaufe this is neceftarily incident to fuch Committee-
fliips. I admit even a Decree, much more an inter- a Decree
locutory Order, if gained by Collufion, may be fet ^^^ J^^
alide on a Petition ; a fortiori may the fame be fet be fet afide
alide by Bill. The principal Cafe feems to be very hard aJweii asV
on the Defendant's Side ; but let the Plea ftand for an Judgment
Aniwer without Liberty to except. [BJ Motion; a

fortiori may
[B] It appears from the Regifter's Book, that on Motion it was f^ch Decree
alleged, that the Matters in Difference were compromifed; it was there- 1'^^ n^f
fore prayed, that the Plaintiff's Bill might ftand difmiffed without Cofty, ^' ' "
which, on hearing Counfel for the Defendant, who confented thereto,
was ordered accordingly, Feb. 27, 1732.

The Cuftody of a Lunatick may be granted to a Feme Covert, tho'
Ihe be not fui Jtiris, but under the Power of her Hufband. By the
Lord Prtr^fr, Ex parte Kingsmill, Michaelmas ly 20.

One through a great Age being deprived of his Memory, and be-
come almoft Non compos mentis, was admitted to anfwer by his Guar-
dian, in Regard the Demand in Queftion was but fmall ; but had the
Value been confiderable, the regular Way had been to have taken
out a'CommifTion of Lunacy, and have gotten a Committee affigncd.
By tlie Lord Talbot, Michaelmas i-j22- Anonymus.

Woolcomb

iiz De Term. Pafcb^, I73i-

Cafe 24. Woolcomb verfus Woolcomb,

Lord Chan-

ttlT O^^ ^^""'^^^ ^° ^'^ ^^'^^ ^'^ ^'^ Houfliold Goods
aii^m/houfe- ^^ and Other Goods, Plate and Stock within Doors
hold Goods ^^^ without, and bequeathed the Relidue of his Per-

and other f.-i . n- iii

Goods, fonal Eltate to J. S. The Qiieltion was, whether the
^tol'^hc Teftator's ready Money, Caili, and Bonds, ftiould pafs
Refidue of to thc Wife by thefe Words ?

my Perfonal

Eftate to B ; the ready Money and Bonds do not pafs hy thc Word Gcodsj for then the Bc-

queft of the Refidue would be void.

It was contended, that the De\rife of all the Tefta-
tot's Goods fliould carry all his Perfonal Eftate, omnia
Bona being Words of the largeft Extent and Significa-
tion, with Regard to Perfonals.

To which it was anfwered, that if the Devife of all
the Teftator's Goods were to be taken in fo large a
Senfe, it would then fruftrate and make void the Be-
queft of the Refiduum, which would not be allowed ;
that it feemed reafonable the Words other Goods fhould
be underftood to fignify Things of the like Nature
with Houlliold Goods, to the End the whole Will
might have its Effe£l ; and confequently, that the Te-
ftator's ready Money, Calli, and Bonds, fliould not, in
this Cafe, pafs by the Word Goods^ but fliould go to
the Refiduary Legatee j and of this Opinion was the
Lord Chancellor.

D E

Term. S. Trinitatis,

1731-

Willing verfus Baine. cais-

Lord Chan-
cellor King.

A By his Will devifed 200 /. a-piece to his Children, One gives a
^ payable at their refpedive Ages of Twenty-one ; 2oS!^a-piece
and if any of them died before their Age of Twenty- to his Chii-
one, then the Legacy given to the Perfon fo dying, a[^"i^^anj^
to go to the furviving Children. He devifed the'fanyof
Reiidue of his Perfonal Eftate to A. B. and C. (being fore 21, then
three of his Children) and having made them Execu- ^^^ ^^s^fY

J.J ' " given to him

tors, died. fo dying, to

go over to
the furviving Children. One of the Children dies in the Life of the Teftator ; though this
Legacy lapfes, as to the Legatee dying under 21, yet it is well given over to the furviving
Children.

One of the Children died in the Teftator's Life-
Time, and after the Tellator's Death one of the Exe-
cutors and Reliduary Legatees died. Upon this two
Qiieftions arofe, Jirfl, Whether the Legacy of the
Child that died in the Life of the Teftator thould go
to the furviving Children, or fhould be a lapfed Le-
gacy, and fink into the Surplus? 2^/y, Whether, when
one of the Executors and Refiduary Legatees died, his

Vol. III. G g Share

114 J^<^ Term. S. Trinitatis, 17 3 1.

share of the Refiduum belonged to his Executor, or
to the lurviving Reiiduary Legatees?

As to the firft it was objefted to be the conflant
Rule, that if the Legatee dies in the Life of the Te-
ftator, this Legacy lapfes, which rook in the prefenc
Cafe ; for here the Child, the Legatee, died in the
Life-Time of the Teftator : That it was true, there
was a Denfe over of the Legacy, in Cafe any of the
Children fliould die before their Age of Twenty-one ;
but fuch Claufe could not take Place in the prefent
Cafe, becaufe there can be no Legacy, unlets the Le-
gatee furvives the Teftator, the W'ill not fpeaking till
then ; wherefore this muft only be intended, where the
Legatee furvives the Teftator, fo that the Legacy vefts
in him, and then he dies before his Age of Twenty-one.

On the other Side it was faid and refolved by the
Court, that the Rule is true, that where the Legatee
dies in the Life of the Teftator, his Legacy lapfes,
(i. e.) it lapfes as to the Legatee fo dying ; but that
in this Cafe the Legacy was well given over to the
furviving Children ; for which 2 Fern. 207. Miller ver-
fus Warren was cited, where there was a Devife of a
Legacy of i 500/. to A. payable at his Age of Twenty-
one, and if A. died before, then to B. On ^.'s dying
in the Life-Time of the Teftator, though this was
never a Legacy with Refpe£l to A. but lapfed as to
him, by his dying in the Life of the I'eftator, ft ill ic
was held to be well devifed over. So in the Cafe in
2 Vern. 611. of [A] Ledjume verfus Hickman. In like

Manner,

[A] In the Cafe of Ledfome verfus Hickman, which was much the
Time with the principal Cafe, according to our Author's Report of it,
the Lord Coivper, both on the Demurrer, and afterwards on the Hear-
ing of the Caufe, was clearly of Opinion, that the Devife did not take
Effeft to the two furviving Daughters, as a Remainder or a Devife over,
but as an original Devife, on the Contingency of one of the Devilccs
I dying

De Term. S. Trijtitatis, 1731. II9

Manner, if Land were devifed to A. and if A. ftiould
die before Twenty-one, then to B. on A.'% dying in the
Life of the Teftator, and before Twenty-one, this would
be a good Devife over of the Land to B.

With Refpe6l to the fecond Point, it was contended, One devifas
that it being the Cafe of a Legacy, and merely out of^hirptrfo-
of a Perfonal Eftate, the Conftruftion of the Spiritual nai Eftate to
Court ought to prevail: Now that does not allow ofcuVrs- this'
Survivorfhip ; but takes Care that the Benefit of the '^ajointBe-
Devife fhall be equal, as was intended by the Tefta- onti4i)eath
tor; which Intention feemed here to have been in Part "^ °"^' '^*'^
complied with, by the Executors having divided amongft Survivors,
themfelves what had been already received. And Sir gJ^^J'^'"'*'*
Thomas Jones i ^o. Baflard verfus Smkeley, alfo i Chan. Legacy, as
Cafes 258. Cox verfus ^antock, were cited for this Pur-°
pofe.

But it was held by the Court, that there might be a
joint Legacy, as well as a joint Grant ; and that, as
the Executorlhip furvived, there was the fame Reafon,
why the Devife of the Reliduum (hould do £o too ;
that the Cafe in i Chan. Cafes, is mentioned in the Book
to have been dilTatisfailory to the Bar, and to have been
reverfed on a Rehearing j and the Cafe cited afterwards
in the fame Book, from z Roll. Ah. 301. is plainly
againll Law ; that a Will coming into Weflminfler-Hall
to be conftrued, ought to be determined according to the
Rules of the Common Law. Wherefore it was de-
creed [B], that the furviving Devlfees of the Reliduum
Ihould have the Benefit of fuch Surplus, except as to
what had been received and divided.

dying within Age-, and that, agreeably to what 'Lord King declared in
the above reported Cafe of fFilling verfus Baine, this would have been
■good, had it been in the Cafe of a Devife of Land.

[B] See the Cafe of Webfter verfus JVebJler, Vol. 2. 347. but more
particularly that of Cray verfus JVillis, Vol. 2. 529. and Sir Jofeph Ji-
kyWs, Argument on this Point.

Mr,

11 6 De Term. S. Trinitatis, 173 1.

^^^''^^- Mr. Herberts Cafe.

Sir Jofeph
Jekyll, Ma.

■£// '*' IV/f '^^ ^^^^^'^ ^^'^^ ^" Infant of about eighteen Years
Marrvino- of Age, and feifed of an Eftate of 1200/. ^^

an Infant Annum j and in a Caufe depending in this Court, the
Court,°isa^^uardianfhip of the Infant was committed to the
Contempt, Cuftody of Sir Thomas Claries, as his Guardian ap-
Pa°rtiescon- pointed by the Court. Mr. Herbert, the Infant, was
TTm" ^° ^^^ Univerfity of Oxford ; from whence coming

riage had to Town upon fomc Occallon, he was drawn in to
"hat^the'Tn- ^^^^Y ^ common Servant Maid, older than himfelf,
fant was a and of no Fortune. One Philips, a Parfcn, married
Court.°^ ^^ f ^^"^ 5 and he had feveral Blank Licences under the
Seal of the proper Officer, which were ufed to be filled
up by the faid Philips-, and one Williams, who pretended
to be a Counfellor at Law, took upon him to be
Guardian to the Infant, and to confent to his marry-
ing this Servant Maid. Wherefore, being ordered to
attend his Honour the Mafter of the Rolls, it was in-
lifted, by way of Excufe, by the Parfon and Williams,
that they did not know Mr. Herbert was a Ward of
the Court, and not knowing it, could not be guilty
of a Contempt of the Court. And with Regard
to the Filling up the Blank Licences, this was endea-
voured to be juftified by alleging it to be the common
Practice. The Matter having been for fome Time de-
• bated, was adjourned over for further Coniideration,
Afterwards, on this Day (a) the Parties again attend-
ing, it was urged, that there had been feveral Caies,
where it did appear, that thofe who had drawn in
Infant Wards of the Court to marry, and had been
inftrumental in bringing about fuch Matches, although
they did not know, that the Ihfants were in Wardlhip
to the Court, had yet been held guilty of a Contempt,

(a) July 21.

De Term. S. Trinitatis, 1 73 1. 1 17

as in the Cafe of Mr. Willis (C) who married the
Daughter and Heir of Sir Edward Hannes, where the
Parfon that married them, and other Allilbnts in the
Marriage, were committed and lay long in Cuftody. So
in the late Cafe of Mr. C^far of HertfordfJnre, who
married Mrs. Long^ a Ward of the Court, where Mrs.
Cremer and her Daughter, the Contrivers of the Match,
were examined on Interrogatories and committed,
though it did not appear, that in either of thefe Cafes
the Parties were apprifed of the Lady's being a Ward
of the Court ; and as to the Blank Licences, though
this was admitted to be an ufual Pra£lice, yet the fame
(it was faid) ought highly to be difcountenanced, as
tending to promote unfuitable Matches.

Mafler of the Rolls: With Regard to what is alleged
by way of Excufe, that the Parfon and the pretended
Guardian had no Notice of the Infant's being a Ward
of the Court; it is to be obferved, that the Commit- Aas of the
ment of the Wardfliip to Sir Thomas Clarges was an A61 JJe"com-
of the Court, and in a Caufe then depending, of which mitmentofa
every one at his Peril is concerned to take Notice, in and "^in T
the fame Manner as of a Lis pendens. Surely it may Caufe de-
be as well prefumed every one is apprifed of the Pro- be taken
ceedinps of this Court, as that all Executors (hould be ^"^"''^ °*^y
prefumed to take Notice of all Judgments even {b) in his Peril.
the inferior Courts of Law, and therefore are not to
pay Bonds before fuch Judgments, but at their Peril.
In the Cafe of a Writ of Ravifliment of Ward brought
by any Sub]e£l, it is no Excufe for the Defendant to
fay, he did not know the Party was a Ward of the
Plaintiff's ; and if this be fo in a private Cafe, a for-

Vol. III. H h tiori

[C] See this Cafe cited by the Ma/ier of the Rolls in the Cafe of Mr.
Juftice Eyre and the Countefs of Shaftsbury, Vol. 2. ii2. where it is
obferved, that Mrs. Hannes was not taken (as here) from a Guardian af-
figned by the Court.

{b) See the Office of an Executor, cap. 12,

Ii8 De Term. S. Trinitatis, 173 1.

tiori will it hold, where the piiblick Juftice of the
Court is concerned. Befides, where the Marriage of
an Infant is encouraged without the Concurrence of his
real Guardians or Relations, the Confequences of fiich
Marriage ought to be at the [D] Peril of all thofe that'
are inftrumental therein. If aftual Notice of the In-
fant's being a Ward of the Court were neceflary, then
thefe Offences would be continually pra6lifed with Im-
punity : For it would be an eafy jMatter to put other
People not really privy to the a61s of the Court (in
committing the Guardianfhip of the Infant) to tranfa6l
and bring about the Marriage ; for which Reafon, if
the Circumftances of the Marriage are fufpicious (as in
the preient Cafe they unqueflionably are, where one
a£l:s as Guardian of the Infant who never appears to
have known him before, and a£ls too not for the Bene-
fit, but to the Prejudice and probably to the Ruin of the
Infant) in fuch Cafe (I fay) all the Parties to the
Tranfadlion ought to be feverely cenfured for Exampls
fake, and to deter others from the like Offences.

AParfonob- ^ud as to the blank Licences for marrying; his
Licences for Honour faid it was a very ill Praftice, and that it
"d^'^'th' ^^^^^^ to him fuch a Licence was void ; that at the
Seal of the Time of its being fealed by the Officer it was plainly
proper Offi- £-q bging with Blanks ; and if void when the Seal was

cer, and ^^- .^ . r- , , i r

terwards fills put to it, the fame could not be afterwards made good
lheTar?void by ^^^^ Parfou's filling up the Blanks with Names; for
notwith- then it w^ould be the Licence of the Parfon, and not
^ "'^' of the Ordinary.

[D] One, not a Freeman of Lmdon, married a City Orphan ; and
though it did not appear tlie Party had any Notice of his Wile's being a
City Orphan ; yet it was held, fuch Perfon was punifhable by the Court
of Orphans : For every one is obliged at his Peril to inform himfclf
concerning the Perfpn whom he marries •, and here no Body is obliged
to give Notice, cofifcquently the Party mufl: at his Peril take Notice.
2. Lev. 32. I Vent. 178. King verfus Harjjood.

I D E

IIP

D E

Term. S. Hillarii^

1731

Coioper verfus Scot &' al\ ^''' '''•

Sir Jofcph
Jekyll, Ma-

^-jENRT Bedel, a Freeman of London, had one SonAy/'^'
•^ and fix Daughters, four of whom were married " '.' ,
jn his Lite-time, and advanced by Portions. Henry Lands to
Bedel made his Will dated M^ufi 17, 1727, and there- J/^'^^'i;;^^
by (having difpofed of his Perfonal Eftate, and like- within fix
wife of Part of his Real Eftate, to and amongft his^rT;^!;'
Children) devifed feveral Freehold Lands and Tene- tor'^ Death,
ments to certain Truftees and their Heirs, upon Truft pav'^^15'00 /.
that they fhould, mthin fix Tears after his Deceafe, raife J? '"''
and pay out of the Rents and Profits of the Premifles ^."dLw'ith-
1500/. a-piece to his two youngeft Daughters; andij**'^/'^
alfo out of the Rents and Profits of the faid PremilTes 1500/ (hail
pay Intereft at the Rate of 4 /. per Cent, per Ann. for l^ami^-Jra-
the faid i 500/. a-piece, until the fame lliould be paid, tor, here be-
for and towards their Maintenance • and Education. J"fn"Time
Mary, the youngeft Daughter but one, married very im- lin^'ted
providently to Effon, one of the Defendants, and died ^niy"the d-
vvithin the fix Years without Iftlie ; and her Hufband ''"'^f^ "T'""*
infifted to have the 1 500/. and Intereft paid to him as which, it
her Adminiftrator. ^^^^J^"

Agalnft

120 De Term, S. Hillarii, 1731.

Agalnft which it was objected, that this 1 500 /.
being payable within fix Years, could not be demanded
until the fix Years were expired ; that it was the fame
as if it had been laid at the End of fix Tears^ and being
a Charge upon a Real Eftate, it ought now to fink
therein. Neither was the Cafe altered by the Daugh-
ter's having married within the fix Years ; efpecially
fince the Hufband had made no Settlement, and was fo
unfuitable a Match for her. For which was cited
2 Vcrn. Si-j. Carter verfus Bktfo, where a Man feifed
in Fee devifed Lands to his eldeft Son in Fee, with
Directions, that his eldell: Son fhould pay out of the
Lands to the Teftator's Daughter Mary, 2C0 A at her
Age of twenty- one, with 4 /. per Cent, per Ann. for
Maintenance in the mean Time. Mary married, and
died before twenty-one, whereupon the Hufband, as
Adminiflrator to his Wife, brought a Bill for the 200 /.
But decreed, that the Hufband had no Right thereto,
becaufe by the Will there was only a Direftion to the
Son to pay the 2C0 /. to the Daughter at her attaining
twenty-one, until which Age nothing veiled.

Scd per Cur : The Payment of this i 500 /. is not
appointed to be at the End of fix Years, but to be
made out of the Rents and Profits within fix Years,
i. e. The Truflees are to pay it within that Compafs
of Time, if it can be raifed out of the Rents and Pro-
fits. So that here is no precile Appointment when it
is to be paid, but the fix Years are mentioned as the
(a) ultimate Time for that Purpofe ; in the mean
T^*^^iI^,ro vvhile it is to be paid as much fooner as it can. In the

J^anus are r

charged with great Cafe of (h) Evelyn verfus Evelyn, lately deter-

Portions, • j

and no Time mineCl,

appointed for Payment, the Right to the Portions vefts immediately.

(a) See the Cafe of Wilfon verfus Spenfer poft, where the Lord King
made the like Determination.

{b) Vol. 2. 603. I

De Term. S. Hi I I aril, 173 1. iii

mined, it was the unanimous Opinion of the Court, I
mean, of the Lord Chancellor, the Lord Raymond and
myfelf, that if a Portion be to be ralfed out of Rents
and Profits, and no Time mentioned for the Payment,
it is payable preiently, and becomes an Intereft vefted,
Gonfequently it will go to Executors, ^c. So, long
before, in the Cafe of Earl {c) Rivers verfus The Earl of
Derby, it was decreed, that where a Portion was given
to a Daughter, and no Time limited for the Payment
thereof J on the Daughter's dying before Marriage or
twenty-one (vi^. at her Age of feventeen) it was a
vefted Intereft in fuch Daughter : Wherefore, this being
a Rule fo fettled, his Honour would not fufFer it to be
further debated. But with Regard to the Intereft of
the 1 50c /. that being deligned for the Maintenance of
the Wife, and ftie being dead, it was ordered there
Ihould be no Intereft paid from the Death of the Wife.

The next Qiieftion upon the Will was ; the Teftator I devife
had appointed that the Truftees fhould, out of the Rents ^°°/'t<f'^y
and Profits of his Eftate, raife and pay unto his only^Son A. and
Son, H^nry Bedel, and Dorothy his Wife, over and above t^eir r'cfpec-
XV hat he had before given them, lOo/. per Ann. du-t'^e Lives i
ring their refpeflive Lives, 60 /. per Ann. of which to be paid to
100/. per Ann. fhould be paid to the Son's W^ife ^o^ Jh^Yu^^^^"/
the better Support of herielf and Daughter ; the re- of herfeif
maining 40/. per Ann. to go to the Teftator's laid Son ; g^^ Jj^^^^ _

the Son died in the Teftator's Life-time. the remain-

ing 40 /. to
my Son, The Son dies ; his Wife (hall have the whole lOO /, per Ann.

Whereupon it was now infifted, that the Son's
Widow fhould have but 60 /. per Ann. and not the
100/. per Ann. for that the latter Claufe of the W^ill
imported a Diftributlon how the i co /. per Ann. was to
be paid : Namely, 60 /. to the Wife, and 40 /. to the

Vol. IIL I i Huftjand,

Ill De Term, S, Hi liar it, 173 1.

Hufband, juft as if the Devife of the i co /. had been
to the Son and his Wife for their Lives, Habendum 60 /.
per Ann. Part thereof to the Wife, the Remaining 40/.
per Ann. to the Son. Or, as if the Teftator had de-
vifed 1 00 /. per Ann. to his Son and his Wife for their
Lives, that is to fay, in Manner following : 60 /. per
Ann. to the Wife, and the Remaining 40 /. to the Son ;
which latter Words were therefore explanatory of the
former, like the Cafe where a Devife is to A. and his
Heirs, Habendum to A. and the Heirs of his Body.
There the latter Words {di) explain what Heirs are
meant. And it was obferved, that the 60 I. per Ann,
given to the Wife was not made payable to her during
the Coverture, or during the joint Lives of her and her
Hufband ; but generally, and fo muft be intended for
her Life, as any general Devife or Grant muft be
taken to be for the Life of {e) the Devifee or Grantee.

Sed per Cur : Though this Claufe be unf^ilfully
penned, yet it is plain and exprefs, that the Teftator's
jSon and his Wife fhould have an Annuity of 1 co /.
per Ann. for their refpe£live Lives, and fuch exprefs
Devife is not to be controlled by Words that are doubt-
ful, and barely capable of another Confl:ru6lion. The
Teftator may well be intended to have meant, that
during the Coverture, 60 /. out of the i co /. per Ann,
ftiould be allowed for the Maintenance of the Wife
and her Daughter ; and not that the Daughter's
Maintenance fhould remain a Clog on the Wife du-
ring her Life, if (he fhould happen to furvive her
Hufband, and when probably her Daughter would
have had another Provifion fallen to her on the Death
of her Father, as in Fad fhe had.

{d) I Inft. 21. b. {e) I Inft. 42.

X, Another

De Term. S. Hillarii, 1 73 1. II3

Another (\iefi:ion was, whether Ann, the yonngeft A Freeman
Daughter, who was married to one Mr. Scrle, might ^is win '^
not claim her i 500 /. given her by the Will out of the charges
Real Ertate, and alfo her Orphanage Part ? hfs°Reai e-

Ihte for his
Daughter, and alfo gives her 1500/ out of his Perfonal Eftate. The Daughter would take
the 15CO /. out of the Real Eftate (as that is not within the Cuftom) and alfo claim her Or-
phanajie Part: But the Court, in Regard the Teftator had difpofed of all his Real and Per-
fonal Eftate among his Children, and intended an equal Divifion, would not fufFer the
Child to difappoint her Father's Will, but compelled her to abide intirely by the Will, or by
the Cuftom.

For which Purpofe it was urged, that as the Real
Eftate of the Freeman was quite out of the Cuftom,
fo the Orphan might claim that, or any derivative
Charge or Intereft thereout, over and above her Or-
phanage Part. And therefore, if a Freeman advances a
Child by a Real Eftate, and dies ; this is not to be
taken as any Advancement, but fuch Child ftiall have
his full Orphanage Part beftdes. Nay, the turning the
Perfonal into Real Eftate, though with a Declaration
at the fame Time that it is done purely with a (/)
View to evade the Cuftom, will yet be efFe£lual for
that End ; that this was ftill ftronger as to the Lands
of Inheritance devifed afterwards in this Will to the
Daughter in Tail, all which (he might well claim, and
alfo her Orphanage Part ; for it could not be called a
breaking into the Cuftom, to claim that with which
the Cuftom had nothing to do ; and if the youngeft
Daughter might have thefe and hkewife her Orphanage
Part, her Share of the latter would come to much
more than the Shares of her elder Sifters who had re-
ceived Advancements from their Father on their refpec-
tive Marriages, which the youngeft had not.

Sed per Cur' : It appears upon this Will, that the
Teftator intended to make equal Provifions for all his

Children,

(f) See the Cafe of BahiHgton verfus Greenwood, Vol. i. 530.

124 De Term. S. Hi liar it, 1751.

Children, efpeclally in Cafe his Son Ihould die without
liTue Male, which has happened in his Life-Time : He
gave an Eftate in Land to each Daughter ; he inore-
over gave to his Son, and alfo to his lix Daughters, a
feventh Part to each of his Perfonal Eftate, intending
thereby an equal Divilion of all his Eftate amongft his
Children. Wherefore, if any of the Children fliall go
about to difappoint fuch Intention, and prevent that
Equality which the Will defigned, fuch Child fliall be
excluded from taking any Benefit by the Will, as well
with Refped to the Real, as the Perfonal Eftate; and
not be allowed to eleft what he likes beft by the Will,
and intitle himfelf to the Reft by the Cuftom, but
muft abide by the Will only, or by the Cuftom only :
And the Difterence is, where the Will makes a Difpc-
lition of the [a] whole Eftate, both Real and Perfonal,
of the Teftator amongft his Children ; and when it
•gives Land and fome Share of the Teftamentary Part
to a Child, who, in fuch Cafe, may lay Claim thereto,
without crofting the Reft of the Will. But wherever
the Child's Claim by the Cuftom tends to fruftrate and
defeat the Intention of the Father, in all fuch Cafes
he fliall not be fuffered to take any Part by the Will,
either of the Real or Perfonal Eftate, if at the fame
Time he would avail himfelf of the Cuftom.

ciii'idren^ 7 The laft Point of the Cafe was ; the Teftator Bedel
makes an had devifed all his Perfonal Eftate in Sevenths, {yi^)

Executor in

Truft, and devifes to each Child one Seventh of his Perfonal Eftate ; one of the Children
dies in his Life-Time, and one of the 6 furviving Children has been advanced by the Fa-
ther In his Life-Time j yet this Child fliall take his full Share of the feventh Part, witliout
bringing what he had before received, into Hotch-pot.

[A] If the Freeman gives a Legacy to his Child, and difpofes of his
whole Perfonal Ellate, the Child ftiall not have both the Legacy and
the Orphanage Part, even though the Legacy does not exceed the dead
Man's Part : Sectis^ if the Legacy be given exprefly out of the Tefta-
mentary Part. Hender verfus Rofe^ at the Rolls, July 4. 171 8, and Fr£-
dcrick verfus Frederick, Vol. i. 722. But in no Cafe fhall the Child
be obliged to make his Eledion, till after the Account taken. Hender
verfus Rofe, ubi fupra.

2 one

De Term. S. Hi liar it, 173 1. 119

one Seventh to each Child ; after which his Son, being
the eldert Child, died in the Tettator's Life-Time, and
then the Teftator died, by which Means the Son's Se-
venth became diftributable according to the Statute, the
Executors being declared by the Will to be but Truttees ;
and four of the Teftator's Daughters being married, and
having been advanced by their Father in his Life-Time,
it was therefore contended, that this Seventh, which
was the Son's Share, becoming diftributable according
to the Statute, the four Sifters, who had been advanced
by their Father in his Life-Time, ought to bring their
Portions into Hotch-pot ; for if the Children are within
the Statute as to one Claufe, they muft be withiii ic
as to every Claufe thereof.

Sed Curia contra: Though this feventh Part devifed
to the Son, did, by his dying in his Father's Life-Time,
for Neceffity's Sake become diftributable according to
the Statute, yet I take this not to be in Stri£lnefs
within the fame ; becaufe here is an Executor, and
therefore the Teftator cannot be faid to have died In-
teftate ; though, it is true, the Executor being but a
Truftee, is, by an equitable Conftru£lion, and by
Means of an Accident that has happened fince the
Making of the Will, a Truftee for the next of Kin
according to the Statute. However, this is (as I faid)
merely through Neceflity, and becaufe no one elfe can
take : But as to Children who were advanced in their
Father's Life-Time, bringing fuch their Advancements
into Hotch-pot, that is to be only in the Cafe of a
total Inteflacy, or where the whole Perfonal Eftate,
not where Part only, and that perhaps but a very fmall
Part, (as here) becomes diftributable ; neither would it
be realonable for the Children fo to do. And ic is
obfervable, that Mr. Lutwyche, who was of Counfel
with the deceafed Daughter's Huflsand, and whofe Cli-
ent's Intereft it was, to have the Advancements of the

Vol. in. K k four

12(5 De Term. S. Hi//arii, 1731.

four married Daughters brought Into Hotch-pot, gave
up the Point, faying, it had been fo adjudged in Sir
George Wheelers Cafe.

c^t 28. Ea/l &f Maria Ux verfus Thorubury,

Sir Jofeph
Jekyll, Ma-

jhrof the I "HE Bill was to recover the Arrears of the Intereft

■*- of a Legacy of 300/. after the principj;! Legacy

covered for a paid, and a Receipt given for the fame. The Cale was

Legacy, tho' ^[^yg . Q^g Thomas Thornhrv jiave by his Will to his

after a Ke- . '-'..■' ^

ceipt given Niecc Mary Thornbmy, now the Wife of the PlainrifF
t'l'c^Letc ^^fl-> ^ Legacy of 3C0 /. payable a Year after his
andtheprin- Death, and made his Brother Thomas Jlmrnbury^ and his
pmdl ^^"""^^ Nephew the Defendant Thomas Thornhury^ then an In-
fant, Executors. Thornbury the Elder Executor, died,
and the Defendant the Younger, being but nine Years
old, Adminiftration with the Will annexed was granted
during his Minority.

The Plaintiff Mary marrying the other Plaintiff Eafl,
they demanded their Legacy of the Defendant, who
defired them to let it continue in his Hands for abouc
two Years longer, and paid Intereft for the firft Year
after the Marriage, taking the Plaintiff's Receipt for
the fame, as for a Year's Intereft due on the 1 3 th of
Aprilj 1722, (being a Year after the Marriage) and
afterwards another Year's Intereft growing due, the
Defendant paid that Year's Intereft and the whole Prin-
cipal, taking a Receipt from the Plaintiff for i 5 /, being
a Year's Intereft due for the Legacy of 3 00 /. to the
13th oi April, ^1^1^ at which Time the Plaintiff gave
the Defendant a Receipt for 300/. left to the Plaintiff
Mary by her faid Uncle's Will.

After feven Years Acquiefcence, the Plaintiff de-
manded of the Defendant the Intereft for the laid

2 300/.

De Term. S. Hillarii, 175 1. 12.7

300/. Legacy from the End of the Year after the
Teftator's Death, which happened in 1707, infifting
by the Bill, that the Plaintiff by Miftake took the faid
Legacy to have been made payable by the Will at the
Marriage of the Plaintiff bAary ; whereas it now ap-
peared thereby to have been payable a Year after the
Teftator's Death.

For the Defendant it was urged, that there was no
Pretence of Fraud on his Part, no Concealing of the
Will which gave the Legacy, no Miiinformation by
the Defendant that the Legacy was not payable until
the Marriage ; that the Will had been proved in the
Spiritual Court, where the Plaintiff was at Liberty,
when he pleafed, to fee it ; and as this Legacy was
Part of the Wife's Portion, and the Plaintiff a Barrifter
at Law, it muft be prefumed he had feen it ; that the
Receipts appeared to have been drawn by the Plaintiff
himfelf, who delivered them to one who brought the
Money from the Defendant, in the Defendant's Ab-
fence ; that Interelf was pretty much in the Breaft of
the Court, and might be waived by the Plaintiff, if
he pleafed. And it was compared to the Cafe of a
Noie given for a certain Sum, which carries Intereft
from the Demand, though not expreffed in the Note,
and for which the Jury every Day give Intereft : But
if the Perfon to whom fuch Note is given, will ac-
cept of the Money without Intereft, it would be very
ftrange to bring a Bill in Equity, or A6lion at Law,
for the Intereft only ; and yet that were a ftronger
Cafe, being the Cafe of Intereft for a Debt due, which
ought to be more favoured than Intereft for a Legacy,
which is a Bounty.

Alfo it was faid to be like the Cafe, where a Te-
nant having a Right to deduft for the Land-Tax, does
not however dedu6l, but pays his full Rentj under

which

128 De Term. S. Hi/Iarii, 175 r.

which CircLimftances, a Bill will [B] not He in this
Court to recover back the Tax, which ought to have
been before allowed ; for the Tenant might, if he plea-
fed, waive dedudling the Tax, and fo might the Plaintiff"
waive the Benefit of the Intereit of his Legacy.

Sed per Cur : It is plain, Intereft for the Legacy
was due : There is a certain Time appointed by the
Will which gives it, (i;/;^.) that it iliould be paid within
a Year after the Teftator's Death. And as the Plain-
tiff had a clear Right thereto, fo he has done Nothing,
for ought appears, to waive fuch Right. The Defen-
dant himfelf admits the Intereft has not been paid,
which, it is to be prefumed, was occalioned by the
Plaintiff's having apprehended, that it was not due till
after the Plaintiff" Mary's Marriage ; wherefore, as the
Intereft is due, and admitted by the Plaintiff" not to
have been paid, and was not intended to be waived,
decree the Defendant to pay the Arrears of Intereft
from the Year after the Teftator's Death, with Cofts
of Suit.

[B] So held by the Lord Harccurt, in the Cafe of IVildey verfus ^e
Coopers Company, Michaelmas, 1713, where the Bill was brought by a
Tenant to be relieved out of the Airears of Rent for the Taxes the
Tenant had acftually paid, on Account of Rent referved to a Charity
that appeared to be exempted from Taxes; and the Bill was difmiffed
with Cofls. But more particularly in the Cafe of Atwood verfus Lam-
prey, heard at the Rolls before Sir Jofeph Jekyll, Michaelmas, 17 19,
where the Cafe was, One in 1683, in Satisfadion of a Widow's Dower,
mortgaged Land on Condition to pay her 20/. per Annum; whereupon
the Court held, that this, being an annual Payment fecured by Land,
fhould anfwer Taxes in Proportion as the Land paid ; but refufed to make
. the Annuitant refund in Refped of the Payments Ihe had received Tax
free, and for which the Party paying had omitted to deduct.

D E

129

D E

Term. S. Michaelis,

1731

Ojmond verfus Fitzroy & Ducem de^^^^'^^-
Clevelandy &' e contra, ^kltti^-

Jler of thi
Rolls.

H E Duke and Duchefs of" Cleveland, being about a Father in-
to fend the Lord Southampton, their eldeft Son, J^"f^^ ^'^
to travel beyond Sea, employed Ojmond., who was rent, then an
Plaintiff in the Original Bill, and Defendant in the J^Ica^g^^f
Grofs Bill, as a Servant to attend upon the young Servant.
Lord, then an Infant of about feventeen, and (as by ^^'^ ^^"^

r r r • ^ • ^\ comes of

the Anfwer 01 Ojmond it was admitted) to prevent his H^; the
being impofed upon. Afterwards, on the Lord South' takes a*Bond
amptons returning from abroad, Ojmond was continued ^''^^ t'le
in this Service, and, when his Lordfhip was about Bond 1^^-
twenty-feven Years of Age, prevailed on him to enter ""^ ^^°^
into a Bond for the Payment of 1000/. to him theand thciieir
faid Ofmond. The Bond was prepared by Ofmond, and ^^t ""V .

r r I V\ 1 r 1 whcrewith-

kept lecret irom the Duke and Ducheis. There were all to pay the
alfo fome Proofs of the weak Capacity of the young f^J^Jij^Jal
Lord, and that at that Time he was unable to raile fidetheBond
Money to pay off the Bond. The Original Bill was Jy ^^^1,",''^
to recover the Money on the Bond, which was alleged and a Breach

t-r rri- » I " ot Truft.

Vol. III. L 1 to

130 De Term. S. Michaelis, 1731.

to be miflald, and the Crofs Bill was to be relieved a-
gainft the Bond.

For the Defendant in the Crofs Caiife it was argued,
that if one who is at Law allowed to be Compos men-
tis, and confequently prefumed to know what he does^
intending to make a Gift or Benevolence, voluntarily
enters into a Bond without any Fraud in the obtaining
it ; though on the Obligor's Death it may be void a-
gainft Creditors, yet it will be good againft the Obligor,
and no Ground for Relief in Equity : That in the pre-
fent Cafe here was no Evidence of a want of Care,
much lefs of Fraud, in Ofmondy who was hired only
to take Care of the young Lord while an Infant and
during his Travels, which Truit was therefore now de-
termined.

A%eaicMan Sed pcv Cur' : Where a weak Man gives a Bond, if
Bond f if it there be no Fraud or Breach of Truft in the obtaining
be attended Jt, Equity wiU not fet afide the Bond only for the [A]
Fraud or Wcakncfs of the Obligor, if he be Compos mentis ; rvei-
Breach of tjjgj. ^\[\ j-j^jg Qourt uicafure the Size of Peoples Under-

I rult, -fc-- n J. . . . I • r I n-ii •

guity won't itandings or Capacities, there being no luch Thing as
Bo^d'^onii^^" equitable Incapacity, where there is a legal Capacity.
for the But if 3. Boud be infilled to hare been given for a Con-
the^Wigor, fi^^^ration, where it appears there was none, or not near
if hebe«;«-fo much as is pretended; Equity will relieve againft it.
Equ'kywiH ^" t^^ principal Cafe there appears to have been a
not meafure Truft rcpofed by the Parents in a Servant to take Care
dcrftandings ©f ^u Hcir, aud prevcut his being impoied upon ; and

or Capaci-
ties. No fuch Thing as an equitable Non compos, if compos at Law.

[A] The having been in drink, is not any Reafon to relieve a Man
againit any Deed or Agreemeni gained from him when in thofe Circum-
fiances ; for this were to incourage Drunkennefs ; /ecus if through the
Management or Contrivance of him who gained the Deed, &'c. the
Party from whom fuch Deed has been gained, was drawn in to drink. By-
Sir jo/eph Jekfil^ at the Rolls, John/on verfus M^Uott, May 29, 1734.

. ,2 the

De Term. S. Michaclis, 17 5 1. 131

the Servant, inftead of ailing agreeably to his Truft,
himfelf impofes upon him. As to what is objefted,
that the Truft was only to take Care of the young
Lord whilft an Infant or during his Travels ; the Truft
continued fo long as the Servant remained in the Ser-
vice ; and it is remarkable, that during his Infancy,
the Law took Care of this young Lord, who for that
Reafon did not want fo much the Care of another :
But when he was out of the Protection of the Law
by being of Age, then he ftood moft in Need of the
Care of the Servant. A Breach of Truft is of itfelf
Evidence of Fraud, nay, of the greateft Fraud ; be-
caufe a Man however careful otherwife, is apt to be off
his Guard when dealing with one in whom he repofes
a Confidence. The young Lord, by giving his Bond
for a Sum which he was unable to raife, fubjefted him-
felf to a Gaol, and looo/. was an exorbitant Gift,
for one who had no Means of paying it. The fecreting ![^^'Jn'or^"
the Bond from the Parents is alfo a further Evidence Age, ;

are un-

of Fraud, and young Heirs even when of Age, are ^"^^^^^^JJ*
under the Care of a Court of Equity. Wherefore this of Equity,
Cafe, though a new one, yet comes within the Rules ^a„t' i^"
that have been obferved in Equity ; and feeing the De- moft, the
fendant Osmond in his Anfwer to the Crofs Bill fets Ca^eoAkm
forth that the Bond in Qiieftion is miflaid, I decree '•'! '^^^"^
him to releafe the Bond. [B]

[B] On the 2 2d of June, 1734, this Caufe was reheard by the Lord
Chancellor Talbot^ when the Decree at the Rolls was affirmed, and the
5 /. Dcpofit ordered to be paid to his Grace the Duke q{ Cleveland.

U'lgden

i^z De Term. S. Michaelis, 1731.

Cafe 30. Higden £/ af verfus Williamfon,

Bankrupts.

jekyiifi- Caufe hy Confent.

Jhr of the

A contin- A ^^^^^^ '^1 Fee of a Copyhold Eftate, furrendered
gcntintereft, * the Prcmiffes to the Ule of his Will, and after-
;;\^S:'>Avards devifed them to his Daughter for Life, then to
rupt, is ai- Tiuftecs to be fold, and the Money arifing by the Sale
the"com-^ to be divided amongft fuch of his Daughter's Chil-
miflioners. dren, 35 fhould be living at the Time of her Death.

Devifc to ^

fuch of the The Teftator died, and the Daughter had Ifliie (among
?'if fhai'/ °^^^^^^) ^ ^0^5 ^^'ho ^^'^5 a Trader, and becoming Bank-
be living at rupt, the Commiflioners afligned over all the Bank-
5' h^s^iffue ^"P^'s Eftate. I'he Bankrupt got his Certificate allow-
B. who, be- ed, and then his Mother died.

coming a

Bankrupt, gets his Certificate allowed, after which A. dies ; this contingent Intereft is liable

to the Bankruptcy, forafmuch as the Son in the Father's Life-Time might have rcleafed it.

On a Bill brought by the Aflignees for the Bank-
rupt's Share of the Money arifing by the Sale, it was
objeiled, that no Manner of Right to this contingent
Intereft was vefted at the Time of the Affignment
made by the Commilfioners, any more than a Right
to Lands can be faid to veft in an Heir Apparent
during the Life of his Anceftor ', and the Cafe of Ja-
cohfon verfus Williams was cited, where it was held by
the Lord Corvper,, that the Poflibility of a Right belong-
ing to a Bankrupt was not affignable.

But his Honour, upon Debate, decreed for the Plain-
tifts, diftinguifliing the principal Cafe from that of
Jacobjon verfus Williams {a) ; for there the Hufbaod,
the Bankrupt, could not have come at his Wife's Por-
tion by the Aid of Equity, without making fome Pro-
I vifion

(iz) See Vol. r. 385, and the Noce there.

De Term. S. Michaelis, 1731. 153

vliion for her; and it was not reafonable the Aflignees,
who flood but in his Place, and derived their Claim
from him, fliould be more favoured. Alfo the A'lafler
of the Rolls faid, he laid his Finger, and chiefly
grounded his Opinion, on the Words of the Statute
of 1 5 £//:?:. cap. 7. fe6i. 2. which enafls, " That the
" Commiflioners fliall be empowered to aflign over all
" that the Bankrupt might depart withal." Now here
the Son might, in his Mother's Life-Time, have re-
leafed this contingent Interefl; fo that the Commif-
fioners, by Virtue of that Aft, are enabled to aflign it,
and confequently their Aflignees muft be well intitled.

Note; In Michaelmas, 17^2, this Caufe came on hy^Z^^'.""'

r 1 I r I X 1 ^t II • 1 cellor King.

way or Appeal berore the Lord Chancellor King, who
affirmed the Decree at the Rolls, partly for the Reafon
before given, (vi^.) becaufe the Bankrupt himfelf might
have departed with this contingent Interefl; alfo, for
that the Aft: of 2 1 Jac. i . cap. 1 9 . fe^. i . declares,
that the Statutes relating to Bankrupts fliall in all
Things be largely and beneficially expounded for the
Relief of Creditors : And further, becaufe the Statutes
for difcharging Bankrupts on Certificates, never in-
tended to intitle the Bankrupt to any Eftate by Virtue
of any Claim anterior (as his Lordlhip expreffed it) to
his Bankruptcy, as the Title in Qiieflion clearly was;
befides, the Word Poj]ibility is in all the [C] latter Sta-
tutes touching Bankrupts.

[C] See the 5 Geo. 2. cap. 30. the Words of which are, " All fuch
" Effcds, of which the Party was poOefiTed or interefted in, or whereby
" he hath, or may exped, any Profit, Poflibility of Profit, Benefit or
*' Advantage whatfoever."

Vol. III. Mm D E

134

D E

Term. Pafch^,

1732.

Cafe 31. 'John Gordon, Adminijlra-

tor of Barbara his /^/^ ^Plaintiff.

Wife',

Lord Chan-
cellor King,
Lord Chief
yujlice Ray.
mond, Ma-

-tif" Henry Raynes, DoBor of]

Laws, eldefi Son and \t\^c a
Hetr of Str Richard
RayneSy Knt,

Term of ' | ^HE Bill vvas, to compel the Railing of the Sum
to°fecure"* JL ^^ 5oco /. foF the Portlon of Barbara the Plain-
Daughters tiff's late Wife, and the only Daughter and Iffue of the
payable at Defendant Doflor Raynes, by Elizabeth his late deceafed
^'To ^r' ^^^^^ » ^^^ ^^ ^^'^^^ ^^ out of a Reverfionary Term of
Daughter at 1000 Years, expectant on the Defendant Do£lor

FaiiTriToV^^^^^-^'s Death.

IfTue Male,

the Portion to fink. There is a Daughter, who attains to 16, and marries without Con-
fent, and no Son by the Marriage; but the Daughter dies in the Life-Time of the father
and Moihcr, and confequemly while tliere might be a Son ; the Portion finks.

I Upon

De Term. Pafcha, 1732. 13^

Upon the Marriage of the Defendant, Do6lor Raynes,
with Eli^aheth Pleydell, by Indentures of Leafe and Re-
leafe, dated the 13th and 14th of OBober, 1704, in
Confideration of that Marriage, and of 5000 /. Por-
tion, Sir Richard Raynes, the Father, conveyed divers
Lands in Surry., &c. to Truftees and their Heirs, to the
Ufe of the Defendant, Do£lor Raynes, for his Life fans
Wafte, Remainder to Truftees during his Life, to iup-
port contingent Remainders, Remainder to the Ufe of
Elizabeth his intended Wife for her Life, for her Join-
ture, Remainder to the firft, ^c. Son of the Marriage
in Tail Male fucceffively. Remainder to Truftees for
1 000 Years, Remainder to Do61:or Raynes in Tail Male
general, Remainder to Sir Richard Raynes in Fee.

The Truft of the 1000 Years Term was declared
to be, that in Cafe there fhould be no Son of the
Marriage born in the Hufband's Life-Time, or after
his Death ; or if there fhould be a Son, and that Son
fliould die before Twenty-one, and without Ifllie, and
there fliould be one or more Daughters born in the
Life-Time of the Hufband, or after his Death ; then
that the Truftees fliould by Sale, Demife, or Mortgage, •
or by Rents and Profits in the mean Time, in Cafe
fuch Term fliould have taken Effeft in PolTellion, raife
the Sum of 6000 /. Portion for the Daughter of the
Marriage, if but one, and to be divided amongft them,
if more than one, payable at their Age of Sixteen, if
either the Hufband or Wife fliould be then dead ;
but if both fliould be at that Time living, then within
fix Calendar Months after the Death of either the
Hufband or Wife, with Intereft for the fame from the
Death of Doftor Raynes and Elizabeth his Wife, or ei-
ther of them ; and in Cafe any of the Daughters
fliould die before the Portion became payable, her Share
to go to the Survivors.

Provifo,

136 De Term. Pafch^, 1732..

Provifo, that If the next Perfon in Remainder fliould
pay the Portions to the Daughter or Daughters ; or, if
at the Time of fuch Failure of Ijfue Male of the faid Doc-
tor Raynes {the Husband) by Elizabeth his IVife, to be
begotten as aforefaid, there Jljould happen to be no fuch
Daughter of- their Bodies begotten, nor any fuch Daugh-
ter to be afterwards born alive ; or there being fuch,
all of them (hould happen to die before their refpe£live
Ages of Sixteen, then, and in any of the faid Cafes,
the Term to attend the Inheritance.

The Marriage took EfFe£l, and there was no Son
thereby, and but one Daughter, who attained her Age
of Sixteen in the Life-Time of her Father and Mother,
and without their Confent intermarried with the Plain-
tiff, Mr. Gordon, who never made any Settlement on her.
The Daughter died in the Life-Time of both Father
and Mother, within four Months after the Marriage,
and without Iffue.

In Order to the Determination of this Cafe, the Lord
Chancellor called to his Affiftance the Lord Chief Ju-
Ilice Raymond and the Matter of the Rolls. When,

For the Plaintiff it was infifted, that his having
married the Daughter without the Confent of her Pa-
rents, as alio his never having made any Settlement on
her, together with her having died within four Months
after the Marriage without Iffue: All thefe Circum-
ftances made no Manner of Alteration in the Right
to the Portion ; for that, fuppoiing the Plaintiff to have
married with the Parents Conlenc, to have made a Set-
tlement on his Wife, and to have had Ififue by her
living ; if in thefe, or any of thefe Cafes, he had been
intitled to the 6000 /. Portion, he mull: even now have
the very fame Right thereto, which depended on the
2 Words

^tU»i«h.«>»ii ... ..J ■ Ti» I'l titiMi ■ ■AT II h ,J\^'mi^t

De Term. Pafch^, 1731. 137

Words of the Settlement made before Marriage, and
couH not be varied by any fubfequent Accident, ^tod
Curia Concejit : That at the Age of fixteen (fo often
mentioned in the Settlement) the Right to the Portion
vefted in the Daughter, although the fame was not
raifable till within fix Months after the Death of the
Father or Mother, or one of them ; and they compared
it to the Cafe of Butler verfus Duncomb, (a) where a
Term of 5:00 Years was limited, upon Failure of Ifliie
Male of the Marriage, for railing Portions for Daugh-
ters, payable at Twenty-one or Marriage, which Ihould
firft happen ; and the Truftees were to raife the Portions
by Sale or Mortgage, when the Term fhould commence;
and there it was agreed, that the Right to the Portion
vefted on the Daughter's Attaining tw^enty-one, her
Father being dead : So that there could be no Son, and
was an Intereft tranfmiiiible to her Executors : But
that the Portion could not be raifed until the Mother
died, in Regard that until then the Term was not to
commence.

That the Claufe of the Truft of the Term declaring,
that in Cafe there were feveral Daughters, if any of
them fliould die before the Portion fliould be payable,
her Share ftiould go to the Survivor ; implied, that if
there had not been that Declaration, it would have
vefted in fuch Daughter fo dying as aforefaid ; and fince
no Provifion was made in Cafe of there being but one
Daughter, it feemed natural to infer, that the Right to
the Portion vefted in fuch Daughter. Alfo, as the
Mother brought 5000 /. Portion into the Family, it
would be hard that the Daughter ftiould marry and be
intitled to no Portion.

On the other Side it was faid, and fo refolved by
the Court, that in the Cafe of Butler verfus Duncomby
Vol. III. N n the

(«; Vol. I. 448.

138 De Term. Pafchne, 1731.

the Portion was held to be vefted in all Events at the
Daughter's Attaining her Age of twenty-one, though
not raifable till the Commencement of the Term ;
whereas in the principal Cale it was not to veft until
fix Months after the Death of either the Hufband or
Wife, and the Daughter happened to die in the Life-
Portion fe- time of both. That this Portion being to arife out of
Land, and Land, and "the Daughter dying before it became pay-
theDaugh- ^\~\q^ fhc fame funk into the Land, agreeably to the
fore the Por- fettled Diftin£lion between a Portion fecured out of a
tion becomes pgj.^-Qj^gl Eftate, and one charged on Land, which Rule
finks into holds alfo witli Regard to Legacies, [a] (vi'xj) If a
Ttr^z^ Legacy be given out of a Perfonal Eftate to J. S. pay-
be given out able at his Age of twenty-one, and he dies before
7. 5.%ay- twenty-one, yet the Legacy fhall go to his Executors,
able at 2i, On the Contrary, where a Legacy is given out of a
dL before R^al Eftate payable at twenty-one, and the Legatee dies
21; theLe- before that Age, the Legacy links.

gacy finks. ° ' D /

Sccus in both

Cafes, where ^^j^j^ Refpe£l to the Claufe of the Truft of the Term

the L^o^acv ^

or Portton is declaring, that in Cafe there fliould be feveral Daugh-

f Ferfond ""^ ^^^^> ^"^ ^"7 ^^ ^^^"^ fliould die before their Portions
Eftate. became payable, in fuch Cafe their Portions Ihould go
to the Survivors ; this was faid to be a diftin£l Claufe,
to take Place only where there ftiould be feveral Daugh-
ters, and could not any way afFe£l or extend to the
Cafe where there was but one Daughter ; confequently
it was nothing to the Purpoie : But if any Ufe was to
be made thereof, it might as well be inferred from
thence, that as, where there ftiould be feveral Daugh-
ters, and one ftiould die before her Portion became pay-
able, her Executors or Adminiftrators were to be ex-
2 eluded ;

[A] This Diftinftion with Regard to Legacies, was agreed to and
fettled by the Maftcr of the Rolls in the Cafe of TVhiddon verfus Oxen-
ham, 7 July 173 1, and as 10 Portions, fee Jennings verfus Lookes, Vol. 2.
276. and the Duke of Chanios verfus Talk-! (610.)

De Term. Pafch^, 1732^- 1 39

eluded : So where there was but one Daughter, and flie
fhould happen to die before her Portion became pay-
able, neither fliould her Reprefentatives have any Right
thereto ; that the Provifo made it ftill plainer that
the Portion was to link, this being, that if at the Time
of Failure of Iffue Male of the faid Marriage, there
fhould happen to be no Daughter of the Marriage,
then the icoo Years Term fhould be in Truft to at-
tend the Inheritance : Now no Daughter of the Mar-
riage was living at the Time of Failure of Iffue Male,
and there was then a Failure of IlTue Male, when it
became impoffible there fhould be liTue Male, which
was not -while both Hufband and Wife were living ;
nay, if the Hufband had died firft, there would have
been ftill a Poftibility of IlTue Male, with which the
Wife might have been priviment enjeint ; but when
the Wife died without liTue, then and not before,
there might be faid to be a Failure of Iffue Male :
That it could not be faid, that at the Death of the
Daughter (though there was then no Son) there was a
Failure of Iffue Male ; for a Son might be born after-
wards ; fo if fuch Son had died, living both the Father
and Mother. So that in common Senfe and Reafon,
the Failure of Iffue Male muft be on the Death of the
Wife without a Son, which in this Cafe had fince hap-
pened.

Laftly, that although it might feem hard the
Daughter fhould marry and have no Portion, not-
withftanding her Mother had brought 5000 /. into the
Family ; yet it muft, on the other Hand, be allowed to
have been very reafonable, to leave the Right to the
Daughter's Portion in Sufpenfe and Contingency during
the joint Lives of the Father and Mother, to the
Intent fhe might be in fome Meafure kept in a De-
pendance upon them, and under no Temptation to

marry

140 De Term. Pafch^, 1 7 32.

marry improvidently, which was the very Reafon
given in the Caie (b) of Sir Willoughby Hickman verfus
Sir Stephen Anderjon. Alfo, that in the Cafe of Por-
tions fecured by Marriage Settlements, ( regularly
fpeaking) the Court in the Conftru£lion ought not
to omit, or add any Words thereto, for this would
be not to conftrue, but make a Settlement, efpecially
where the Settlement would bear a reafonable Con-
ftrudlion, as in the prefent Cafe it plainly would.
Wherefore, on the firif fpeaking to the Cafe, this Bill
for the Portion was difmift with great Clearnefs, by
the unanimous Opinion of the Lord Chancellor, the
Lord Chief Juftice Raymond, and the Matter of the
Rolls ; but without Colls.

""'^^ ''■ Da Cofta verfus Da Cofia.

Lord Chan- J ''

tellor King. ^^^

AFatherieft HP H E Plaintiffs were the two infant Children of Jo-

fonaTEftat'e i^^^^ ^^ ^^^^ ^'^^^^ ^^^^' ""^^^ ^^^^^7 ^^^^ poffcffed

to two In- of an Eftate of i 5CC00 /. which by his Will he gave
fant Chii- eq^ij^lly between the Defendant his Widow, and his

dren, and uy ii- • ^ r i •

made his two infant Children, and made his Widow one or his
y^^'ffv^'' A Executors. After the Teftator's Death, a Bill was ex-
Bill was hibited in Chancery in the Name of the two infant
iTiIfams Children, by JofephMendes DaCofla, who was their Re-
Name by a lation, as their Prochein Amy, to have an Account and
PruZ ^^ Difcovery of the Perfonal Eftate of the Plaintiffs the
^w, to call jj^fyj^fs Father. To which Bill the Defendant was fub-

the Mother , , i r

to an Ac- poeua d to appear and anlwer.

count. On

Affidavit of fevcral other Relations, tliat this Suit in the InfiuUs Name was out of Pique, and
not for the Infants Good, the Court referred it to a Mafter, who reporting the Matter to be
fo, the Suit was ftaycd.

Whereupon feveral of the Relations of the Infants
by the Father's Side, together with fome of their Re*

4 lations

(3) 2 Vern. 655.

De Term. Pajchie, 1752. 141

lations bv the Mother's Side, nearer than the Prochein
Amy., made an Affidavit that due Care was taken of
the Infants, and of- their Ertate, with which they were
well fatisfied; and that they beheved this Suit was ex-
hibited rather out of a Pique than any real Concern
for the Infants Benefit, there bein^ a Suit initituted
in the Spiritual Court by the Prochein Amy% Son againtt
the Infants Mother, upon a Marriage Contradl alleged
to have been made by her with him.

The Matter of the Rolls on a Petition ordered, that
it fhould be referred to a Matter to certify, whether
this Suit was brought for the Benefit of the Infants
the Plaintiffs, and whether it was proper the fame
(hould be prolecLited or not. The Defendant to pro-
cure the Report within a Month. Purfuant to which
the Matter made his Report, itating the Fa£l as above,
and that he did not conceive this Suit, as now brought,
was for the Benefit of the Infants, or proper to be
profecuted ; but that he thought, if a proper Bill were
brought by a proper Prochein Amy^ with a real Inten-
tion to fecure the Eftate of the Infants, it might be for
their Benefit, that fuch a Suit fhould be profecuted.

The Agents for the Defendant perceiving the Opi-
nion of the Matter, filed a new Bill in the Infants
Name by another Prochein Amy^ for an Account of the
Infants Eftate, in order that it might be improved ;
and now moved the Lord Chancellor, that the former
Bill in the Infants Name might be difmift, and the Pro'
chein Amy named therein, {c) pay the Cotts.

Vol. III. O o Lori

142. De Term. Pafch^e, 1732.

Lord Chancellor : The Report of the Mafter not being
excepted to, muft be taken to be [B] true. And fince
fuch Report certifies, that it is not proper this Suit
Ihould be profecuted, not being for the Infants Benefit,
I IKall not liifFer any further Proceedings upon it, at
leaft as yet. But leeing the Mafter reports, that a
Suit may be brought for the Benefit of the Infants,
and it does not at prefent appear whether the latt Bill
comes within that Defcription, all I fhall do will be,
to prevent the Parties from proceeding in both Bills,
which would be vexatious. Wherefore let all Pro-
ceedings itay on the firft Bill, in Disfavour of which
the Mafter has reported.

[B] A Mafter by his Report certified, that the Defendant had fub-
mitted to deliver Part of the Plate in Queftion to the Plaintiff, to which
the Defendant excepted, infifting that he had made no fuch Submiflion.
Refolved, that by Means of the Report, the Proof lay on the Defen-
dant, whofe Affidavit at leafl was neceflary to falfify what had been cer-
tified ; for, though there is no Reijfon that the Matter's Report fhould
be arbitrary and conclufive upon any one ; yet it fhall be prefumed, frimd
facie^ to be true -, and turn it on the other Side to fhew the contrary.
By the Lord Parker^ the Seal before Eajter Term, 1720, AlUn verfus
Pendlebury.

D E

14?

D E

Term. S. Michaelis,

173^-

South Sea Company verfus Wymottdfell. '^"'' " ■

cellar King.

THE South Sea Company brought a Bill againft The Sutute
the Defendant on a Contraa made by the De- °o„^''"^ pje^
fendant with Mr. Surman, the Deputy Caftiier of the where the
Company, in the Year 1720, touching 20,000/. South ^YrllSf^
Sea Stock ; fuggefting feveral Frauds, and fhewing, that ''"« f^en it
by the {a) Statute againft the South Sea DIreftors, all charaed by
the Eftate, Goods and EfFefls of the faid Surman were Jj^ ll.";^'**
vefted in the Company for the Benefit of the Pro- was difco-
prietors. The Defendant pleaded the Statute of U-}^^'^^^^
mitations, and that, if anv fuch Contract was made before the

•f Xi'W C,\ A

by the Defendant with Surman^ it was made above fix ' ^ '
Years before the Filing of the Bill, and denied the
Matters of Fraud.

It was infifted, that the Plaintiffs claiming by the^"V^%^^'^

n r \- r 1 .oiiheSouth

Act of Parliament, that was a Matter 01 Record, and Sea Compa-
ny, in whom
the Eftates of the late Dire£lors are \efted by A£l of Parhament; where the Statute of Li-
mitations might have been pleaded againft the late Diredtors, it is pleadable againft the Com-"
pany, who ftand but in fuch Direftors Place.

{a) 7 Geo. I, cap. 27,

the

144 ^^ Term. S. Michaelu, 1731.

the Demand in QLieftion to be taken as a Debt on Re-
cord, confequer.cly not barrable by the Statute of
Limitations ; and it was compared to an A£lion for
Tythes on the Statute of Edward, the Sixth, or of Debt
on an {b) Elcape, i^c.

So where, But the Lord Chancellor held this to be clearly
though the otherwiie ; for that the South Sea Company colild not
the EfFefts of be in 3 better Cafe than Surman was, againft whom,
a Bankrupt ^g j|^g Defendant Wymondfell might have pleaded the

claims under -^ iri • n \ ^

theAciof Statute, lo might he alio do againit the Company,
Parliament; j^^ ^^^j but^'jii Sumans Placc J like the Cafe of an

)'et, as the , . -p ,

Statute of Ailisnee under a Commillion ot Bankruptcy, who,
mSTe"' though he claims under the A61s concerning Bankrupts,
pleaded a- and alfo by Virtue of the Aflignment which is under
Bankrupt^ the Great Seal; yet, as he ftands only in the Place of
by the fame jj^g Bankrupt againft whom the Statute of Limitations
pirad°abie a- is pleadable, fo is he (the Aflignee) liable to be barred
gainftfuch thereby.

Aflignee. ■'

It was then obje£led, that this Bill was to be re-
lieved againft a Fraud, and therefore not within the
Statute of Limitations ; Fraud being a fecret Tranfac-
tion, and probably not difcovered within fix Years ;
and for this the Lord Warringtons Cafe was cited,
where it was held in this Court, and affirmed in the
Houfe of Lords, that a Bill to be relieved againft a
Fraud, was not within the Statute of Limitations.

On the contrary it was faid, if the Fraud was
known and difcovered above fix Years before Exhibiting
the Bill ; this, though a Fraud, would be barred by
the Statute of Limitations ; and that even in the Cate
of the Lord Warrington, the Statute was pleaded :
Whereupon the Plaintiff, the Lord Warrington, was
advifed to, and accordingly did, amend his Bill, by
2 charging,

{l>) Weftm. 2. cap, n. i Rich. 2. cap. 12.

De Term. S. Michaelis, 1732. 149

charging, that he did difcover this Fraud within fix
Years before Exhibiting his Bill. After which the Lord
Warrington had a Decree, and that Decree was affirmed
by the Lord's, (as Mr. Mead, who w^as of Counfei in
that Caufe, informed the Court;) wherefore it was
iniifted, that in the prefent Cafe it ought to be charged
in the Bill, that the Fraud was difcovered within the
fix Years, if the Fa6l were fo.

And of this Opinion was the Lord Chancellor ; but
here being a Charge of great Frauds, and fome Cir-
cumltances thereof not fully denied, the Defendant
was ordered to anfwer the Bill, with Liberty for tlie
Piaintifi's to except, and the Benefit of the Statute of
Limitations to be faved to the Defendant.

Attorney General verfus Righj. cafe 34.

Lord Chan-
cellor King.

/^NE feifed in Fee of divers Manors and Lands In One feifed in
^^ the County oi Lane after, granted a Rent-Charge ^^^°*'^'^^^"
thereout or 20/. per Annum for a Charity, towards theaRentinFee
Support of feveral poor old Men ; and afterwards the °Q?ritv ^
Founder of this Charity granted the Manors, Land?, for the Sup-
iS!'c. that were charged with the 20/. per Annum, to^fp^orPer-
y.S. and his Heirs, and died. The Qiieftion was, whofo^s, andaf-
fhowld have the Nomination of thele poor Men that grams the
were to partake of the Charity: Whether the Grantee ^^^."°I,t° 7-
of the Land, and his Heirs, or the Heir of the Grantor tiie Nc

>ion)i-

of the Charity? natiuncjthe

■' poor rerlons

belongs to the Heir of the Grantor, and does not go with the Manor.

After Debate It was decreed, that the Heir of the
Grantor Ihould have the Nomination, and that, the
fame being incident to the Founder and his Keirs, or
to thofe whom he fliould appoint ; when the Linds

Vol. IIL P p were

146 De Term. S. Michae/is, 1752.

were granted away, the Rent-Charge, a Thing inde-
pendent and collateral, did not pafs therewith like a
Rent-Service, which is incident to the Reverlion ;
whereas this being a Rent-Charge, and in Fee, had
no Reverfion. But forafmuch as the Grantees and
Owners of the Land had for upwards of fixty Years
enjoyed the Nomination of the Perfons, who had par-
taken of the Charity ; the Court allowed to them all
the Payments they had made to any of the Poor,
though nominated by themfelves, and would not dl-
fturb any Thing that had been already done. [AJ

Cafe 35. Morrice verfus Hajikey,

Lord Chan-
cellor King.

In an In- I HE Queftion was, touching the Breach of an
j""'-'^'?"'''^^ A Iniun£lion fBl. The Defendant in this Court

Words pro i L J . n i i • • rr

jf/><f7« /./fl«- brought an Action agamlt the Plaintitr, as Executor
!nte^i/of "^ Humphrey Morrice, Efquire. The Defendant at Law

an ifluable brOUght

Plea, and the

Words Judicium intrare, are intended of a final Judgment; therefore, if the Defendant be
an Executar, and pleads plene adminijhavit, and the Plaintiff at Law enters Judgment de
bonis Tejiatoris cum acciderint, he may proceed to a Scire Facias to inquire of AfTets, and
enter Judgment thereupon ; for the Meaning of the Injundlion is, that the Defendant may
proceed fo far, as that Nothing (hall remain, but to take out Execution, after the Injunc-
tion is diflblved,

[A] A Man founds a Charity for Alms-houfes : The Founder and
his Heirs have a Right of Nomination of thefe Alms-People ; but may
forfeit it by a corrupt or improper Nomination ot fuch as are not fie
Objeds of the Charity, or by making no Nomination at all ; but this
Negleft of Nomination muft be after fuch Time, as the Founder, i^c.
have had Notice of the Vacancy, and without Proof of fuch Notice, ic
is no Fault. By the Lord Parker, Attorney General \erius Leigh, Tri-
nity, 1 72 1.

[B] The Words of fuch Injundion are, that all Proceedings fhall
ftay ; Licebit mttem for the Defendant in Equity, (who is Plaintiff at
Law) placitum ad communem Legem pqftulare, tf ad Triaiionem iiide pro-
tedcre, (J pro defe£iu placitiy Judicium intrare ; Exccu'.io vero zigcre pr^e-
fcHtium rctardatur. After Service of an Injunction of this Kind, the De-
fendant at Law put in a frivolous Plea to an Adtion of Debt on a Bond,
which the Plaintiff demurred to, and having gotten it made a Om-

4 (itiuw.

'-'^■^ — ——r

De Term. S. Michae/is, 17 31. 147

brought a Bill) and after the Defendant in this Court
had delivered a Declaration, upon fuch Defendant's
praying Time to anfwer, the Plaintiff got an Injunc-
tion. The Plaintiff at Law proceeded there, and on
plene adminiflravit pleaded, took Judgment de bonis Te-
jlatoris cum acciderint , after which he took out a Scire
Facias in Order to an Inquiry of AfTets*

Whereupon it was moved, that this was a Breach of
the Injunction, being a Proceeding after Judgment ;
whereas the Injun£lion only gave Leave to enter Judg-
ment ; that the Scire Facias was in Nature of a new
A6lIon on the Judgment, which ought not to have
been brought without Leave of the Court.

But by the Lord Chancellor : Not having heard any
Precedent cited in this Cafe, I am therefore to be guided
by the Reafon of the Thing, and to prevent a Delay of
Juftice. It is admitted, that after an interlocutory Judg-
ment (as by Default, or on Demurrer) the Plaintiff"
may go on to afcertain his Damages. Now the Mean-
ing of the Rule in the prefent Cafe is, that, notwith*

ftanding

cilium, after Argument, obtained jLii-lgmcnt. Alfo upon another Bond,
after the Injunction fervcd on the Dctcndanc and his Attorney, they deli-
vered a Declaration. It was objeded, firft, with Regard to the Judgment,
that this was a Breach of the Injunction 5 for that in one Cafe only,
(viz.) pro defd£fu placiti, was the Plaintiff at Liberty to enter Judgment,
and here was no Want of a Plea. Alfo, that the Ddivering a Decla-
ration in the other Aftion was a manifeft Contempt, as had been often
determined. With Refpedl: to the firft, the Lord Chancellor llrongly
inclined to think this no Contempt, fince a frivolous Plea is as no PIv-m ;
and that, as the Plaintiff at Law m-ght, by the exprefs Terms of the
Injunftion, proceed to try an Iffue on the Fatt; by the fame Reafon he
might proceed to try an Iffue in Law, which, when the Court had de-
termined, and found the Plea ill, is, upon the Matter, no Plea. And
in Relation to the fecond Point, his Lordfhip thought that, had there
not been fome Rcfolutions to the contrary, the Delivery of the Decla-
ration was no Breach of the Injundioh, fince by the very Terms thereof,
the Plaintiff is at Liberty to proceed to Trial, and the Delivery, &c. ia
an Incident without which there can be no Trial. By the Lord Parkerf
Sidniy vcTius Hetl>ring!0>i, Trinity., '7 '9-

148 De Term, S. Michaelh, 1732.

ftanding the Injunflion, the Plaintiff" at Law Ihould be
at Liberty to proceed to an efte6lual Judgment; all that
the Court intends to flop, being the Execution. Buc
the Plaintiff at Law is neverthelefs allowed to proceed
fo far, as that he may be at Liberty, eo injlante that
the Injunction fhall be diffolved, to take out Execution;
A Sche Fa- neither is the Scire Facias like a new Aftion upon the

Natu'reTfT J'-^^b"^^'^^ ^^^ ^ Continuation only of the old one, on
new Action, the lame Record with that, and in Nature of a Pro-
nuation^o'f ' cecdlng after an interlocutory Judgment, to a final one.
ti-.e old one. Wherefore the Court ruled, that the Bringing this Scire
Facias was no Breach of the Injunction.

Cafe 36. North verfus Com'it ^ Comitifs de
Lord Chan- ' Stmiforcl.

cdlor King. JJ

A Bill is I 'HE Plaintiff Nortlh Father was Lord of the Manor

aT;frd?/a °^ ^' "^ "^#^^^' "^^ ^^'^^'^^^ ^ir Henvy John/on held

Manor to fevcral Parcels of Copyhold by feveral Qiiit-Rents, and

FinTfor'^a ^^^ ^^^" admitted to the fame ; and Sir Henry dying,

Copyhold, thefe Copyholds defcended to his Daughter and Heir,

ffion, tSr t^^6 Countefs of Strafford. \\'hereupon Mr. Draycott,

theDefen- fhe Lord Strafford\ Agent, wrote a Letter to the Agent

mktel^V ' of Mr. North the Father, (Lord of the Manor) defi-

Attorney, j-j^g Mr. North would admit the Countefs to thefe

times pre- Copyholds. Accordingly Mr. North admitted the Coun-

Atttme^ tefs by one Kir. Bawdrey^ (who was alfo Agent for Mr.

hadnoAu- North) her Attorney, as I'enant to the Copyhold Pre-

Ake' Aich n^iffes, for which leveral Fines were fet, amounting

AdmittaiKC} to 4O /.*
the Defen-
dant anfwcrs as to Part, and demurs as to Relief; tlie Demurrer held good.

Some Time after this, Mr. North, the then Lord of

the Manor, died, leaving the Plaintiff Mr. North, his

Son and Heir, and alfo Executor, who brought this

I Bill

De Term. S. Michaelis, 1732. 149

Bill againft the Earl and Countefs of Strafford^ to re-
cover the Fine fet upon the Admittance, and likewife
to be paid the Qiiic-Rents that were in Arrear in the
Plaintiff's Father's Life-Time, as aUo thofe that had in-
curred fince his Death* The Bill further charged, that
the Lands out of which the Quit^Rents iiTued, were not
known, being, by great Length of Time, and by the
Tenants having enjoyed thofe promifcuoufly with other
Lands, obfcured with Refpeft to the Boundaries ; but
that the Defendants had in their Cuftody or Power
fome Writing or Paper manifefting the faid Bounda-
ries ; alfo that the Defendant, the Lord Strafford, did
now deny, that he gave any Authority to his Agent
Mr. Draycott, or to Mr. Bawdrey, that his Countefs
ftiould be admitted by Mr. Bawdreyy as her Attorney.

The Defendants, the Earl and Countefs of Strafford,
as to that Part o/ the Bill which fought to compel
them to pay the Arrears of the Qtiit-Rent, or which
fought any Relief touching the fame, demurred, for
that the Plaintiff had his Remedy at Law for thefe
Arrears of Quit-Rent, either by Diftrefs, or A£lion of
Debt, on the Statute of H. 8. The Defendants did
likewife put in another feparate Demurrer, as to fuch
Part of the Bill as fought to compel them to pay the
Copyhold Fine, or which prayed any Relief touching
the fame.

Againft the Demurrer It was urged, that the Plain- Lard brings
tiff's Remedy was proper in Equity, by way of Com- TenanTto ^
miffion to let out the Boundaries of the Copyholds, recover a
which were exprefly charged by the Bill to have been ^^Vng^St
obfcured through Length of Time, and by Sir Hifw;^*^^ Land out
Johnjons having enjoyed thofe Copyholds promifcuoufly Qi,it-Rent

iflues, by
reafon of the Unity of Pofleflion of the Lands out of which the Rent is fuppofed to ifiue,
with other Lands, is not known ; the Defendant anfwers as to Difcoverj', and demurs as to
Relief; the Demurrer good, ^are.

Vol. IIL Q_q with

i<;o De Term. S. Michaelis, 1752.

with other Lands ; and that the Plaintiff could not
have any Remedy by Dillreis and Avowry, without
particularizing the very Lands out of which each
Rent iffued ; and that it had been fettled to be a
good Equity, and a fufficient Reafon for fuing in this
Court for a Qiiit-Rent of fmall Value ; that this Ob-
jection was ifrengthned by the Anlwer of the Earl
himielf, fetting forth, that he did not know the par-
ticular Lands that were Copyhold, which made it ne-
celTary a Com million fhould go. So that, if this De-
murrer held, the Plaintiff would appear to have a plain
Duty due to him, and yet would be deftitute of all
Remedy whereby to recover it. Alfo with Refpe£l to
the Admittance; if the Lord fhould fue for the Fine,
the Defendants might infift, they never contented to
fuch Admittance; and in Cafe the Plaintiff were to fue
for the Forfeiture, on Account of the Defendants not
having come in to be admitted, Ihould the Court
Rolls be produced, the Lord would hardly from them
be encouraged to proceed againft the Defendants for a
Forfeiture in not coming in to be admitted.

But notwithftanding this Obje£lion, the Court al-
lowed the Demurrer. The Lord Chancellor faid, he
had not known this Cafe before of a Demurrer as to
Relief. That had there been no Demurrer, the Court
on the Hearing would have relieved ; but here the De-
fendant had not demurred as to any Difcovery, but as
to Relief only. So that, upon allowing the Demurrer,
the Plaintiff was at Liberty, if he fhould think the
Defendant had not anfwered the whole Bill, to except
as to any Part ; or might amend his Bill, and inforce
the Defendant to difcover his Lady's Admittance ; that
the Plaintiff" might proceed, and make Proclamations to
oblige the Defendant's Lady to come in and be admit-

ted,: and had at Law a better Remedy for his Copyhold

Fine and Arrears of Qiiit-Renr, than this Court could
2 give

De Term. S. Mlcbaelis, 1732. 191

give him; for he might diftrein, or bring Debt, for the
Arrears of Qiiit-Rent due to him, as Executor ; and
diftrein for the Arrears of Quit-Rent incurred fince his
Father's Death.

And with Regard to the Fine ; He faid, either the
Countefs had been admitted, or ihe had not. If fhe
had, the Plaintiff might bring an A£lion of Debt, or
an Indebitatus ajfumpjit, for the Fine, provided it was a
reafonable Fine, as he fuppofed it to be. If the Defen-
dant had not been admitted, the Plaintiff might caufe
Proclamation to be made, and on a Default after three
Proclamations, might feife the Copyhold as forfeited.
For which Reafon his Lordfhip allowed the Demurrer,
it being only as to Relief.

Note; With Refpe6l: to the Copyhold Fine, the
Plaintiff might bring his A6lion at Law for it, and
need not, as it fhould feem, in his Declaration fet
forth the Particulars of the Land held of him by the
Defendants by Copy of Court-Roll; only, that the
Defendant's Wife held certain Lands w^ithin his Manor,
ilfc. But as to the Quit-Rents, it feems the Plaintiff
muft either in his Aftion or Avowry Ihew the parti-
cular Lands ; and in Cafe the Defendants in their An-
fwer fet forth, that they do not know where thefe
Lands lie, or what they are, the Plaintiff" is intitled to
a CommiHion to fet them out, and then the Plaintiff
being intitled to this Relief, ^^re. Whether the Defen-
dants Demurrer as to all Relief, be good ?

1 92, De Term. S. Michaelis, 1732.

^'"^7' £x parte Hopkins,

Lord Chan- * "*

rf//i3r King.

ArichUncic]V/f R. HopkinSy ofLondofj, Merchant, felfed and pof-
takcs his I> 1 £gflgj ^£ ^ j^ J gj^^ Perfonal Eftate, had

iNiece into D ...

his Houfe, no Wife or Iffue, but had a Brother, the Petitioner, and
hl'r"£e, other Relations of his Name. His Brother Hopkins, the
and dies, ha- Petitioner, had three Daughters, all which Mr. Hopkins
10,000/. ^'^ the Teftator received into his Houfe in London, and by
The Execu- his Will (inter alia) gave to his faid three Nieces,
nues to keep Daughters of his Brother Hopkins ; to the eldeft, being
the Niece in now about the Age of thirteen, 10,000/. to the fe-
whereheandcond, about the Age of ten, 8000 /. and to the third,
lived^^The' "0^^ about the Age of eight Years, 5oco /. to be fe-
Fatherofthe verally paid them at their feveral Ages of twenty-one
Sm, that ^^ Marriage, provided the Marriage, if under twenty-
(he may be oue, ftiould be with the Confent of his Executors ;
i^m.^ThT 2"^ ^^ ^^^^ of fuch Marriage without fuch Confent,

Child (of the then thefe Legacies to go over refpe6lively. The
appears in^ Exccutors of the Will Were Sir Richard Hopkins, Mr.
Court, and Rudge, and one Mr. Hopkins, Coulin to the Teftator.
mined, de- Mr. Hopkins, OUQ of the Executors, inhabited in the
mes (he is Houfe in London, where the Teftator died, and the
Force. The Tcftator's three Nieces continued there.

Court is of

Opinion, that the Guardianftiip of the Child docs by the Law of Nature belong to the Father,
but that the Right thereto is not to be determined without a Bill ; that the Father may take
his Child, but not by Force, nor in her going to, or returning from, Court; and that the
Father may at all reafonable Times have accefs to his Child.

"• The Brother of the Teftator exhibited a Petition to

the Lord Chancellor, fetting forth, that thofe three
Girls being his Children, he confequently had a Right
to the Guardianftiip of them, and praying, that they
might be delivered over to him. The Qiieftion was,
whether the Court could do this in fo fummary a Way
as on a Petition only, and without a Bill ?

I It

De Term. S. MicbaeJis, 17 31. i^-^

It was obje£led, that Matters of Guardlanflilp were
of the fame Nature with thofe of Lunacy, wherein the
Lord Chancellor does, upon a Petition only, dilpofe of
and commit the Cuftody to fuch Perions as he thinks
proper ; and in the like fummary Way might deter-
mine the Right of Guardianfliip, efpecially in fo plain
a Cafe as the prefent was ; indeed in doubtful Cafes, it
is probable the Court would order the Party claiming
the Guardianfhip to bring a Bill ', that the Application
now made was the more reafonable, as an Affidavit
would be produced, proving that Mr. Hopkins, againft
whom this Petition was exhibited, had been often feen
to kifs the faid Teftator's eldeif Niece, and to go into
her Chamber ; and that there was Reafon to fufpeft
him of fome Intentions to inveigle her Affeftions in
order to a Marriage.

On the other Side Mr. Hopkins, againft whom this
Complaint was made, owned he had frequently faluted
the Teftator's eldeft Niece, as being his Relation, and
whom he apprehended to have been in fome Meafure
under his Care, being in the fame Houfe, and placed
there by the Teftator : But that, whenever he faluted the
eldeft, he alfo faluted the two youngeft, who being of
fuch tender Years, it could not be fufpefted he had any
ill Intentions ; that the Will of the Teftator had fuffi-
ciently guarded the young Ladles againft any impro-
vident Matches, by having devifed over their Portions,
in Cafe any of them ftiould marry under twenty-one
without the Confent of the Executors. He moreover
fwore, that he had no undue Defign in faluting the faid
Teftator's Nieces, or any of them. Alfo Sir Richard
Hopkins and Mr. Rudge, two of the Executors, being
then in Court, declared, they had often heard the
Teftator fay, he never intended his Nieces ftiould be
educated by their Father and Mother, fmce they

Vol. III. R r would.

1^4 ^^ Term. S. Michaelis, 17^2.

would, as his Expreffion was, learn nothing there hut
law Life,

Lord Chancellor : The Father is intitled to the Cuftody
of his own Children during their Infancy, not only as
Guardian by Nurture, but by Nature, and it cannot be
conceived that, becaufe another thinks fit to give a Le-
gacy, though never fo great, to my Daughters, there-
fore I am by that Means to be deprived of a Right
which naturally belongs to me, that of being their
Guardian. But notwithftanding this Declaration, yet
I am of Opinion, and do not lee any Precedent (c) to
the contrary, that I cannot in fo fummary a Way as on
a Petition, and without a Bill, deliver over the Bodies of
thefe Infants to their Father, any more than I could,
on a bare Petition, order a Truftee to deliver over Pof-
feffion of the Truft-Eftate to the Cefiuy que Trufi, who
muil: in that Cafe bring his Bill, and fo muft the Peti-
tioner do here. There are legal Remedies for the Re-
covery of a Ward, (vi^,) a Writ of [a] Raviflimenc
of Ward, Homine Replegiando and Habeas Corpus*

In the mean Time the Father having thus an un-
doubted Right to the Guardianlhip of his own Children,
I if

{c) See ncverthelefs the Cafe of Mr. Juftice Eyre and the Countefs of
Shaftshury, and the Precedents there cited, Vol. 2. 118.

[A] Sed ^tere. Whether this Writ will lie, unlcfs the Defendant in
the Adion takes away the Ward ? And as to a Hoihinc Replegiando and
Habeas Corpus, (which laft efpecially fccms calculated only tor the Li-
berty of the SubjeA ;) if the Parties brought up thereon will acquaint
the Court, that they arc under no Force, the Court will let them go back
to tlie Places from whence they came -, or, if they appear to be under
Rcftraint, will let them at Liberty, but not deliver them into the Cu-
ftody of another, nor, in a Proceeding of that Nature, determine private
Rights, as the Right of Guardianfhip evidently is ; for then the Parties
would be concluded trom any Appeal or Writ of Error thereon. Pof-
fibly, in an Adtion de EjeSiione Cujlodja-, the very Right of Guardian-
fliip might properly come in Queftion -, and thus, to the bcfl of the
Editor's Remembrance, it was determined in the Cafe of The King verfiis
Swithy in B. R. Trin. 7 Ca' 8 Geo. 2.

De Term. S. Michaelis, 1732.

IS-?

if he can any way gain them, he is at Liberty fo to do,
provided no Breach of the Peace be made in fuch an
Attempt : But the Children muft not be taken away
by him in returning from, any more than coming to,
this Court ; and it will be a Contempt in any Perfon
offering fo to do.

And his Lordfhip aiked the eldeft Daughter then in
Court, whether Ihe was under any Force, and where
fhe would rather be ? who replied, fhe was not under
any Force ; and that, though Ihe had all imaginable
Duty for her Father and Mother ; yet her Untie the
Teftator having been fo kind to her by his Will, fhe
thought herfelf under an Obligation to continue where
he intended Ihe Ihould, and that (he thought it to be
his Intention Ihe Ihould continue in the Houfe where
he himfelf had placed her. Whereupon the Lord
Chancellor difmift the Petition ; but dire£led Mr. Hop-
kins^ who had the young Ladles in his Cuftody, to
permit their Father and Mother, at all feafonable
Times, to have acceCs to and fee their Children.

Covjper verfus ClerL

Cafe 38.

Lord Chan-
cellor King,

THE Bill was to be relieved againfl an excellive a fmgie Co-
Fine impofed by the Defendant Sir Thomas Clerk,ZTlt\\Jl
Knt. upon Mr. Spenfer Corfper, (late Mr. Juftlce Con'per)^^^ in Equi-
for a Water-Mill and fome Land held of Sir Thomas ^^l^ceffwe"^
Clerk's Manor of Brickendon, in Henford/Jjire, by Copy Fine, be-

rr^^n II yi- caufe this is

Ot Court-Roll. determinable

at Law. But,
to avoid Multiplicity of Suits, feveral Copyholders may join to be relieved againlt a general
Fine that is exceflive.

V The Cafe was thus : A Miller was feifed in Fee of a
Mill and a fmall Parcel of Land within the Manor of

Brickcndortt

1^6 De Term. S. Michaelis, 1732.

Brickendon, held by Copy of Court-Roll of the fald
Manor, the Stream of which Mill run by fome of the
Lands belonging to the late Mrs. CiiUens Seat and Eftate
at Herting ford- Bury in RertfordJJnre ; and Banks were
erected by the faid Miller in the Lands of the faid Mrs.
Cullen (then an Infant) by the Confent of her Guar-
dian. Mrs. Cullen coming of Age, fold her Seat and
Eftate at Hertingford-Bury to Spenjer Corvper, Efq; who
threatning to pull down thefe Banks which were in his
Land, and which would in a great Meafure deftroy the
Mill ; the Miller and Mr. Juftice Corvper came to an
Agreement, that the Miller iliould convey the Mill,
and a fmall Parcel of Land thereunto adjoining, unto
Air. Juftice Coivper in Fee, who was to procure a Li-
cence from the Lord of the Manor to leafe the Copy-
hold Mill and Premifl'es, that before were let at a lefs
Rent, to the Miller for ninety-nine Years, at 20 /. per
Annum. Accordingly the Miller furrendered the Co-
pyhold Mill and PremifTes to the Ufe of Mr. Juftice
Corvper and his Heirs, w^ho being thereunto admit-
ted, did, by Virtue of a Licence from the Defen-
dant Sir Thomas Clerk, demife the Copyhold PremifTes
to the Miller for ninety -nine Years, at 20/. per An-
num Rent. But at prefent the improv'd Value of the
faid Mill, Land, Houfe and Barn built thereon, was
about 60 I. per Annum.

The Fines to be paid on Defcent and Alienation
of thefe Copyholds were uncertain, and the Defen-
dant Sir Thomas Clerk fet a Fine on Mr. Juftice Corv
pers Admittance to the Copyhold in Queftion, of
1 20 /. which he refufed to pay, infifting that it was
unreafonable, and that it ought to be according to the
Value of 20/. per Annum, it having been fo let with
Sir Thomas Clerk's Privity (as was faid, but not proved)
when he gave a Licence to let it for ninety-nine
Years ; that indeed after the ninety-nine Years ftiould be
2 expired.

De Term. S. Michaelis, 1 7 32. i^']

expired, the improved Value might then be the Mea*
fure of the Fine. It was further urged, that the Value
of the Mill was increafed by the Banks fet up on
Mr. Juftice Cowpers Land, which he might pull down
at Pleafure, and therefore the Benefit arifmg to the
Mill, in Confequence of fo precarious an Advantage,
ought not to enhance the Fine.

On the other Side it was faid, that the Banks having
been creeled on Mr. Juftice Cowpers Land, by the
Confent of the Infant's Guardian ; and, in Conlidera-
tion of the quiet Enjoyment of thefe Banks, great
Sums of Money having been expended thereon, and the
Eftate, with thefe Banks then ere£led, having been
purchafed by Mr. Juftice Cqvpper, it was not in his
Power to pull them down : That the Matter complain-
ed of, (w'i^.) the Unreafonablenefs of the Fine, was
properly determinable at Law, not in this Court.
Moreover, all the equitable Circumftances of the Bill,
in Refpeft of the Fine fet on Mr. Juftice Cowper in his
Life-time, and likewife with Regard to that demand-
ed of the Heir lince his Death, feemed fully anfwered
by the Proofs.

The Lord Chancellor was of Opinion, that a Bill
could not be brought by a fmgle Copyholder to be re-
lieved againft an exceffive Fine j in Regard the Fine
infifted to be exceflive, ought to be tried by a Jury,
before whom all the Depofitions in the prefent Cafe,
touching the Unreafonablenefs thereof, would be proper
Evidence ; though his Lordfhip admitted that a Bill
might lie, in order to fettle a general Fine to be paid
by all the Copyhold Tenants of a Manor, to prevent a
Multiplicity of Suits ; and that with this Diverfity were
the Cafes cited for the Plaintiff, from the firft Chancery
Reports^ ^vo. (d) to be underftood. Whereupon the
Plaintiff's Bill was difmifled with Cofts.
[ Vol. III. S f Ldc

{d) See 1 Ch. Rep. 33. Middkten v. Jackfon^ and <)6. Pofham v. Lanccjier.

1^8 De Term. S. M'tchaelis, 1732.

Cafe 39- hakc vcrfus Craddock ij al\

Lord Chan-

cellar King. i r t\ t rt n

On an y^ppeal from a Decree at the Rolls.

^Zch^Jr'^T^^^ Cafe was thus: Great Part of the Lands
ireji Thorock -*- in Wefl Thorock, in Ejjex., having been overflowed
Jhe'com^f- ^y ^^^ River Thames, near Dagenhnm, and the Land
fioncrs of Owncrs not thinking it worth their while to pay the
jh^Purchaie AfieflVnents made on them by the Commillioners of
was to them Sewers ; the CommifTioners decreed the Lands to be
namsTnFce; forfeited, and conveyed them to three Truftees in Trull
but they con- fQ fg]]^ g^j^j j-aifc Money for the Draining of thefe over-
abiy to the flowed Lands. The Defendant Craddock's Father, the
Purchafe, Plaintiff Lake, and three others, (five in alJ) having

■which was . ' i-i i

with an In- entered into an Undertaking to drain the Level, or
Ihe Level f" Overflowed Lands of Wefl Thorock, the Truflees for the
after which Sale, bv the Confent and Dlre£lion of the Commif-
th'em^die^d; Aon^rs of Sewers, did, by Deed indented and inrolled,
they were dated the 8rh of February, \Sq<y, in Confideration of
Tenants in 5 M 5 /• P^'d to the Commlflioners by the five Pur-
Common in chafers, convcy this Level to the Defendant Craddock's
though 'one Father, the Plaintiff" Lake, the three others, and their
of thefe five j^gjj.5 _. Upon wlilch feveral Sums of Money were ex-

Undertakers 1 j • • 1 i • 1 •

deferted the pendcd in Carrying on the Undertaking; and in 1^99

fortoY^irs, ^^^^ defendant Craddockh Father paid his laft Contribu-

yct he was tlon, whlch, with what he had advanced before, came

war'j"/aru[' ^'"^ all to lOz^A Afterwards, it feeming to be an

on what Enterprize which would prove very expenfive, and

there being lome Uncertainty as to the Succefs of it,

the Defendant Craddock's Father wholly deferted it, and

never more concerned himfelf therewith.

The four other Undertakers were advifed, that fome

neighbouring Lands would be of Service to their De-

iign ; Upon which, in April j 1703, they purchafed the

2 Manor

De Term. S. Micbae/is, l^'^l. 1^9

Manor of Porret/Jjalls in Wejl Thorock, of the Lady Smith
for 2550/. and in February following purchafed the
Moiety of the Re£l:ory and Tythes of IVeJl Thorock, for
1400/. of Sir Charles Tyrrell; which two Purchafes
were thought ufeful in the Undertaking, and were
made in the Names of the four Undertakers, omitting
Craddock ; nor did it appear, that he was ever confulted
therein, or delired to contribute to the Purchafe.
Craddock the Father died, leaving the Defendant Crad-
dock, the Son, his Heir and Executor. The Plaintiff,
Sir Bibye Lake, one of the original Partners, brought
this Bill againft the Reft of the Partners, or their Re-
prefentatives, for an Account and Divlfion of the Part-
nerfliip Eftate. And on the firft Coming on of the
Caufe at the Rolls, his Honour referred it to the
Matter to ftate a Cafe between the Parties, for the
Judgment of the Court. And the Mafter having made
his Report, the Caufe was thereupon heard, when the
principal (or rather the only) Qiieftion was, whether
thefe five Purchafers, having made this Purchafe jointly,
fo as to become in Law Jointenants, the fame Ihould
furvive in Equity ?

The Mafter of the Rolls, on Debate, {e) decreed,
that the Survivorihip lliould not take Place; for that
the Payment of Money created a Truft for the Parties
advancing the fame ', and an Undertaking upon the
Hazard of Profit or Lofs was in the Nature of Mer-
chandifing, where the Jus accrejcendi (/) is never allow-
ed ; that, fuppofing one of the Partners had laid out the
whole Money, and had happened to die firft, accord-
ing to the contrary Conftruftion, he muft have loft
all, which would have been moft unjuft. Wherefore
it was decreed, that thefe five Purchafers were lenants
in Common, not only as to the Level Lands, which

were

[e) Trinity, 1729. (/") i Inft. 182. i Vern. 217, 2 Lev.

188^228.

i6o De Term. S. Michaelis, 1732.

were firft purchafed, but alfo with Refpe£l to the
Lands bought afterwards by the four Undertakers, of
the Lady Smithy and Sir Charles Tyrrell ; but that the
Defendant Craddock ought not to have the Benefit of
this Tenancy in Common, unlefs he would pay fo
much Money, as would make up what had been already
advanced by his Father, equal to what had been con-
tributed by each of the other Partners, together with
Intereft for the fame, from the refpe6live Times that
Craddock the Father ought to have made thofe Pay-
ments; and on the Defendant Craddock's Paying the
fame, then all the faid Lands to be divided into five
Parts, the Defendant Craddock to have one Fifth ; but on
Default of Payment, the Defendant Craddock to be ex-
cluded, and the Lands to be divided and diftributed
into four Parts among the four other Partners.

From this Decree the Defendant Craddock appealed
to the Lord Chancellor, infifting, that he ought either
to receive back the 1025/. which it was admitted his
Father expended in this Undertaking, or to be allowed
to come in for a Share of the Level only, and not
be bound to contribute towards the two Purchafes made
by the four other Undertakers, of the Lady Smith, and
Sir Charles Tyrrell; that the four other Undertakers had
chofen to make thefe two Purchafes in their own
Names only, by which they feemed to have excluded
Craddock from all Concern therein, and of which, had
it proved never fo beneficial, he would have had no
Means of forcing them to admit him to a Share ; and
therefore, now it had turned out a lofing Bargain,
there could be no Reafon to compel him to bear a
Proportion of the Lofs. Befides, there was Nothing
in the Articles empowering the Partners, or the major
Part of them, to buy Lands ; and by the fame Reafon
that they would oblige Craddock to pay his Share to-
wards thefe Purchafes, they might, if they had fancied
I Buying

* iT' 7C

Lk Term. S. Mich ae lis, 1752. i6i

Buying Half thi? Country, have compelled him to con"
tribute to that alfo ; that it was difficult to conceive,
how the Uplands thus purchafed, much iefs the Tythes,
could be of any Ufa in the Undertaking ; though, as
to the Charge of draining the Level, exclufive of the
two Purchafes, the Defendant Craddock was willing tQ
advance his Proportion.

. It was moreover pretended, that the Decree was un-
reafonable on Account of its having dlre6led, that the
Defendant Craddock, in Order to be admitted to out
Fifth, lliould pay not only his Proportion of thefe
two Purchafes, but alfo of the Intereft of the Put-
chafe Money, from the Time that his Father ought
to have made thefe Payments ; whereas the Direftion
ought to have been, that an Account lliould be taken
of the Profits of thefe two Purchafes, which Profits
might have amounted to as much as the Intereft, or if
not to quite fo much, yet that the Defendant Craddock
ought to pay no more towards fuch Intereft, than
the Deficiency of the Quantum of the Profits would
come to.

To which it was anfwered by Mr. Solicitor Talipot ;
that as the Defendant Craddock'^ Father and himlelf
had for fo long a Time (near thirty Years) relin-
quilhed and abandoned the Partnerlhip j and in Regard
the Defendant Craddock had no Manner of Right there-
to, but through the Indulgence of a Court of Equity,
(it being by Law a Jointenancy, and as fuch belong-
ing to the Survivors j) it was a favourable Decree to
let him in upon any Terms, and furely the Terms
now offered him muft appear reafonable, (w;?:.) That
he Ihould, upon his Contributing to all the Expences
that had been contrafted and incurred by Reafon of
any Purchafes, or otherwife, in the Profecution of the
Undertaking, be admitted to one Fifth of the Part-
' Vol. in. T t nerftiip;

i6z De Term. S. Michael! Sy 1732.

nerlhip ; that had the Defendant Craddock brought his
Bill for the Benefit of fuch Undertaking, he could not
have hoped to fucceed on any other Conditions ; that
it was ftill ftronger againft him, in that he now feemed
to decline meddling with the Undertaking; fo that here
was rather great Favour (hewn him, than any Hardfhlp
impofed ; that he was not abfolutely, and at all Events,
bound by this Decree to pay his Proportion towards
the new Purchafes, but had it in his Eleftion, whether
he would do it or no ; that as to the Interell v/hich was
required of him, previous to his being admitted into
the Partnerflilp, it was reafonable he fhould pay it for
his Default in not havin^ contributed his Share of the
Principal before, which, if he had done, he would not
have been charged with the Intereft; and this was fome
Difadvanrage to the other four Partners, who had been
deprived of their Arrear of Intereft for near thirty-five
Years ; that in Truth the Defign of the Defendant
Craddock appeared to be to delay Matters, and to defer
the Bringing in of his Money and Intereft, till fuch
Time as this long Account of the Profits fhould be ta-
ken, which would require many Years; and that, if the
Defendant's Share of the Profits of thefe two Purcha-
fes ftiould exceed his Proportion of Intereft, the Sur-
plus, on the Making up of the Accounts, muft be paid
him. For which Realons the Decree of the Mafter of
the Rolls was [B] afiirmed.

[B] Nov. 24, 1733, under the Name of Lake verfus Gihfon & al\
and the lo/. depofited with tlie Regifter, ordered to be divided between
the Plaintiff and the other Defendants, who were four of the Proprie-
tors of the Marfh Lands in the Pleadings mentioned.

D E

i63

D E

Term. S. Hillarii,

1732.

Sir Samuel Marvoood, Baronet, verfus cafe 40.

Cholmley Turner, Efq; XkZ

SIR Henry Marwood, Baronet, feiTed in Tail Male, Tenant in
_ with Remainder to himfelf in Fee, of a conlider- Remainder'
able Real Eilate in YorkfJnre, and alfo feifed of an Eftate t° 'li'^fcif;"
for three Lives of the Manor of Stanton^ in Tor^yZ'/ri?, his Lands' to
held of the Archbifliop of Tork, and granted by the ^'•^^^'•.^jpj^ _^
Archbilliop to Sir H^wry and his Keirsfor three Lives ; Recovery to
made his Will dated the 7th of June^ 171 1, whereby Jjj^j^i^ °^
taking Notice, that his Nephew the Plaintiff (now Sir Fee, and dies
Samuel Marxpood) would be intitled to the Baronetihip,}]^e]^j"ie.'
in Caie he furvived his Father, and the Teftator his this is a Rc-
Uncle ; the Teftator did by his faid Will devile a con- the Wiii.
fiderable Part of his Freehold Eftate to his Nephew, the
Plaintii^', for his Life, Remainder to Triiftees to 1 up-
port contingent Remainders, with Remainder to the
firil, ilfc. Son of the Plaintiff in Tail Male fuccellively,
Kemainder over; and deviled his laid Leafehoid Eitate
to two Truftees, and their Heirs, during the three

4 X^ives J

i64 De Term, S. Hil/arii, 1732.

Lives ; exprefling an ardent Defirej that the Truftees
would take Care, from Time to Time, to renew the
Leafe, and ufe their utmoft Endeavours to preferve th<
Ertate to the Heirs Male of the Family, as long as the
Honour of Baronetfliip fhould continue therein, and
made the Defendant, Cholmley Turner, Executor. Sir
Henry had no IlTue Male, but the Plaintiff was his Ne-
phew, (w^.) his next Brother's eldeft Son; and the
Heir at Law of Sir Henry was his Grand-daughter Jane^
being the Daughter of his only deceafed Son, and mar-
ried to the Defendant, Cholmley Turner.

After the Making of the Will, Sir Henry Marn^ood
did by Leafe and Rcleafe convey the Eftate of which
he was feifed in Tail Male, ^c. to Truftees and their
Heirs, to the Ufe of them and their Heirs, in Order
to make them Tenants to the Praecipe for fuffering a
common Recovery ; which common Recovery is, in
the Beginning of the Deed, faid to be for the Docking
and Barring of all Eftates Tail and Remainders, and
for veiling the Fee-Simple of the Premifles in Sir Henry
and his Heirs. And the Recovery is by this Deed de-
clared to be, to the Ufe of him and his Heirs, after
which a Recovery was accordingly fuffered, in which
Sir Henry was vouched. The leltator alfo, after the
Making of the Will, furrendered his Leafe for Lives,
and took a new Leafe of the Archbiftiop of Tork, to
him and his Heirs for three Lives, and put in his
Grandfon, Cholmley Turner^ as one of the Lives ; the
Deeds and Recovery were executed and fuffered in
1718; Sir Henry Marwood died the 28 th of O^oher,
\-jzs.

Upon the Back of the Will thefe Words were written
(and as fuppofed) by the Teftator's own Hand ; This is
my Will; afterwards thefe Words were written; But not
pojp jo intended to be*

I In

De Term. S. Hillarii, 17 31. 169

In the Spiritual Court, by reafon of thefe Words,
But not noiv fo intended to be^ the Will was let aiide,
and Adminiftration granted generally to Henry Pe/rce, ii
Daughter's Son of Sir Hemy Manvood; though this (it
was faid) was done without much Oppofition from the
Defendant, Cholmley Turner^ the Executor thereof j hut
whofe Intereil it was to conteft the Will, as to the Real
Eftate.

With Refpefl; to the Freehold Eftate ; the Common
Recovery, and the Deed by which the Premiffes were
conveyed to Truftees and their Heirs, declaring the
Uie of the Recovery to Sir Henry AUrn-ood, and his
Heirs ; thefe being all fubfequent to the Will, and in-
confiftent therewith, as declaring the PremilTes lliould
go to his Heir at Law, and not to his Devlfee ; it
teemed to be not much oppofed, but that the fame
wek^e a Revocation. Befides, a Common Recovery, as
it is a folemn Conveyance upon Record, and ftronger
than a FeoflFment, muft needs be a Revelation ; the
Recovery being fuffered by the Tenant in Tail, plainly
gains an abiolute Fee derived put of that Eftate Tail,
and which Fee was never devifed ; confequently it
muft be even ftronger than the Cafe, where a Man
having Lands, devifes them, and afterwards makes a
Feoffment of them, though to the Ufe of himfelf
and his Heirs, and though this Ufe be the old Ufe,
and the old Eftate, yet, according to the fcveral
Cafes in i Rolfs Abr. 614, Title Devijes revoked,
this is a Revocation ; and the Cafe in 3 Levins
108, Difler verfus D/flcr, was cited, as in the very
Point ; of which Opinion was alfo the Lord Chan-
cellor.

Vol. III. U u With

l66 De Term. S. Hillarii, 17 JZ.

A Leafe \\^ith Regard to the other Point ; it beine written on

granted to o i o

one and his the Buck oi the Will, This is my Will, but not nojv fo
three Li'ves, ^"'^^^^^^ fo be ', and the Spiritual Court having con-
is a Real E- ftrucd ihis to bc a Revocation of the Will, and there-
though by upon granted Adminiftration, as if Sir Henry MaiTPOod
tiieStatuteofhyj died Intcftate : The Lord Chancellor, prima facie,
made liable inclined to think that this Eftate piir autre vie was,
to pay Debts, ^P^g the Statute of Frauds, to be taken as Perfonal

vet It IS only

fuch Debts Eftate ; from whence it would follow, that the Will

Het"'^and '^^"^"'§ ^^^ ^^^^^ ^" DoEiors CommoYis, the whole Difpoli-
where the tiou of the Perfonal Eftate thereby was void, and con-
Courrfet a-f^S'-'^^'^^y ^^^^ ^^^^ Will, as to this Leaiehold Eftate, fell
fide a Will to the Ground, eipecially as a Leafe pur autre vie is

difpofins; (/n- j r i i i-. i

ter alia) oi "^^w made liable to pay Debts.

fuch Eftate

as revoked j this Sentence did not affe<5i the Devife of fuch Real Eftate.

To which it was anfwered (and the Court at length
allowed of the Anfwer) that the Leafe being granted
to Sir Henry and his Heirs for three Lives, this was a
Freehold delcendible, and a Real Eftate j and though
by the Statute of Frauds it is made liable to Debts, yet
it is only to Debts by Specialty wherein the Heir is
bound, and confequently to fuch Debts only as a Fee-
fimple Eftate is made liable to. Then this being a
Real Eftate, what would be a Revocation of a Will as
to a Perfonal Eftate, is no Revocation thereof in Regard
to this; and fuch an Indorfement only, efpecially lince
it did not appear whofe Hand Writing thefe latter
Words were, [but not now fo intended to be] could
be no Revocation.

Onefeirsdof , , • • ^ n- r t-ntt i i

a Leafe for 1 tie Only remaining Qiienion or Dimculty was, whe-

hi'andtfteJ! ^^^^ ^''^ ^^"'^J' ^^^^^^ood's Surreudriug the old Leafe, and
wards re- taking a new one to him and his Heirs for three Lives,
Rj^;,ff3 3fubfequent to the Will, was a Revocation of the Will?

Revocation

of the Will. I _^nd

De Term. S. Hillarii, 1752. 167

And it was infifted for the Plaintiff, that this was
no Revocation : For that it would weigh with the
Court, what ardent Deiires the Teftator had exprelTed
in his Will, that his Truftees, to whom this Leafe was
devifed, Ihould ufe their utmoll; Endeavours to conti-
nue the Leafe in the Male Line, as long as there were
any to inherit the Honour ; that as to the Surrender
of the old Leafe, this being only to take a better and
more beneficial Eftate, was all intended for the Advan-
tage of the Devifee, to give him a larger, a more ex-
tenfive Intereft than he had before, and to increafe the
Bounty that was before defigned him ; now to make
fuch an intended KQl of Kindnefs, a Deftru£lion of the
Will, would be to Invert, in the highell Degree, the
Meaning of the Teftator ; that the Renewal of a Leafe
was only a Grafting upon the old Stock, which muft
be of the fame Nature with that Stock, a Continuation
of the fame Eftate, with fome little Addition to it ;
that this was demonftrated by the common Cafe,
where a Truftee of a Leafe for Lives, when all the
Lives but one are expired, renews for the old Life
and two new ones, and the old Life dies ; here, though
the Truftee renews the Leafe out of his own Pocket,
and though the Leafe had been quite at an End, if he
had not renewed; yet this renewed Leafe ftiall be taken
to be fubje£l to the fame Trufts as the old Leafe was,
and a Continuation of the fame Eftate ; that a con-
fiderable Part of the Revenues of the Kingdom confifts
of Leafes either from the Church, or Colleges, or
Lords of Manors, efpecially in the Weft ; and that it is
very ufual to make Provifions for younger Children out
of thefe Leafes, which commonly require a Renewal
every feven Years, or upon the dropping of a Life ;
and if one fo feifed or pofteffed, having made his Will,
and thereby provided for a younger Child or Children,
(hould foon afterwards renew the Leafe, but forget to

republifti

1 68 De Term. S. Hiilarii, 17 32,.

republlfh his Will (which might often happen) if the
Child fhonld be thereby left unprovided for, fuch a
Conftru£lion might create the greateft Inconveniences ;
that no Judgment at Law, nor one Decree in Equi-
ty, had been cited, whereby it had been determined,
that the bare Renewal of a Leale was a Revocation of
a Will.

In 2 Vern. 209. Afford verfus Alford, Hil. 1690. one
devifed a Leafe to his Daughter, and afterwards re-
newed the Leafe by changing the Life, fubfequent to
which he annexed a Codicil to his Will, though without
taking Notice of the Leafe in fuch Codicil. In this
Cafe, according to the Book, it was left a Queftion,
whether the Renewal of the Leafe was a Revocation,
or not, of the Will, and the Point is not there deter-
mined ; but upon looking further into the Cafe, and
fearching the Regifter's Book, it appears to have been
ruled by the Court, that the Codicil being annexed to
the Will, was a Republication of the Will, if the Re-
newal of the Leafe had been a Revocation.

Secus (as it ^\[q Jq j-j-jg Q^fg of j^^^n vcrfus Temthir, heard at'

feems) in the , ,, , i r rs/- a » » i i r-

Cafe of a the Rolls, the 15th or June, i-jiz. A Man had five
Leafe for Sons, and by his Will gave a College Leafe to his fe-
cond Son, and having made a fuitable Provifion by his
Will for all his other Sons, bequeathed the Surplus
of his Eftate among all his five Children, after which
the Teflator renewed the College Leafe, and the
eldeft Son brought his Bill, as one of the Refiduary
Legatees, for his Share of this College Leafe, fuppc-
ling the Devife of it to the fecond Son to be revoked
by the fubieqiient Renewing thereof; and this being at
that Time folemnly debated, the Mafter of the Rolls'
held it a Cafe of very great Confequence, and that it
might prove very inconvenient and an Hardfhip, to
conifrue that to be a Revocation of the Bequelf, which
^ in

De Term. S. Hillarii, 1732. 169

in all Probability was intended for the Benefit of the
Legatee ; his Honour therefore ordered the A-Iafter to
ftate the Matter fpecially, and referved Cofts ; where-
upon the eideil Son was well advifed, and proceeded no
further in this Caufe, but permitted the fecond Son
[a] to enjoy the Leafe devifed to him, notwithttand*
ing the pretended Revocation by the Renewal; fo that
the Authorities were rather for the Plaintiff than a*
gainft him.

But itr was further urged, that if this Renewal of
the Leafe was a Revocation in Law, yet it would not
be fo in Equity, but the renewed Leafe would be fub-
jed: to a Truft for the Devifee ; that accordingly, if a
Man devifes Lands in Fee to A. and afterwards makes
a Mortgage thereof in Fee ; this Mortgage in Fee,
though a Revocation of the Will in Law, yet is none
in Equity, but the Right of Redemption lliall ftill
pafs by the Will : For that the Conveyance by way of
Mortgage was only for a particular End, (wi^.) to bor-
row Money upon the Eftate, and to make a Pledge for
that Purpofe. So in the prefent Cafe, the Surrender of
the old Leate is in order only to procure a new one,
though fuch new Leafe [B] is taken to the Leflee and
his Heirs for the three Lives. So if one that has articled

Vol. Iir. X X to

[A] This appears to have been the Cafe of a Leafe for Years, which,
notwithftanding the Doubt the Court of B. R. feems to have been in,
in the Cafe oi Banter verfus Cooky Salk. 237. whether it would pals by a
Will made before the Purchafing thereof, has been fince clearly held to
pafs by fuch Will. See the Opinion of the Lord Macclesfield^ in the
Cale of Wind verfus Jekyll £5? Albonc, Vol. i. ^j ^. where his Lorddiip
alfo held, that no Freehold Eftate can pais by fuch Will, and why.

[BJ A. and B. Tenants in Common of Lands in Fee. A. by Will
dated 25 January, 17 19, devifed his Moiety in Fee; afterwards y^. and
B. made Partition by Deed, dated 16 May, 1722, and Fine, declaring
the Ufe, as to one Moiety in Severalty, to A. in Fee, and as to the other
Moiety in Severalty, to B. in Fee ■, on its being fent by the Lord Chan-
cellor King to the Judges of the King's Bench to give their Opinion,

whether

170 De Term. S. Hil/arii, 1751.

to buy Lands (a) fliould afterwards devife thefe Lands,
and then the Perfon that has contracted to fell the
Lands to him, fhoiild convey the fame purfuant to the
Articles j this is no Revocation in Equity, but the
equitable Right, which the Teftator has to the Land
articled to be purchafed, Ihail pafs by the Will, and
the Teftator's Heir at Law be a Truftee for the De-
vi fee.

By all which Cafes It was faid fufficiently to appear,
that a Will may be revoked at Law, and yet be fubfift-
ing in Equity; fo that taking it in the prefent Cafe,
that the Renewal of the Leafe was a Revocation at
Law, the fame would not however operate as fuch in
Equity ; and that this was ftill the ftronger, in that
the Teftator by his Will had directed, that the Truftees
Renewal of the Leafe ftiould be a Means made ufe of
to continue and preferve the Eftate in the Family.

But It was Infifted on the other Side, and fo held

and decreed by the Lord Chancellor, that this Renewal

of the Leafe for three Lives, w^as a Revocation of the

i Will

whether this was a Revocation of the Will ? it appears by the Regifter's
Book, that the Court, (viz.) Lord Raymond, Chief JuHice, Page, Pro-
hyn and Lee Juftices, certified,

" That they were all of Opinion, that the Will of the faid A. was not
*' revoked by the Deed and the Fine levied in Purfuance thereof; and that
*' the faid y/.'s Share of the Lands contained in the Deed, and the Fine
" levied thereon, did pafs by the Will of the faid A" with which the
Lord Chancellor concurred, and ordered that the fcveral Trulls in the faid
Will of A. fhould be eftabliflied. Luther verfus Kidhy, April 9, 1730.
But if A. devifes Land and levies a Fine, and the Caption and Deed of
Ufes are before the Will, but the Writ of Covenant is returnable after
the Will, this feems a Revocation -, becaufe a Fine operates as fuch from
the Return of the Writ of Covenant, and not from the Caption. See
Salk. 341 . Lloyd verfus The Lord Say and Seal. And yet this is a hard Cafe,
fince by the Caption the Party Conuibr does all his Part, and the Reft
is only the Aft of the Clerk or his Attorney, without any particular
Inftrud:ions from the Party.

{a) 2 Vern. Syc). Creenhill verfus Greenbill.

De Term. S. Hillarii, 1752. 171

Will as to this Particular; for by the Surrender of the
old Leafe, the Teftator had put all out of him, had
devefted himfelf of the whole Intereft ; fo that, there
being Nothing \tk for the Devife to work upon, the
Will muft fall, and the new Purchafe being of a Free-
hold defcendible, could not pafs by a Will made before
fuch Purchafe, But his Lordfhip wondered, that this
Cafe, which muft have often happened, had not been
before determined.

There was left one other Point in the Cafe, which a. covenants
was this: S\v Henry Marrpood in 1663, upon his Mar- °"^^'^^^^^'^*
riage with Dorothy the Daughter of Allan Bellin^ham, out ^oooi.
Was to have 3 coo/. Portion with his Wife, and to lay l-ha/e^ ^f""^"-
out that Sum in the Purchafe of Land, to be fettled Land, and
on Sir Henry and his Wife, and the Heirs Male of hiSonJjnVaii,
Body by her. Remainder in Tail Male to the Plain- Remainder
tiff's Father. Ic appeared, that Sir Henry did lay out purchafes the
the I coo I. in the Purchafe of an Eftate called Afcomb^^^^^"'''^^-
in Torkjmre, and afterwards luftered a Common Re- 3000 /.and
covery thereof, having never made a Settlement of >t ^^''"y/^/Jj-^'
on the Plaintiff's Father in Tail Male, expe6]:ant on his fers a Reco-
own Death without Iffue Male by Dorothy. IsThfcovI-

nant was a
Lien on the Land ; fo the Recovery fuflered of it, difcharges the Lien, and bars B, ©f the
Hencfit of the Covenant, and of the Remainder.

And the Court held without Difficulty, that when
the Afcomb Eftate was purchafed, and declared to be
the Land, which was to be appropriated and fettled for
the 3C00/. Portion; then, and from that Time, there
was a Lien upon the Land, and the Plaintiff's Father
became intitled in Equity to a Remainder in Tail Male
therein, expe£lant on the Death of Sir Henry without
Iffue Male by his Lady ; and that, when Sir Henry af-
terwards fuffered a Recovery of the Premiffes, fuch
Recovery barred the Trufts ; and that it had lately
been folemnly determined by this Court, that a Reco-
very

172. De Term. S. Hif/arii, 1732.

very would bar a Truft. Whereupon the Plaintiff's
Bill was difmifled in mo, but without Cofts, the Lord
Chancellor thinking it a very hard Cafe.

Cafe4t. Wilfon verfus Spencer.

Lord Chan-
cellor King,

One by his JoHN Spcticer, by his Will dated the 31ft of March,
that au his"' -^ 1 7 2 9, devifed, that all his juft Debts and Pecu-
Debts and niary Legacies fliould be paid by his Executor out of
fhati be paid his Pcrfonal Eftate, as far as the fame would extend,
by his Exe- aj^(j in Default of that Fund, by and out of his Real

cutor out or . i • i r i -ii i

his Perfonai Eltate ; lor which Purpole he willed, that his Ex-

ftaiTbe fuffi- ^^"^"''> ^^1^^^'^ twelve Months after his. Deceafe, fhould
cient; butiflevy and raife out of the Perfonai Eftate, not other-
th°athisE'xe-^^^^ fpccifically dcvifed, and in Default of fuch Fund
cutor, with- and in Aid thereof, by and out of his Real Eftate, or
MomhsTfter t»y Mortgage or Sale of fuch Part thereof, as might be
his Death, fufficieut, the full and juft Sum of looo/. which faid
mortgage fo Sum of I COO /. he did thereby give and bequeath to
R^'^i'^Eft ^'^ ^^^ younger Son, Edward Spencer, to be paid him by his
as {hall be ' Exccutor immediately after the fame fhould be raifed
[hfcS^t'^^ aforefaid. And the Teftator did thereby charge all
and (/«/• ai'] his Real Eftate with the faid Sum of i oco /. for the
fylVio^(^oi Purpofe aforefaid, and to anfwer the fame in all Events,
to 7. s. who in Cafe the faid Teftator's Perlonal Eftate fhould prove

dies within a j r •
Year, and dehcicnt.
the Perfonai

Ertatc is not fufficient ; this is a vcfted Legacy, and (hall be paid to the Executor of the Le-
gatee, though charged upon Land ; for the Words, within twelve Months, denote the ultimate
Time; but the Executors may pay the Legacy fooner.

The Perfonai Eftate was not fufficient to raife this
1000 /. and Edivard Spencer, the Legatee, died within
the Year, {vi^.) eight Months after the Death of the Te-
Itator. Whereupon the Executor of Edward Spencer, the
Legatee, bringing a Bill for the lOOo/. the Q.ueftion
I was,

De Term. S. Hillarii, 17 32. 173

was, whether, the Perfonal Eilate being deficient, and
Edward Spencer, the Legatee, dying within the Year,
this I coo /. Legacy fliould not be deemed a lapled Le-
t*acy, and fink in the Land, for the Benefit of the
Heir at Law ?

Againft the" Payment of the Legacy it was urged,
to have been the conltant Rule of Equity, ever fince
the Cafe of Paulet verlus Paiilet (b), that if the Lega-
tee of a Legacy charged upon Land dies before the
Legacy becomes payable, the Land or Real Eftate fhall
not be loaded for the Benefit of an Executor or Ad-
mlniftrator, but the Legacy fhall fink in the Land in
Favour of the Heir j that in the principal Cafe the
Legacy was no Charge upon the Land, until the End
of twelve Months; no Bill could be brought for the
Raifing of it before that Time ; and to call it a vefted
Legacy would be begging the Queflion, fince a Legacy
given out of a Real Eftate is not vefted, until it be-
comes payable, and in Caie of the Legatee's Death be-
fore that Time, fhall never be paid, but fink in the
Land ; and as to what might be objefted, that this
Legacy was not made payable at a certain determinate
future Day, {v'fxi) at the End of twelve Months, but:
only within twelve Months ; fo that the Executor was
at Liberty to pay it as foon as he pleafed after the
I'eftator's Death, but muft not defer Payment longer
than that Time : To this it might be anfwered, that
the Law, in this Cafe, had appointed a Time for Pay-
ment, {vi'^) the End of the twelve Months after the
Tertator's Death ; and that the Legacy could not be
laid fo be due, till the ultimate Part of that Time was
come ; like the Cafe, where one feiied in Fee leafes
for Years, rendring Rent at Lady-day and Michaelmas ;
if the LefTor dies on Michaelmas Day, yet, the Rene

Vol. III. Yy noc

{b) See 1 Vern. 204, 321.

174 ^^ Term, S. Hi liar it, 17 31.

not being due until the End of that Day, (^v'^.) not
before [C] Tweke o'clock at Night, on the Lel-
for's dying before that Time, it fliall go to the Heir,
and not to the Executor ; that the Words rvithin
ftpelve Months are the fame as, at or before the End
of twelve Months, and furely the looo/. could not
be faid to be due or payable, until the End of the
twelve Months; fo that the Legatee dying before, the
Land is difcharged. And for this Purpole were cited
the Cafes, in 2 Fern. 416, of Tates verlus Fettiplace.
2 Vern. 617, Carter verfus Bletjo^ Duke of Chnndos ver-
fus Talbot (c), and that of Whiddon verfus Oxenhaniy 7 th
of July, 1731, at the Rolls.

The Lord Chancellor admitted, that in all the for-
mer Cafes, wherein a Portion was fecured out of Land
payable to a Daughter at Eighteen, or Marriage, and
the Daughter died before that Age, or Marriage; ic
was highly reafonable the Land fhould be eafed of the
Charge, when the only Motive and Inducement for
making the fame was at an End and determined, by the
Daughter's dying under Eighteen, or unmarried ; and
confequently before fhe had any Occalion for a Por-
tion : But that in the prefent Cafe the Legacies were
all vefted by the firft Words of the Will, whereby the
Teftator devifed, that all his Legacies Ihould be paid
by his Executors out of the Perfonal Eftate, if fuffi-
cient, or elfe out of his Land ; and that the fubfe-
quent Dire6lion, that they fliould be paid within twelve
Months after the Teftator 's Deceafe, was faying no
more than a Court of Equity would fay without thefe
Words, mere Surplulage, and therefore could make no
Alteration. His Lordlhip took Notice of a Cafe ftronger

[C] If the LefiTor lives till Sun-fct, it becomes due to him, accord-
ing to the Cafe of Southern verfus Bellafis, Vol. i. 178, 179, in the
Note.

(f) Vol. 2. (610).

De Term. S. Hill ar it, 1732. 179

to this Piirpofe, than any that had been cited, which
is in 2 Vern. 424, Jackson verfus Farrant (d), where a
Man by his Will devifed 5C0 /. Portion to his Daugh-
ter, to be paid by his Executor, at her Age ot Twen-
ty-one, out of his Perlonal Pidate, and the Rents and
Profits of his Land; and if not raifed by that Tiine»
that his Executor flioiild ftand feifed of the Land, and
take the Rents thereof, until the 500/. fliould be raifed
and paid. The Daughter married at Eighteen, and
died before Twenty-one. Whereupon it was obje£led,
that the Portion lliould fink, becaufe the Daughter
died before Twenty-one. Or that, if it was to be rai-
fed, flill it Ihould be only by the Rents and Profits,
and not by a Sale. But it was decreed, that the Por-
tion fhould be raifed together with the Intereft and
Cofts, and by a Sale too, wherein the Defendant, the
Heir, was forthwith to join ; and this, although the
Incumbrances were fo great, that the whole Inheri-
tance would produce little more than the 500/. Where-
fore it was decreed in the principal Cafe, that the Le-
gacy fliould be raifed with Interetl from the End of
the Year ; and the Land being devifed to A. for Life
only, Remainder to B. in Fee ; the Court would not
dire6l the Legacy to be raifed out of the annual Pro-
fits, for that might wholly defeat the Eftate for Life ;
but that the Tenant for Life Ihould only keep down
the Intereft, and that the 500 /. fliould be raifed by a
Sale of fo much as would be fufficient to pay the fame
with Intereft and Cofts.

Note ; The Mafter of the Rolls was prefent in Court,
when this Caufe was heard, and, on being fpoke to by
the Lord Chancellor, declared himfelf of the fame
Opinion. [D]

(i) See alfo Precedents in Chancery, 109.

[D] His Honour had made the like Determination in the Cafe of
Cewper verfus Scot, which fee ant' 119.

Lomax

I7<5 De Term. S. Hillarii, 1732.

Cafe 42. Lomax verfus Holmeden.

Sir Jofepli
Jekyll, Ma- ■

Ml!/' IVT^' ^^^^^•> ^'^^^ ^'^ ^^' ^^^^^^■> Jn Hertfordft/ire, the
Devifetomy Plaintiff's Grandfather, by his Will deviled all

Daughters, j^jg Lgnds and Tenements to a Truttee, Cone Mr.
{hall attain Graves Norton) and his Heirs, to the Ufe of the Tetta-
hisAgeof40j.Qj.'g 'y^rjfe for her Life, flie paying 200/. per Annum
ping by that to his the Tcitator s Son, Caleb Lomax, until his Age
7^^,77 of forty Years: and in Cafe the Wife flioiild die be-

bonwillnave ^ •' ^ . ^ • • r-

fecn his Foi- fore the faid Caleb mould attain to the faid Age of
Llefofe"" forty Years, then to his (the Teftator's) Daughters,
3^0 ; the De- and to their Heirs, they paying unto the faid Caleb
Daughters^ 2 00 /. per Annum, until his Age of forty Years: The
ceafes Tcftator hoping that his Son Caleb would, by that

until 5. (haii Time, have lived to fee his Folly. After which the
Y^^s ^^B Teftator devifed the PremilTes to his Son Caleb for Life,
dies before Remainder to Truftees and their Heirs during the Life
ftat'e ifes^' ^^ ^(^1^^^ J^ Truft to fupport the contingent Remain-
Secus, if the ders, and from and after the Death of Caleb, then to
^"l^^t the Ufe of the firft Son of Caleb, and the Heirs Male of
Fund to pay his Body, with Remainder to the lecond, third, fourth
tions^°^hich ^rid fift^h Sons of Caleb fuccefllvely, Remamders over.

cannot be

raifed, until B. (hall have attained his Age of 40 ; in which Cafe the Word Jhall is taken

for Jhould.

The Teftator died, the Wife alfo died. Caleb mar-
ried, and had a Son (the Plaintiff ) but died before his
Age of forty Years. And the Bill being {inter at) for
an Account of the Profits of the Premiffes from the
Death of Caleb, the Plaintiff's Father, theQiieftion was,
whether this Eftate devifed by the Will to the Tefta-
tor's Daughters, until his Son Caleb fhould attain to
the Age of forty Years, ftiould fubfift, now Caleb was
dead, until fuch Time as he lliould, had he lived,
have attained to his Age of forty , or whether it deter-
z mined

De Term. S. Hil/arii, 1732. 177

mined by the Death of Caleb before he arrived to that
Period ?

It was argued for the Defendants, the Daughters of
the Teilator, that this Devife did create an abfolute
Title and Incereft unto them, until fuch Time as their
Brother fhould have attained his Age of forty Years,
had he hved fo long ; and for this were cited 2 Fern.
3 5. GoJIey verfus Gifford, but more particularly Lan(f
58. and 3 Co. 19. Boraftons Cafe.

But the Mafter of the Rolls, after Time taken to
coniider of it, and having mentioned and diftinguifhcd
upon the Cafes that had been cited, decreed, That this
Eltate, devifed to the Teftator's Daughters and their
Heirs, until his Son fhould come to the Age of forty
Years, did determine on his dying under that Age ;
and that, agreeably to all common Senl'e and Reafon,
the Term and Intereft thus devifed muft ceafe, when it
became impoffible for Caleb to arrive at that Age. For,
taking it literally, that the Daughters fhould enjoy the
Land until Caleb fhould attain to his Age of forty, this
would be to make them hold it for ever ; In Regard
Calebs when he died before forty, could never afterwards
attain to that Age ; that it is very true, where fuch
an Eftate or Intereft, as in the principal Cafe, is created
for a particular Purpofe, as for a Fund, fuppofe, for
Payment of Debts, (which was the Cafe of Boraflon in
3 Co.) there, fince the Son might happen to die the
next Day, or foon after the Teltator, ic would be very
hard that fuch an Event, occafioned purely by the A61
of God, ftiould defeat the Fund provided on Purpofe
for the Benefit of Creditors : And therefore, in Aid of
the honeft Intention of the Party, who may be iup-
pofed to have computed the Time wherein the Profits
of his Eftate would be fufficient for that End, in fuch
Vol. III. Z z Cafe

178 De Term. S- H//larii, 1732.

Caie the Judges, iby a liberal Interpretation, have con-
llrued the Devifor to have meant, that the Devifee or
f^xecutor Ihould have the Land for fo long Time as the
Son, if he bad lived, fhould have arrived at the Age
mentioned ; but that in all Cafes where no fuch Inten-
tion appears, the Eftate or Intereft would abfolutely
determine by the Death of the Party under the Age
fpecified in the Will. That fuch Confl:ru£lion feemed
the more juft in the prefent Cafe, as the Reafon ap-
peared why the Teftator created this Intereft by his Will,
until his Son fhould attain to his Age of forty Years,
namely, in order to guard the Eftate againft the ill Con-
duct and Extravagancy of his Son, the Will faying. The
Teftator " hoped by that Time his Son would have feen
*' his Folly :" But his Son dying before that Time, the
I'eftator's Eftate could not afterwards fufter, through
any Folly or Extravagance of the faid Caleb. Again : The
Will having given the Eftate, from and after the Death
of Caleb, to his [the faid Caleb's] Son, there could be no
Reafon affigned why fuch Son fhould be kept out of
the Eftate until his Father ftiould, had he lived, have
attained to forty ; for by fuch Conftru61:ion the Son
would be punifhed, not for any Fault of his own, but
only for the Extravagancy of his Father ; and it cannot
reafonably be intended, that the Teftator meant to dif-
inherit his Heir at Law, without any Offence com-
mitted by him.

m'TonA Another Queftion In the Cafe was, that the Devife
for Life, Re- was to the firft Son of the Teftator's Son Caleb and the
hisfifft'son Heirs Male of his Body, with Remainder to the Ufe of
in Tail the fecond, third, fourth and fifth Sons of Caleb fuc-
mainderto ceflively, without faying for what Eftate, (the Words

his fecond,

third, fourth and fifth Sons fucceflively, without faying for what Elhte, or any Words tan-
tamount, jf. has two Sons, the former of whom dies in his Life-time ; the fecond Son
Ihall have an Eftate-taii, being the firft Son at his Father's Death, ^lan.

I of

De Term. S. Hillarii, 1732. 179

of Inheritance being by Miftake omitted) and there was
a Son of Caleb born before, but. flich firft Son died very
young, after which this Son, the Plaintiff, was born.

And the Court held, that" this Son, the Plaintiff,
being the firft Son at his Father's Death, was intitled
to take an Eftate-tail. For which was cited the Cafe
of Trafford verfus JjJyton, [E] 2 Fern. 660. However,
this Point, as it feems, could not now come in Que-
ftion ; for that the Plaintiff would, in all Events, be
intitled to the PremifTes for his Life.

[E] ^,ere autem. For the Reafon of that Cafe feems rather againft
this Conftruftion, which is, at leaft, better warranted by the Cafe of
< -Chadwick verfus Doleman, in the fame Book, fo. 52 S.

D E

i8o

D E

Term. Pafch^,

1733

c»f<43- Croft verfus Pyke.

Lord Chan-

cellor King,

A Bill was brought by Grace, the Widow o{ Francis
Croft, for the Recovery of the Sum of i ooo /.
fecured by a Bond entered into by the faid Francis
Croft on his Marriage with the faid Grace, unto her
Truftee, for fecuring i ooo /. to the faid Grace, in
Cafe fhe fhould furvive her then intended Hufband.

Francis Croft was Partner with Sir Francis Forbes in
the Trade of a Cotton Merchant. The Stock was
4000/. of which each had a Moiety, (7;/:^.) 2000/. Ic
appeared that after the Marriage, the faid Francis Croft
took out of the Partnerfhip Stock more than the Sum
of 2000 /. which was his Share. After which Croft
died, leaving his Partner Sir Francis Forbes and Ttwmas
Archer, Efq; Executors, in Trull for his Wife and
only Child. On the Death of Croft, Sir Francis his
Partner intermeddled with his Perfonal Ellate, and
buried the faid Croft j and there was a Debt due from
I the

De Term. Pafch^e, 1735. 181

tfhe faid Croft to the faid Sir Francis by Bond for 300/.
t)UC Sir Francis died before he had proved the "Will
of his Teftator Croft^ and lefc the Defendant Pyke
Executor. Thomas Archer renounced. Afterwards Grace
Croft the Widow died, and left lier Father Thomas
Brampflon Executor, in Truft for her Child, whom
ihe made Reliduary Legatee. The Child brought the
prefent Bill, in Nature of a Bill of Revivor, for the
Recovery of this 1 000 /. as belonging to him under
his Mother's Will.

The Child's Grandfather, Thomas Brampflon^ who
was Executor in Trull of the Mother's Will, was ex-
amined as a Witnefs in the Caufe, to prove there
was a Fraud committed by Sir Francis Forbes^ in re-
prefenting the faid Francis Croft to have been his
Partner in a Moiety of the faid 4000 /. Stock :
Whereas at that Time he was Partner only for a
Third ; and afterwards was to have been admitted as
a Partner for a Moiety, upon his the faid Crofts paying
to the faid Sir Francis 1000/. Part of his faid Wife's
Portion.

And it was infifted, that this Thomas Brampflon ^^^,^^T^"'
was no good Witnefs, becaufe he was Executor, and witnefs^for
though but Executor in Truft for the Infant Plaintiff, 'li^^c/^":^?'"
and notwithftanding his Evidence did not tend to in- not a'n'EIe- " a ^„,^»
creafe the AiTets for his own Benefit, but for the Be- ^'"j; '"- ^
nefit of the Infant; yet an Executor cannot be faid to is liable to be
be a difmterefted Perfon, bein^ fuable for the Debt, ^nd^'f^y^T

n rr • r ditors, and

liable to pay Cons; and confequently differing fromtoanfwer
the Cafe of a common Truftee ; [A] for which Rea- '^ ^' y ^^^
fon the Lord Chancellor would not admit him to be ^"/L/'/^^'/i^^ "^^'"^
Vol. IIL Aaa read ^!.,.«r.^''-^^-"''^'^^/(^

[A] See Vol. i. 290. A Grantee, where he appears to be a bare /A ^-''■^ t/^r^V"' J.' f
Truftee, is a good Witnefs to prove the Execution of a Deed to him- •/"^^'/f'' ^"/^y f^y^l' ' / >
fclf. ^^<,..>,^.>.'-^'^''^^''^.

a-'

i8i De Term. Pafcha, 1733.

'i^rS.^T. ,'.Z/,u'^j^..Z.:y(.rt2iA as a Wltnefs. [But note; the faid Thomas Bramp-

7fu' J- /3*.'//- J A- - /^z- fl^^ lliould have renounced the Executorfhip, and have
c:/^. //»,.«./. ^/^-,/s^^> v.. let another take out Adminiftration with the Will an-
'llX-'v-^/^J^. '/x/S/Xif^^./ nexed, upon which he might have been a Witnefs.]

'"■^ ''^" Zand 5. ^ 1 he next QLieition wa?, with Regard to the Manner

?/"lZrrvt^ are^Partncrs yf accounting, and touchIng the Allowances on the
"Js-, fJfij'T gives a Bond Account ; it being urged, that the Bond given by the
ii^.],i wlrioooz/aid Croft, in Truft for his Wife, was a Debt by Spe-

A. dies, t: e cialty, and given on a valuable Confideration, namely,
ner"drnini'- ^^'^ o^ Marriage and a Marriage Portion ; whereas
fters; ifthethe Imbezilment of the Stock by Qroft could be only
be paid out a Debt by fimple Contradl.

of the fepa-

rate Eftate of A. on there being EfFcJls, (he (hall have a Preference before other Creditors ; but
if there is no feparate Eftate, and the Wife would have Satisfaction out of the Partner(hip
EfFeds, then all the Partnerihip Debts muft be firlt paid, •

On the other Side it was faid, if the Plaintiff de-
fired Satisfa6lion of the Bond in Qiieftion out of the
feparate Eftate of the faid Croft the Hufband ; he muft
indeed in that Refpe6l be preferred to any fimple Con-
tract: Creditors : But if Satisfaftion was lought out of
the Partnerftiip Stock, all the Partnerihip Debts muft
be firft paid. And in the prefent Cafe, the Faft be-
ing (as was alleged) that the laid Croft^ the Hufband, had
taken out of the Stock zcoo /. and upwards, he had
no Stock left. And there could be no Colour of Rea-
fon, that Croft % Debt being by Bond, or even had it
been by Judgment, lliould be paid out of Sir Francis
Forbes '=> Moiety of the Stock ; and for this was cited
2 Vern. 295, 706. {a) that the Copartnerfhip Debts
{b) are to be firft paid out of the Partner Ihip Stock,
(in Cafe one of the Partners becomes Bankrupt) and
afterwards the feparate Debts.

2 And

(a) See alfo Vol. 2. 500. Ex parte Crozvdct.

(b) See alfo antca 25. Horfey'i Cafe, and £,v parte Rowland/on, poll.

De Term. Pafcb^, 1735. ^^3

And of this Opinion wis the Lord Chancellor, who
decreed, that it ihoiild go to an Account, to lee what
the Te{\.atoY Francis Croft, the Partner, owed to the Part-
nerfhip, and after theie Debts were paid, if there
fhoLild remain any Surplus in his Share of the Stock,
then that to be liable to antwer the Bond due from
Croft to the Truike of the Wife.

Thirdly, It appearing that Francis Croft, the deceafed^-j^'^j" '""
Partner, was indebted to Sir Francis Forbes m one Bond one Bond to
of 300/. It was infilled that, as Sir Francis had thef;^^^"^ ^^
Power of retaining that Bond out of the Aflets, fo the Bond to c.
fame being in his Hands, it amounted to a Retainer,^ andyV
and confequently that Bond ought to be allowed in the Executors.
Account before the Bond claimed by the Plaintiff. meddieswith

the Goods,
and dies before Probate, and before any Eledlion made to retain ; ^. Whether, as B.
might have retained the Goods in his Hands, Iiis Executors have not the fame Power ?

To which it was anfwered ; that notwithftanding
Sir Francis Forbes was appointed one of the F^xecutors
of the faid Francis Croft, yet he never proved the Will,
and dying before Probate, could not retain, efpecially
as he had never (ignified any Election, that he would
retain for the faid Bond.

Though it was replied by the other Side, that
fince an Executor may allign, releafe, and do every
Thing but declare before Probate, even as to the
Courts of Law ; there, was the fame Reafon for his
being able to retain before Probate ; and though in
the principal Cafe he had not expreily declared whe-
ther he would retain or not ; yet it was plain he
had Goods of his Teftator's in his Hands, had inter-
meddled therewith, and out of Part thereof had

buried

184 I^^ Term. Pafch^, 1735-

buried the Teftator, and after fuch Intermeddling (c)
could not have renounced the Executorfhip. But
the Counfel for the Defendant, the Executor of Sir
Frances Forbes^ waiving this Point of the 300/. Bond,
the Court gave no Opinion touching the fame. [B]

[B] A. lent Money on Bond to B. who dying Inteftate, C. took out
Adminiftration to him ; after which C. dying, A. took out Adminiftra-
tion De bonis non, ^c. to B. and it was determined, {rnler rt/*) that A,
might, out of the Aflets of 5. retain for fuch Bond- Debt contrafted be-
fore he took out Adminiftration ; and though J. happened to die before
he had made any Eledtion in what particular Effefts he would have
the Property altered ; yet the Court faid, it muft be prefumed he woul4
eleft to have his own Debt paid firft ; and this being prefumed, there
■would remain no Difficulty as to Altering the Property ; for as the Exe-
cutors of yi. were to account for the Aflets of B. they muft, on the
Account, .deduft to the Amount of the Money lent by J. to B. IVeekes
verfus Core, at the Rolls, Mich. 1720.

D E

i89

D E

Term. S. TrinitatiSj

1733-

Godfrey verfus Furzo. cafe44.

Lord Chan-
cellor King.

A Merchant beyond Sea, (xi/;^.) at Bilha, In Spain, k ir^nd
fenc Goods from thence to R a Merchant in^°°''^^°^:
London, for the Ufe of B„ and drew Bills on B. for Sea to the
the Money. The Goods arrived at London, wjilch B. ]^XfAS^
received, but did not pay the Bills, and died infol- Goods are
vent. _ Upon which the Merchant beyond Sea brought ^-^g ■^^f^■^_ '
a Bill agalnft the Executor of the Merchant in London, vent, I can-
praying that thefe Goods might be accounted for to coodsl^a'hn
him, and infifting, that he had a Lien on them, until ^''^^ '^ i ^^"'^
paid ; and that it would be extremely unreatonable, y^aor to
that his Goods, while unpaid for, lliould be liable ro ''■'"i'^^^, ^'^^'^
iatisiy Other Peoples Demands. And the Gate or one he becomes a
Clare was cited, as lately decreed by the Lord ^h^n- |^^'|,"^^J^p^^^
cellor, where a Merchant beyond Sea conhgned Goods are not liable
to a Merchant in London, to the Merchant in London s^°f^l'^J^^'^^^
own. Ufe, and drew Bills on the Merchant in Low^c^w, who, Bankrupt,
having received the Goods, became a Bankrupt ; yet
ic was held, that thefe Goods, which were not paid for,
Ihould not be liable to the Creditors of the Bankrupt.
Vol. in. B b b On

1 86 De Term, X Trhntatts, 1755.

On the other Hand the Attorney General urged,

that on Dehvery of the Goods to the Mafter of the

Ship beyond Sea, in Order to be fent to England^ the

Property immediately became vefted in the Merchant

in London^ who was to run the Rifque of the Voyage ;

A Trader- and Mr. Willes compared it to the Cafe of a Tradefman

",«"bi Oder '" ^ndony by Order of a Tradefman in the Country,

of a Trader- fending Goods to the latter ; in which Cafe, though

Countrl, ^ fh^ Country Trader does not appoint or name the Car-

fends Goods rier, who afterwards imbezils the Goods, the Trader

whodoinot'n the Country mult ftand to the Lofs, as had been

appoint or determined by the Lord Chief Tuftice Vyre at Sbrenpf-

name the , ,« ' •' "^ ^

Carrier; zf- VUrj) AluZeS.

terwards the

Carrier imbezils the Goods ; the Trader in the Country muft ftand to the Lofs.

Lord Chancellor: Were the Law to be otherwife in the
Inftance that has been mentioned, it would create the
utmoft Difficulty in Dealing. A fortiori, where a Tra-
der in London fends Goods to a Trader in the Coun-
try, who receives them, and does not pay for them,
the Property muft in that Cafe veft in the Trader in
the Country. As for the Cafe of Clarcj I do not well
enough remember all the Particulars of it ; but pro-
bably there were Circumftances of Compaflion therein,
which might weigh with the Court. When a Merchant
beyond Sea conligns Goods to a Merchant in London,
on Account of the latter, and draws Bills on him for
fuch Goods ; though the Money is not paid, yet the
Property of the Goods vefts in the Merchant in London^
who is credited for them, and confequently they are
liable to his Debts. But where a Merchant beyond Sea
configns Goods to a Fa6lor in London, who receives
them, the Fa£tor in this Cafe being only a Servant or
Agent for the Merchant beyond Sea, can have no Pro-
perty in fuch Goods ; neither will they be afFeded by
his Bankruptcy ; And the Lord Chancellor faid, he
4 '^ ' had

De Term. S. Trim tat is, 1733. *^7

had difcourfed with Merchants about the Matter, who
held this to be the Praftice amongil: them ; and there-
fore in the principal Cafe the Court denied granting an
Injun£lion to ftay the Executors of the Merchant in
London from difpoiing of the Goods, [a]

Hall verfus Hardy. ^"''"+5.

■^ Sir Jofeph

Jekyll, Ma-

T |PON a Bill brought to compel the Defendant to^^';/'*'
^-^ make a fpecifick Performance of an Award, Bin lies to
the Cafe was thus: The Plaintiff and Defendant were J^^'^PfJj^^
Brother and Sifter, between whom there was a Difpute Performance
touching the Fee-fimple of a fmall Parcel of Land f "" ^^^^'^'^

1 • J n t • •/V to convey an

under their Father s Will ; and the Plaintiff and De- Eftate,wheie
fendant entered into a Bond in the Penalty of 200/. fJ^'^J^t^jiJ,^
to ftand to the Award of Arbitrators touching this ^^^ received
Matter. The Arbitrators made an Award, that the Sn^conii-^*
Plaintiff fhould pay 10/. to the Defendant at fuch a <ieration
Day, and 30/. to the Defendant at another Dayj and is to convey
that thereupon the Defendant fhould procure his Wife j.he Eftate
to join with him in a Fine and Deed of Ufes, and
thereby convey the Premiffes to the Plaintiff" and his
Heirs. The Plaintiff paid the Defendant the i o /.
which the Defendant accepted upon the Day on which
it was awarded to be paid; afterwards the Plaintiff'
tendered the remaining 30 /. on the Day on which
that was awarded to be paid, and the Defendant was
willing to take the Money, but would not execute the
Fine and Deed of Ufes. Wherefore the Plaintiff

brought

[A] A Trader in London having Money of J. S. (who refided in
Holland) in his Hands, bought Souih Sea Stock, as Faftor for J. S. and
took the Stock in his own Name, but entered it in his Account Book,
as bought for 7- S- after which the Trader became Bankrupt. Deter-
mined, that the Truft Stock was not liable to the Bankruptcy. By the
Lord Parker, who faid it would leflen the Credit of the Nation to make
fuch a Conftruclion. Ex parie Cbion, Trinity^ 1721.

1 88 De Term. S. Trinitatis, 1735.

brought this Bill to compel the Defendant to a fpecl-
£ck Performance of the Award.

Upon opening the Caufe, the Matter of the Rolls
faid, he thought this a ftrange Bill ; for which he knew,
no Precedent, and that the Plaintiff muft fue his
Bond.

Whereupon I urged, that the Plaintiff had a6lually
paid the i o /. according to the Award, and the De-
fendant accepted it, and thereby undertaken to perform
the Award ; that if this Suit were not to be allowed,
the Plaintiff would have no Remedy to get back the
Money paid by her to the Defendant ; that in 2 Vern.
24, Norton verfus Manfell, the Court decreed a fpeci-
fick Performance of an Award, though in that Gate it
was not executed, and in Striftnefs of Law, void.

To which his Honour replied, that becaufe the
Award was not good in Law, therefore in the Cafe
cited there might be Reafon to decree a fpecifick Per-
formance. However, the Court defiring to know what
the Couniel for the Defendant had to fay, as to the
Defendant's having accepted Part of the Money ; it
was infifted on his Behalf to be fufficient, that there
was (unlefs in very particular Circumftances) no In-
ftance of a Bill being brought for a fpecifick Perfor-
mance of an Award. Befides, that this was an un-
reafonable Award, (tv^.) that the Huiband lliould pro-
cure his Wife to join with him in a Fine, which it
might not be in his Power to do ; and therefore the
Court would not oblige him to it. AUo the Wife's
Joining ought to be free, and not by the CompuUion
of her Hufband ; that the Plaintiff had a plain, proper
and natural Remedy, which was, to fue the Bond,
whereon the Penalty would be recovered ; and even as
to the Money which had been paid, if the Defendant

2 would

De Term. S.Trinitatis, 1733. 1 89

v/ould not perform the Award by procuring his Wife
to join with him in a Fine, the Plaintiff might recover
it back, as received to the Plaintiff's life.

Mafler of the Rolls : There have been a hundred Pre- Where the
cedents, where, if the Hulband for a valuable Confi- ""^'"V'''

. n . ' • • ^ valuable

deration covenants, that the Wife mall join with him Confidera-
in a Fine, the Court has decreed [B] the Hufband to na°nt's,*^that
do it, for that he has undertaken it, and muft lie by hisWifefhail
it, if he does not perform it. The Money paid inhi'mTna
Purfuance of the Award cannot be faid to have been J^'"^ J this
paid by the Plaintiff to the Ufe of the Plaintiff him- enforce a
felf ; and the Precedent in Mr. Fernon fhews, that this Performance
Court has decreed a ipecinck Pertorm.ance or an Award, venant.
which is more efpecially reafonable in the prefent Cafe,
where the Plaintiff has paid, and the Defendant ac-
cepted. Part of the Money awarded ; for by this Ac-
ceptance the Defendant has undertaken to perform the
Award, has confented to it, and made it his own
Agreement for a valuable Confideration, (^7!^.) the Mo-
ney paid him. Wherefore, take a Decree for the De-
fendant's Performance of the Award, upon the Payment
of the Reiidue of the Money awarded, and let him
pay Cofls, it being a Defence againfl Confcience to
rake the Money awarded, and yet refufe to perform
his Part of the Award.

[B] Becaufe in all thefe Cafes it is to be prefumed, that the Huf-
band, where he covenants, that his "Wife fhall levy a Fine, has firft
gained her Confent for that Purpofe. So faid by the Mafter of the
Rolls, in the Cafe of Winter wexins Utvreux^ Trinity, 1723; and that
the Intereft in fuch Covenant has been taken to be an Inheritance de-
fcending to the Heir of the Covenantee. But, after all, if it can be
made appear to have been impoffible for the Hufband to procure the
Concurrence of his Wife, (as fuppofe there are Differences between them)
furely the Court would not decree an Impoffibility, efpecially where the
Hufband offers to return ail the Money, with Intereft and Cofts, and to
anfwer all the Damages.

Vol. III. Ccc Note;

1^0 Dc Term. S. 7rinitatis, 1735.

Difference Notc J Thcfc Dccrees may not have been ufual,

^^^IsM pay becaufe Awards are commonly to pay Money ; in

Money, and which Cafes a Bill in Equity to compel a Performance

Thing^coi- is improper ; but where the Award is to do any Thing

^T^^'p ir'^ in Specie, as to convey an Eftate, tfc. in fuch Caie, if

Equity may the Defendant has accepted the Money awarded him in

^^i^T" Satisfadion of the Conveyance, it is highly reafonable,

pei'a Perfor- that he {hould make the Conveyance ; the rather, for

w "^'^'^^^3t if the Plaintiff had fued the Bond at Law, the

Defendant would have been relievable by Bill in Equity

againft the Penalty of the Bond, upon a ^lantum dam-

nificatits. So that fuch a Decree, as in the principal

Cafe, prevents a Suit in Equity.

Cafe 46. Colt 071 verfus Wilfon &f al\

Lord Chan- ^

cellar Kin?

One articles np HE Defendant, Mr. WiUon, was a Counfel of

to buy Land, I t-t t i • in- i i j • i i

and the Title "^ jNouc at Leeds, m Torkjbire, and had articled to
Wiiitot^ pnrchafe an Eftate in Tork/Ime for 4700/. The Ar-
proved in E- tides wcic dated the 20th oi February , 1724, and this
JhcHc^n'm ^'^^ ^^'^^ ^° compel him to compleat his Purchafe, and
in feme Cafes pay his Purchafe-Money.

Equity will
compel the

Purchafer to xhc Cafe was thus : This was Part of the Eflate of
Tide. Henry Taylor, who had no Iffue, but had two Brothers,
George and Hugh Taylor ^ the fald Henry Taylor had
mortgaged the Premilles for a coniiderable Sum,
amounting to near as much as the Purchaie-Money,
and owing other Debts, he made his Will, dated the
20th of February, 1722, thereby devifmg all his Real
Eflate to his youngeft Brother, Hugh Taylor, and his
Brother-in-Law, (one Reresby) and their Heirs, in Truft
to fell, and pay his Debts and Legacies ; and what re-
mained after Debts and Legacies, was to go, by the

4 ^Vil^p

De Term, S. Trim tat is, 1733. ^9^

Will, to the Teftator's next Brother and Heir, Qeorge
Taylor^ who was beyond Sea, in the Service of the
'Eafi India Company. Soon after the Teftator died.
Eugh Taylor^ the Teftator 's youngeft Brother, and one
of the I'ruftees in the Will, alone covenanted, by Ar-
ticles dated as above, with the Defendant Wiljon, to fell
Part of the Truft Eftate to the Defendant IViIfon for
4700 /. and to conv^ey the fame to IV/lfon at his Re-
queft, who covenanted to pay Intereft for the Purchafe*
Money from Lady-day then next. The Creditors of
the Teftator, Esnry Taylor., bring their Bill agalnft the
Defendant, IVilfon, to compel him to compleat his Pur-
chafe, and to pay his Purchafe-Money, to the End they
might be fatisfied their Debts.

The Defendant Wilfon faid, he believed Henry Taylor^
the Teftator, did duly execute his Will, and devdfe the
Premifl^es to be fold, and admitted the Articles, and
that he was ready to proceed in his Purchafe, all pro"
per Parties joining. The Will was proved in this Court
to be duly executed ; But the Heir who was beyond
Sea, in the EaJ} India Company's Service, though made
a Party-Defendant, yet had not appeared to, or an*
fwered, the Bill ; and the Defendant IVilfon^ though he
was at firft willing to purchafe the Prcmiftes, and had
entered on good Part thereof; yet other Part of this
Eftate, on which he had not entered, being much out
of Repair, the Tenants racked, and the Rents likely
to fall, he was now delirous of being difcharged from
his Purchafe.

And it was on his Behalf infifted, that this being in
the Cafe of a Will not proved in Equity againft the
Heir, it was a defe£live Title ; that none of the Wit-
neftes, that had been examined for the Will, could be
read againft the Heir, who in this Cafe was probably
Adverfary, and offended by the Will : Or elfe it mighc

192. De Term. S. Trinitatis, 1753.

be reafonably prefumed, that he would, though beyond
Sea, have been prevailed on to put in his Anfwer to
the Bill : But that the Heir might watch for an Op-
portunity till the WitnelTes to the Will fliould be dead,
when he would conteft the Will ; and though the De-
fendant had faid in his Anfwer, that he was willing to
proceed in the Purchafe, yet it was upon Terms, that
all proper Parties fhould join, one of which proper
Parties was the Heir at Law ; and that it would be a
Difficulty on the Court to compel an unwilling Pur-
chafor to accept of a Purchafe, if there were any Co-
lour of Objeftion to the Title, {a)

Though it Lord Chancellor : It is very proper that a Will dlf-

proveTwm pofing of Lauds lliould be proved in Equity, efpecially

of Lands in in the Cafe of a modern Will. But I cannot fay this

thr'fame'Ts ^s abfolutely necelTary to make out the Title, any more

rot abfoiute- than it would be to prove a Deed in Equity, by which

any" more the Eftate is fettled from the Heir at Law, after the

than it is to ^j^^^ef^Qj-'g Death. The Will prevents and breaks the

in Equity. Defccnt to the Heir, as much as a Deed, and the Hands

of the WitneiTes to the Will may be as well proved as

thofe to a Deed, and it is the better, if in the Indorfe-

ment to the W^ill it is mentioned, that the Will is at-

tefted by three Witnelfes, who lubfcribed their Names

in the Prefence of the Tellator.

Now, as it would be no Objeflion to a Title, if a
modern Deed, on which the Title depended, was not
proved in Equity, why fliould it be fo in the Cafe
of a Will, where the fame appears to be duly at-
tefted by three Witneffes, whofe Names are mentioned
to have been fubfcribed in the Prefence of the Te-
ftator ? But in the prefent Cafe it appears the Defen-
dant, who articled for the Purchafe, knew at that Time
that the Heir was beyond Sea, and ftill accepted the

I Title,

{a) See Marlow verfus Smithy Vol. 2. 201.

De Term. S. Trinitatis, 17 3 3. 195

Title, without infifting that the Heir fhoiild join, or
that the Will (hould be proved againlT: the Heir. Alfo
the Defendant admits by his Anfwer, that the Will was
duly executed, and by entring upon great Part of the
Ertate, has himfelf executed the Purchafe ; for which
Reafon let him pay the Reft of the Purchafe Money,
with Intereft, according to the Articles, and at the
fame Time let the Truftees and Mortgagees join in
proper Conveyances to the Defendant the Purchafor.

It feems in this Cafe to have been a great Help to
the Title, that the Mortgage made by the Teftator, and
prior to the Will, was for the greateft Part of the Pur-
chafe Money, which muft be kept on Foot for the Pro-
teftion of the Title.

Rogers verfus Rogers,

Cafe 47.

Lord Chan-
cellor King.

/^NE made his Will, and thereby gave 5/. to his q^^ ^^^j^^^
^-^ Brother, (who was his Heir at Law) and made '"s wife his
and conftituted his dearly beloved Wife his fole Heirefs ^^^^ Execul
and Executrix of all his Lands, and Real and Perfonal "' yf a'l
Eftate, to fell and difpofe thereof at her Pleafure, and to perfonai e-
pav his Debts and Legacies- The Queftion was, whe- ^*=''<^' .V° ^^'^

■T y n r t • ^"'^ difpofe

ther the Wife was a Trunee for the Heir at Law, as to thereof at
the Surplus of the Real Eftate, after the Payment of the [^J pf ",[;f '
Teftator's Debts and Legacies ? Debts and

Legacies,
anJ gives his Brother (who was his next of Kin and Heir) 5/; the Wife has the Rcfidue to
her own Ufe, and not as a Truftee.

After great Debate by Counfel on both Sides, the
Lord Chancellor decreed, that the I'eifator's Wife was
intitled to the Premifles devifed, for her own Benefit,
and that there was no refulting Truft to the Heir at
Law of the Teftator ; that the Cafe of North verfus
Crompton, i Chan. Rep. 1 96. was in Point j that the

Vol. III. D d d Devife

194 De Term. S.Trinitatis, 173?.

Devife that the Wife fliould be fole Heirefs of the Real
Eftate, did in every Refpeft place her in the {a) Stead
of the Heir, and not as a Truftee for him ; that it was
the plainer, by Reafon of the Language of Tendernefs
and Affe£lion, his dearly beloved Wife, which miift in-
tend to her fomething beneficial, and not what would
be a Trouble only. And what made it ftill ftronger
was, that the Heir was not forgot, but had a Legacy
of 5 /. left him.

Memorandum : On the other Side was cited the
Cafe of The Countefs of Briflol verfus Hungerfordy 2 Vern.
645. where one devifed his Real Eftate to be fold for
the Payment of his Debts, and the Surplus, if any, to
be deemed Perfonal Eftate, and to go to his Executors,
to whom he gave 20/. a-piece. Decreed the Surplus a
Truft for the Heirs at Law. But the Court thought
this a [C] ftrange Determination, and to go much
too far.

Thompfons

(a) See Noy, 48. dementi verfus Cajfy. Hob. 34. Counden verfus
Clerk. Sty. 308.

[C] This may well be thought a ftrange Determination, and the ra-
ther, for that Mr. Vernon fays it was affirmed in Parliament. The Cafe
is differently reported in the Book intitled Precedents in Chancery, (p. 81.^
where it is faid, the Surplus was decreed a Truft in the Executors, fub-
jeft to Diftribution. And this is warranted by the Regifter's Book.
The Decree appears to bear Date 3 July, 1697, and to have been made
by Sir John "Trevor, the [then] Mafter of the Rolls. The Words
whereof are as follow : " And as to the Surplus of the faid Eftate, after
the Debts and Legacies paid, his Honour, having been attended with
the Will, and having confidered thereof, declared, that the faid Te-
ftator having by his faid Will given to each of his Executors 100/. a-
piece, there is a refulting Truft in them for the Benefit of the Repre-
fentatives of the faid Teftator ; and that the Defendants Mrs. Reppin-^-
ton and Mrs. Meredith, who were Coheirs and Reprefentatives of the
faid Teftator, Sir William Bajfet, were well intitled thereto •, and
doth therefore order and decree, that the Refidue and Surplus of Sir
William Bafei's Eftate, his Debts and Legacies being paid as aforefiid,
be equally diftributed between them." It further appears by a fuble-
quent Order of the 18th of November, 1708, in the above mentioned
Caufe, that this Part of the Decree was affirmed in Parliament, for it

recites.

De Term. S. Trinitatis, 1735. 19?

Thompfons Cafe. ^''"^48.

Lord Chan-

T . i^ cellar King.

HIS Caufe being at IffLie, a Commiffion was ^ ^,^^^^1^
granted to examine WitnelTes at Algiers^ in Africa, ^on being
where (among others) two Witnefles were examined g^am-ne "*
for the Plaintiff. But it fell out, that before the Exe- Witneflbs at
cution of the Gommillion, the Plaintiff died, but nei- piSmiff^ ^
ther the CommilTioners nor Witneffes had any Notice ^'f|» ■'/
of the Plaintiff's Death. And one of the Witneffes striftnefs.the
thus examined was dead, the other was living. The ^"'^ f'W^r^'

' ^ but the Wit-

Plaintiff thus dying before the Execution of the Com- neffes were
miflion, it was infifted, that the Suit was thereby a- t^erT before
bated, the Execution of the Commiffion for that Rea- Notice of
fon irregular, and that the Depoiitions (hould be fup- Ji]^,^^"^^,^.
preffed ; and there being fome Doubt about the Fa61:, the Exami-
the Court referred it to the Mafter (Air. Lightbourn) to "egdar, ^tho*
ftate the Fa£l, with his Opinion thereon. o"f. ^f the

' *■ Witneffes

was yet li-

The Mafler ftated the Fail to be as above ; together ^'"S-
with his Opinion, that the Depofitions were regularly
taken, it being before Notice given to the Commiflioners,
or Witneffes, that the Plaintiff was dead ; and that this
being in a Court of Equity, and done to fatisfy the
Confcience of the Court ; the Depofitions of the Wit-
neffes, where neither the Witneffes nor the Commif-
fioners had Notice of the Death of the Plaintiff", might

reafonably

recites, that the Decree of the 3d of July had been figned and inrolled,
and that the Judgment-Creditors appealed to the Lords in Parliament,
who on the 26th of February, 1703, adjudged, that the Decree, fo far
as it had been executed, fhould not be fet afide or opened : But that, as to
the Money remaining undivided, purfuant to the Decree, the Appellants
were to be let in to a Satisfaftion of their Debts, according to the Pri-
ority of their feveral Securities, After which the Order proceeds to give
fome Direftions in Regard to the Creditors. It is obvious to perceive
that the fame Perfons being Heirs and likewife next of Kin, (though they
took only in the latter Capacity) occafioned this Miftake in Mr. Vernon^s
Report of the Cafe.

1^6 De Term. S. Trinitatis, 1733.

reafonably be of as great Weight, as if the Plaintiff
had been really then living : Otherwife great Delay
and Expence might enfue to the Suitor ; and as to the
Witnefs that died after Examination, if his Depofitions
were to be fuppreffed, the Plaintiff, by the A£l of
God, would be quite deprived of the Benefit of his
Teilimony ; and the Mafter grounded his Opinion on
the Cafe of Sir Randolph Crerp verfus George Vernon^ Efq;
[b) where, upon a Commiffion to examine Witneffe?,
fome of the Witncffes were examined after the Demife
of the Crown, but before the Commiffioners had No-
tice thereof, and the Commiffioners furceafed their
Examination after fuch Notice ; and the Lord Keeper
[Coventry] the Juftices Jones, Teherton, and Crook, with
WitnefTes Mr. Baron Denham, held the Examination regular ; and
rcomnilf-'" ^^^ J^'^g^s further held, that the faid Examination be-
fion after the ing before Notice of the Demife of the Crown, the
Se'crown, Witucffes might be indifted for Perjury if they fwore
but before falfe ; in Regard what the Commiilioners did was le-
therrof, lia- gal, and no Inconvenience could refult from allowing
h'^'^ ^^ '"' ^^^^ Evidence ; whereas if it were to be adjudged other-
Perjur)', if wife, many Trials, Verdi£ls and Attainders, where the
theyfwear Proceedings were after the King's Demife, but before
Notice thereof, would be irregular, which w^ould be
very mifchievous.

Whereupon, after hearing Counfel on both Sides,
the Lord Chancellor faid, the Mafter's Report was a
very judicious one, and held the Depofitions to be
regularly taken.

Then it was infilled by the Attorney General, that
the Depofition of the Witnefs that was living, and who
might be examined over again, might be fuppreffed.

(^) Cro. Car. 97. See alfo i Vern. 400. Biirch v^tkis Ma\pczvder.

2 Eut

De Term. S. Trinitatis, 1733. ^^7

But his Lordfhip faid, he would make no Difference;
and that, though in Stri6lnefs there was an Abatement
by the Death of the Plaintiff, and no fuch Caufe in
Ejfej as that in which the WitnelTes had been examined;
yet it being in a Court of Equity, and where the Com-
miflioners and Witneffes had no Notice of the Plain-
tiff's Death, it could not, in Reafon or Juftice, affect
the Validity of the Depoiitions, which were therefore
allowed to ftand in toto, as well with Regard to the Wit-
nefs now living, as to the Witnefs that was dead.

Lord Carteret verfus Pafchal. cafe49-

Lord Chan-
cellor King.

UPON the Marriage of Sir Thomas Bromfall with
Mary Coling, Articles were entered into, dated
the 7th of October, 1704, whereby Sir Thomas Bromfall
covenanted to fettle 500/. a Year on his then intended
Wife Marj) for her Life, for her Jointure.

Sir Thomas Bromfall, foon after the Marriage, died ;
and Dame Mary, his Widow, brought her Bill in E-
qulty to recover her 500/. per Annum, and the Ar-
rears and future Payments. And whereas the Lady
Bromfall had agreed to buy in a Mortgage on Part of the
Real Efface of Sir Thomas Bromfall, comprifed in thefe
Articles; on the 5th of March, feptimo Ann^, it was
decreed by the Lord Chancellor Corrper, that the Pof-
feffion of certain Lands mentioned in the Decree, Part
of the Real Eftate of Sir Thomas Bromfall, and which
was liable to a Mortgage before made thereof, lliould
be forthwith delivered to the Lady Bromfall; and that
the Tenants thereof ffiould pay their Arrears of Rents
and future Rents to her, and that (lie ffiould enjoy the
fame, until Ihe iliould be reimburfed what ihe llioulJ
Vol. III. Bee have

jpS De Term. S. Trim tat is, 175?.

have paid towards the Mortgage on the Eftate, with
Interell, and h'kewife all Arrears of her Annuity or
yearly Rent of 500 /. with Cofts, and the Mafter to
lee what the fame Ihould amount to*

Lady Bromfall married Doflor Herbert ; whereupon
the Suit being revived, the Mafter reported 4527/.
I 5 J. 7 </. to be due for the Arrears of this Rent at
Lady-day, 1 7 1 4 ; which Report was confirmed. By
Indenture dated the 9th of June, 1729, Do6lor Her"
bert affigned the faid Arrears of 4527 /. i 5 j. 7 </. and
all fubfeqnent Arrears, together with all Benefit of the
faid Decree, and the Proceedings thereupon, to the
Lord Carteret and Sir Clement Cotterell, and alfo demifed
the faid Annuity or yearly Rent of 500 /. unto them
the faid Lord Carteret and Sir Clement Cotterell, for
ninety Years, if Doftor Herbert and Lady Bromfall his
Wife fhould fo long live; and by Deed Poll dated the
1 2th of the faid June, 1729, it was declared, that
the faid Affignment was intended to veft the Property
of the laid Debt in the faid Truftees, in Truft, that after
the Lady Bromfalfs Death, and not before, they fhould
pay 500 /. due from Do6lor Herbert and his faid Wife,
to Sir Tfjomas Crofs, Baronet ; and afterwards fhould pay
3900/. to the Lady Granville, in full of all Demands
due to her, and in Truft to pay the Refidue to fuch
Perfons, and in fuch Manner, as he by his Deed or
Will fhould appoint.

In OSiober, 1729, Do^or Herbert died: Afterwards
Lady Bromfall, furviving her faid Hufband, died on
the 2d o£ April, 1730.

Under this Affignment and Deed of Truft made

by Do£lor Herbert, Sir Thomas Crofs claimed his Debt

of 5; CO /. upon a Bond due from Doftor Herbert ;

Lady Granville alfo claimed the 3 900 /. by way of

1 Debt

De Term. S. Trinitatis, 1735. ^^^

Debt due from the faid Do6lor Herbert. And the Af-
fignment being voluntary as to the Surplus, the Qiie-
ftion was, whether the Adminiftratrix of Do£lor H<?r-
hert^ who was the Defendant Susannah Herbert , or the
Admin irtratrix of Lady Bromjally who was the Defen-
dant Elizabeth Pafchalj was intitled to this SurpKis ?

And firft it was admitted on all Sides, that if a A Man pof-
Man in his own Right be intitled to a Bond, or other ^^^ °^ ^^_
Chofe en A^ ion, he may aflign it without any Conli- /'W, in his
deration ; but here, it was faid, was a Chofe en ^(^^w, ^yaffignir,
which the Hufband had only in Right of his Wife, in though with-
which Cafe he had no {c) abfolute Title to it, butjemion?"'
only a Right to endeavour to reduce it into PofleiTion,
if he could, during the Joint- Lives of him and his
Wife; which, if he fhould not be able to do, the
fame would remain, as it was originally, in the Wife;
for which the Cafe in 2 Vern. 401, oi Burnet verfus
Kinafion, was cited, and relied upon as in Point ; the
Court alfo appearing to be of the fame Opinion.

idly. It was agreed, that where the Baron is thus Bamn pof-
intitled to a Chofe en JSiion [D], as he may releafe or chofi en X-
forfeit it, fo if he fhould aihgn it for a valuable Con- """" i" ^'g'^t
lideration, (as had undoubtedly been done in the prin- may aflign it
cipal Cafe, in Refpeft to Sir Thomas Crofs and Lady !?''^^?'"=''''*
yjranmle) it would be good. tion. Secus,

as it feems,
if there be no Confidcration.

(f) See ant' 87, in the Cafe of Jones verfus Tbe Earl of Strafford.

[D] It is to be obferved, that in all Cafes where a Hufband makes
a Settlement of his own Eftate on his Wife, in Confidcration of her
Fortune ; the Wife's Portion, though confiding of Chofes en A£iion, and
though there be no particular Agreement for that Purpofe, is looked
on as purchafed by him, and will go to his Executors. Preced. in Chan.
63, Cleland verfus Cleland, and 2 Fern. 501, Bhis and Martin verfus
Lady Hereford. The fame Point appears to have been determined by
the Lord Cowper in the Cafe of Packer verfus PTyndham, Mich. 1 7 1 5,
according to the Author's Report of that Cafe.

idly.

200 De Term. S. Trinitatis, 1733,

3^/y, It was alfo admitted, that in the principal Caie
there was a Diverlity betwixt the Arrears of Rent, that
accrued during the Coverture, and fuch as had grown
due before the Coverture ; and that, as the Profits of
the Wife's Land would belong to the Hufband during
the Coverture, fo the Rent iffuing out of the Land
during that Time, and which was payable by the Ter-
tenant in Refpe£l of the Profits, might belong to the
Hufband ; for which Reafon, the Authorities (ay, that
the Hulband may alone avow for Rent incurred during
the Coverture (d).

But, with Regard to the Decree obtained for thefe
Arrears by the Hufband and Wife, it was inlifted, that
this did not any way alter the Cafe ; for that the De-
cree was but in Nature of a Judgment, and if there
fhould be a Joint Judgment obtained by the Hufband
and Wife, and the Hufband in his Life-Time, without
any Confideration, fhould aflign it, this would not
prevent the Judgment (nor by the fame Reafon a De-
cree) from furvivlng to the Wife, if the Hufband fhould
die firft, as he did in this Cafe ; and that confequently
the Adminiftratrix of the Lady Bromjall was intitled.

If the w^fe The Lord Chancellor took Time till the next Day
meiu, and it to confider of it, when he declared it to be his Opi-
is extended j-jjon, that not only Sir Thomas Crofs and Lady Gran-

upon an t/f- '. nri i-ir- i\

^,v, the Huf- ^77/^, (mlruit tor whom this Aihgnment was made)
fian'^irwith^^ ^^ they were juft Creditors, and for a valuable Confi-
out a Confi- deration, were intitled to the Benefit of fuch Allien-
if"''j°3g'. ° ment J but that alio, confidering how this Caie was

ment be gi-
ven in Truft for a Feme Sole, who marries, and by Confent of her Truftees, is in Poflcflion
of the Land extended, the Hufband may aflign over the extended Intereft; and by the lame
Reafon, if the Feme has a Decree to hold and enjoy Land'^, until a Debt due to her is paid,
and fhc is in Pofleffion of the Land under this Decree, and marricj; the Hultaad may affiga
it without any Confideration ; for it is in Nature of an Extent.

(^0 I Roll. Abr. 358,

2 ' clrcum*

De Term. S. Trinitatis, 17 35. 2.0I

circumftanced, even the voluntary Affignment of the
Surplus of the Arrears by Do£lor Herbert alrered the
Property, and would intitle his Adminiltratrix thereto
in Preference to the Admlniftratrix of the Lady Brom-
fall; for that the Decree faid, the Lady Bromjall fhould
hold and enjoy the PremilTes until paid, and that the
Tenants fhould attorn to her. Now it was admitted,
that under this Decree Do£lor Herbert and his Lady
were in PofTeflion until the Dodlor's Death ; the Con-
fequence of which was, that this was an equitable Ex-
tent, and to be taken as it would be, were it a legal
Extent ; in which Cafe it would be very plain, that
the HufLand alone might have affigned the extended
Intercft, as in the prefent Cafe he had done ; that
fuppofe a Judgment be given to A. in Truft for a
Feme Sole, who married ; and the Cognizee of the
Judgment in Truft for the Wife, and the Wife there-
upon, by the Confent of fuch Truftee, is in Pofieflion
of the Land extended ; furely the Hufband in fuch
Cafe might alone aflign over this extended Intereft, as
he might the Truft of a Term to which his Wife is
intitled ; according to a folemn Refolution of this
Court, and which was affirmed in the Houfe of Lords
in (e) Sir Edward Turners Cafe,

Wherefore his Lordfhip was of Opinion, firft, that
Sir Thomas Crofs fhould be paid the Money due on his
Bond ; next, that the Lady Granville was intitled to
her 3900/. and that the Surplus of the Arrears did
belong to the Admlniftratrix of Do6lor Herbert, and
not to the Adminiftratix of his Wife the Lady Bromjall.

This Decree was afterwards (/") affirmed in the
Houfe of Lords.

(e) I Vern. 7. 2 Vern. 270, 1'udor verfus Samyne; and Preced. in
Chan. 419, Packer v&xi\i%lVyndham. (f) Feb. 1734.

Vol. in. Ff f D E

202.

D E

Term. S. Michaelis,

1733-

Cafe 50. Brown Sf Ux verfus Elton.

Lord Chan-
cellor King.

On an .Jppeal from a Decree at the Rolls.

wifc^L^forC-'^^ J^^^^ Brorrw married a young Gentlewoman,
a Legacy gi- ^^ ^^q had 3. Lcgacy of 400 /. left her, payable at
Wife; the her Marriage. ^\t John Brown demanded the Legacy,
Court will |L)uj. j-jje Executor refufed to pay it, unlefs fome Settle-
the Payment mcnt, or Provifion were made for the Lady ; but on
thc'Hufba'nd ^^^°^^ '^^"^^ offered to pay the Legacy. Sir John re-
makes fome fufed to make any Settlement, (nor as yet had he made
^"t wk any) and with his Wife brought this Bill for the Re-
covery of the Legacy.

The Caufe being firft heard at the Rolls, it was
there ordered, that the Plaintiff, Sir John, fhould make
his Propofals before the Matter, and Ihould alfo pay
the Cofts of the Suit, in Regard it appeared, that the
Defendant, the Executor, as well before the Bill was
brought, as alfo by his Anfwer, offered to pay the

a Legacy,

De Term. S. Michaelis, 1735. 203

Legacy, on Sir Johns confentlng to make the Settle-
ment on his Lady.

And now, on Sir John\ Appeah'ng from this Decree
to the Lord Chancellor, it was inhrted by the Attor-
ney General and Mr. Willes, that this being a Legacy
given out of a Perfonal Ertate only, the Plaintiff and
his Wife might have fued for the fame in the Spiritual
Court, and recovered it, without being tied down to
any Terms of making a Settlement ; and Meafures of
Juftice ought, as much as poffible, to be uniform and
confiftent in all Courts ; that as this was a mere Per-
fonalty, which the Hufband might releafe (^), the im-
poling Terms upon him, was taking from him the Be-
nefit of the Law. Befides, 400 /. wars a fmall Sum
to require a Settlement for ; and there have been In-
ftances (^), where Equity has refufed to compel the
Laying out very fmall Portions ; that fince the Exe-
cutor had admitted AlTets, he was rather to be looked
on as a Debtor for this 400 /. than as a Truftee ; and
fuppoling it to be the Cafe of a common Debt, it
mult feem a pretty ftrange Defence made by a Debtor,
when fued by his Creditor, to fay, " I will not pay
" your Debt, becaufe you have not made a Jointure
" o« Settlement on your Wife.'*

In Anfwer to which it was urged for the Defen-
dant, that thofe who would have Equity, ought to do
Equity ; that where the Hulband could recover the
Wife's Portion at Law, Equity would not interpofe,
fo as to compel a Settlement or Provifion for the
Wife; but where the Hufband comes here to be afllfted
in Recovering his Wife's Portion, this Court may give
their Affiftance on what Terms they fhall think rea-
lonable ; and Nothing can be more reafonable, than

that

(a) See the next Cafe preceding.
{h) See Adams verfiis Peirce, ant' 13.

204 De Term. S. Michaelis, 1755.

that Care fhould be taken to make a proper Provlfion
for the Wife, and the liTue of the Marriage ; that
agreeable to this has been the conftant Pra£lice, as in
2 Vern. 494, Lady Oxendens Cafe, where it is faid by
the Lord Keeper [^^n^/;?] that a Court of Equity will
oblige a Hufband, who comes there for his Wife's Por-
tion, to make a Settlement upon her by way of Join-
ture, or to fecure a Maintenance to her, in Cafe fhe
furvives. So in 2 Vern. 616^ Lupton i^ Vx' verfus
Tempefl ^ al\ a Dlverfity is taken by the Lord Corvper,
between a Hufband and Wife's coming into Equity, to
demand an Execution of the Truft of a Real Eftate,
(in which Cafe the Court will make no Terms with
the Huiband, foraimuch as when the Wife has reco-
vered the Eftate, fhe may keep it;) and where a Huf-
band fues there for a Perfonal Demand, in Right of
his Wife; becaufe, as this latter, when recovered, will
belong to the Hufband, therefore this Court may infift
upon Terms, as being in Diminution of his Right.
Alto the Cafe of Jacobjon verfus Williams (c) was cited,
where the Hufband was a Bankrupt, and intitled to a
Legacy given to his Wife dum fola, and the Alfignees
under the CommiflGon fued for this Legacy; where-
upon the Lord Cowper, and after him the Lord Macclef-
Jield, denied Relief, until fome Provifion was made
thereout for the Wife; for that the Aflignees under
the CommifHon could be in no better Condition than
the Hufband, the Bankrupt himfelf ; and he would not
have been intitled thereto without Providing for his
Wife. So in the Cafe of Dod verfus Hall, on the laft
Day of Petitions before the prefent Lord Chancellor,
the Hufband was not allowed to have his Wife's Por-
tion, without firft making his Propofals before a Mafter,
in Order to a Settlement or Provifion for her.

2 Neither

■diltfl>aifa^>^-i>i>^di^<i±^la^aiibtfba>lliA^aiiaU&^Mia£^^^Ci^

De Term. Jl Michaelis, 1735. 2109

Neither was it material, what the Spiritual CoUrt
would have done, had the Huftand and Wife appHed
there for the Legacy; lince, as this was the conftant
Praftice of this Court, and a reafonable one too, there
could be no Colour to make a different Rule here from
what had been obferved in like Cafes: And though
the Sum was but 400 /. ftill it was fomething, and
might ferve to fupply the Wife with the bare Neceffa-
ries of Life ; that the Defendant, the Executor, could
not be confidered as a mere Stranger, for he was related
to the Wife, and confequently under a double Obli-
gation, both as her Relation and Truftee, (every Ex*
ecutor being a Truftee for the Performance of the
Will) to fee her provided for in the moft bepeficial
Manner.

Lord Chancellor : I found it to be the Pra61:ice at my
Coming into this Court, to inforce the Hufband, before
he recovers by the Aid of Equity his Wife's Portion,
to make a Settlement ; and as fuch Pra£lice has fo long
obtained, I ftiall not, at this Time, take upon me to
alter it ; although it feems to break in upon the legal
{d) Title, which the Hufband has to his Wife's Per-
fonal Eftate ; and this Method, however, intended ori-
ginally as a cautionary Provilion in Favour of the
Wife, has fometimes proved inconvenient, but yet
Cuftom and long Ufage have fufficiently eftablifhed it ;
neverthelefs I will reverfe that Part of the Decree be-
Jow, which orders the Plaintiff, Sir John Brown, to
pay Cofts to the Defendant ; for I will not condemn One ought
a Man to pay Cofts for infifting upon a Right, which condlm^d

to pay Cofts
in this Court, for infifting on a Right which the Law gives him,

(<0 See Milner verfus Colmer^ Vol. 2. (642.)

Vol. in. G g g the

20(5 De Term, S. Michae/is, 1735.

the Law gives him : So let there be no Cofts [A] on
either Side ; but as the Plaintiff, Sir John Broxvn, now
offers to make a Settlement upon his Wife, that Settle-
ment muft be made at his own Charge.

Cafe 51. ]Slightingale &f af verf. Comit Ferrers,

Sir Jofeph
Jekyll, Ma-

jier of the O Ohert-i late Baron (afterwards Earl) Ferrers, was
^ feifed for his Life only of his Family Eftate, with
Tenant for Remainder to his firft, ilfc. Son in Tail Male fuccef-
Life, Re- lively. The Lord Ferrers had feveral Sons, the firft of
the Son in whom, named Robert, was an Infant of about feventeen,
Tail, with ^^^ ^ ^g^y advantageous Match being agreed upon be-

Remainder . ^ . o O r ^

over. The twlxt the faid eldeft Son and the only Daughter of Sir
Infant ^"nd ^^^p^^^^y Ferrers ; Articles were entered into dated
onanadvan- 25th o{ September, 1688, and the Lord Ferrers and his
^rdfor die eldeft Son Robert were Parties to and fealed the faid
Son's Mar- Artlcles, whcrcby the Lord Ferrers covenanted, that he
Faher and and hls faid eldeft Son ftiould within a Year after the
Infant Son gou ftiould come of Age, bv Fine or Recovery, or fuch

join in Mar- , . ^ ° ^ „ rr l

riage Arti- Other gooQ Conveyauccs or Aliurances as the young
FrtheTonT^ Lady's Counfel fhould advlfe, convey and fettle the Bulk
covenants, of the Family Eftate, as to all the Premiffes (except the
fv^rtfter Mauors of Aflwell and Falcott) to the Ufe of the Lord
the Son's Ferrers for Life ; and as to the Manors of Ajinpell and
AgT,"the Fa- ^^l^ott, from the Time of the Fine and Recovery fuf-
ther and Son fered, and as to the Reft of the Premiffes from the
Fine^°a'nd " ^ Death of thc Lord Ferrers, to the Ufe of the faid Robert

Recovery of

the Family Eftate to divers Ufes. The Infant Son feals the Deed, and within a Year after
he comes to Age, joins with his Father in a Fine and Recovery ; the Infant Son's Sealing of
thcfe Articles not fufficient to declare the Ufes of the Fine and Recovery.

[A] Sed ^iCt' the Equity of this Part of the Decree, whereby the
Execuror was to pay Cofts out of his own Pocket, (that being the Con-
fequence of ordering no Cofts on cither Side) for a Conduft which the
Court itfelf has ever approved of.

1 Shirley

De Term. S. Michaelis, 1733. 207

Shirley for Life, Remainder to his firft, ^c. Son in
Tail Male fucceflively, Remainder to the Ufe of his
younger Brothers for their Lives fucceflively, Re-
mainder to their firfl:, ^c. Son in Tail Male fuccef-
lively, with a Power to the Lord Ferrers, the Father,
to revoke all the Ufes except thofe limited to his
eldefl: Son, and his then intended Wife, and their
Ifllie Male.

The Marriage took Effe(0:, and the Infant eldefl: SonJ
having thus during his Infancy fcaled this Deed to-
gether with his Father, afterwards came of Age, and
purfuant to the Covenant within the Year after coming
of Age, {vi^) in Michaelmas Term then next following,
joined with his Father in levying a Fine and fuffering
a Recovery ; but there was no Deed, after the mofl:
diligent Search, to be found, for leading, the Ufes of
this Fine and Recovery. Afterwards the Lord Ferrers
revoked the Ufes of all the Premifles limited to his
younger Sons and their Ifllie, except as to the Manors
of Aftwell and Falcon. Robert Shirley the eldeft Son foon
after died, as did alfo his faid Wife, leaving Iflue only
one Daughter, fince married to the prefent Earl of
Northampton. And the late Earl Ferrers, and alfo the
Sons that were elder than the prefent Earl Ferrers,
(who had been found a Lunatick) were dead without
JiTue Male.

This Matter was formerly fl;irred before the Lotd
King, who was of Opinion, that the faid Articles could
be intended as preparatory only to fomething further,
and would not of themfelves amount to a Declaration
of the Ufes. But now coming on again before his
Honour,

On Behalf of the prefent Earl Ferrers It was objefted,
that thefe Articles, that were executed by the Lord

Ferrers,

2o8 De Term. S. M'lchaelis, 1733.

teeners, the Father, and his Infant Son, were fufficient
to declare the Ufes of the Fine and Recovery.

The Deed of pi^ji^ ^ot that an Infant's Deed is not void, but
only void- Only voidable : For which Reafon an Infant cannoC
a'''^' plead JSlon efl fdtum to his Deed, as a Ferae Covert

may.

Secondly^ Becaufe wl^en the Infant in the principal
Cafe fealed the Deed, though there was no Covenant
from him to levy the Fine, and fufFer the Recovery
and declare the Ufes thereof, (chefe Covenants being
only his Father's;) yet the Infant Son's Sealing and
Executing the Deed had this EfFe£l:, {vi^.) to fhew his
Confent to the Deed, and confequently his Agreement,
that the Fine and Recovery ftiould enure to the Ufes
of the Deed. And fuppofing that, after this Decla*
ration of the Ufes by the Father, the Son had faid no
more in the Deed than that he confented and agreed
that the Fine and Recovery (hould be to thefe Ufes ;
this would have been fufficient to have declared the
Ufes, and furely thus much was implied by the Infant
Son's having executed the Deed.

Form'of* Thirdly, That a very flight Thing, and Words
Words re- though Very improper, will yet ferve to declare the
da're'Vhe*^^' Ufes of a Fine or Recovery, -which require no fet Form
Ufes. of a of Words for that Purpofe, but only enough to fliew
R^overv, it ^bc Intent of the Parties. Now here was fufficient
being fuA- Evidence of fuch Intent : And though this was done
Meaning of by an Infant ; yet when the Infant came of Age, and
the Parties j^^^^ within the exa£l: Time limited by the Articles,
levied a Fine and fuffered a Recovery; as his Exe-
cution of the Deed before, fliewed his original Inten-
tion to be, that the Fine, ^c, fliould be to thofe
Ufes: So his joining with his Father in the Fine and
Recovery, as foon as he came of Age, manifefted a
I Con-

De Term. S. Michaelis, 173^. 209

Continuance of fuch Intention. And as a Proof that
an Infant's Deed is not void, but voidable only, the
common Cafe Was mentioned of an Infant's making a
Leafe, referving a Rent, this Leafe is liable to be a*
voided : But if the Infant comes of Age, and accepts the
Rent, fuch Acceptance affirms the Leafe, and makes
the fame unavoidable*

Fourthly, The Infant Son*s continuing in Pofleflion
of the Manors of Aftrvell and Falcon after he came
of Age, to which Manors he could have no Title
during his Father's Life, but under the Articles and
Deed of Ufes of this Recovery, was faid to be a fuf-
ficient AfTent to the Articles.

Fifthly, Suppofe the Son had been an Infant as well
at the I'ime of the Recovery, as when the Articles
were executed, this had been good, and the Recovery
unavoidable after he came of Age ; and it furely could
not make the Cafe worfe, that the Son was of Age
when he fuffered this Recovery.

Farther: That the Infant's fuffering a Recovery in
Compliance with the Father's Covenant, was ffronger
fhan a Matter in paiis ; as in the Cafe before put of
an Infant's Accepting of Rent after he came of Age,
upon a Leafe made during his Infancy.

Mafler of the Rolls : I'hongh flight Words will de-
clare the Ufe of a Fine, i^c. yet here are no Words at
all ufed by the Infant Son, who did, it is true, join
with his Father in executing the Articles, but it was
the Lord Ferrers, the Father only, who covenanted,
that he and his Son would levy the Fine and fuflfer the
Recovery to thefe Ufes. The moft then that can be
made of this Cafe is, that here are a Fine and Recovery
by the Father and Son, the one Tenant for Life, the

Vol. IIL H h h other

210 De Term, S. Michaelis, 1733.

other a Remainder Man in Tail, and the Ufes are de-
clared by the Father, the Tenant for Life only, which
can no way afFe£l the Ufes of the Remainder in Tail.
Neither can it be reafonable to interpret the Son's Seal-
ing a Deed (fo blind and uncertain in its Nature) to
deveft fuch Infant Son of the Inheritance of this great
Eltate, and to make him but Tenant for Life there**
of. The Cafe put of an Infant's Affirming a Leafe
for Years made during his Infancy, by Acceptance
of the Rent after he comes of Age, is not fimilar ;
becaufe there the Rent is in Lieu of the Profits of the
Land ; whereas in the principal Cafe no Rent was re-
ferved, nor any Inheritance given to the Son in Return
for the Inheritance of this great Eftate, which the
other Side would conftrue him out of. Befides, this is
a ftale Point, given up by Earl Wajlnngton, the prefent
Earl's elder Brother, who gave the Earl and Countefs
of Northampton i 5,000 / to join in a Fine and Reco-
very, to relettle the whole Family Eftate, which accord-
ingly has been done in a folemn Manner, and fome
Provifion (though a fmall one) has been made for the
unfortunate prelent Earl the Lunatick. Wherefore the
Matter of the Rolls, agreeably to the Opinion of the
Lord King, difallowed and over-ruled this Claim, as
likely to put the Lunatick Earl to an unprofitable Ex-
pence and an unfuccefsful Suit. [BJ

[B] Sir Peter 'temple Tenant for Life, Remainder to his Son Richard
temple for Life, Remainder to his firft, i^c. Son in Tail, Sir Peter 'Temple
by Indenture Tripartite (between S\r Peter of the firft Part, Richard of the
I'econd Part, and J. S. of the third Part) covenanted to levy a. Fine of
the Premifles -, but Richard the Son did not join in any Covenant in the
Deed, nor in the Fine, but fealed the Deed. And by Hale Ch. Juft.
This can be no Surrender, in Regard the Remainder Man cannot fur-
render, but only releafe to the Tenant for Life. And the bare Sealing
the Deed by Richard the Son, will neither furrender nor releafe his
Eftate, confequently the Contingent Remainder to the firft, ^c. Son is
preferred, there being a Right of Freehold fubfifting in Richard the
Son, for the fupporting of this Right. Hales verfus Ri/l<:)', 3 Kek 3 26,
759^ SiS.

I Edmund

De Term, S. Michaelis, 1733. 21 1

Edmund Lechmere, EfqO

Nephe'W and Heir of the^h\\\x\S. ^^^^ 52-
late Lord Lechmere, j jiyK-

Jier of the

Charles Earl of Carlip,'^, ^"''

Elizabeth Lady Leeh-\
mere, Widov) and ^<3^- ;>Defendants.
mini fir atrix of the Lor d^.
Lechmere, & al\ \

'^ ^ H E Bill was brought by the Nephew and Heir
-*- of the late Lord Lechmere, to compel a fpecific
Performance of Marriage Articles.

Upon the Marriage of Nicholas late Lord Lechmere, Money a-
with the Lady Elizabeth Howard, one of the Daughters f^fd ^ut in
of the Defendant the Earl of CarMe, Articles were en- Land (hail

, . ,, ^ r A -1 11 ^^ taken as

tered into, dated 30th 01 April, ^1^9-, whereby, re- Land, and go
citing the faid intended Marriage, the Earl of Carlifle ^^ '!^^ ^l"!-

O 1 ° f . , AndnoDif-

covenanted to pay the Lord Lechmere 6000 /. as the ference
Portion of his faid Daughter, and the Lord Lechmere ^^"^^^ ^^^^^
covenanted for himfelf and his Heirs, with certain agreed to be
Truftees, within a Year after his Marriage, to lay out ^^^.^X'^^.
the faid 6000 I. and 24,000 /. of his own Money, in pofited in
the Purchafe of Freehold Lands and Tenements in Fee- Truftees/ "^
fimple, in Poflellion, in the South Part of Great Britain, ^'^^ ^hcre it
with the Confent of the Earl of Carlifle and the Lord the Hand's of
Morpeth, their Executors and Adminiftrators; the Lands'''^ ^.^Th
when purchafed to be fettled to the Ufe of the Lord Agreement
Lechmere for Life fans Wafte, Remainder to Truitees [;'"? '"S '«

J . . •'..?(, p . both Cafes,

and their Heirs during his Life, to fupport Contingent and making
Remainders, and after the Lord Lechmere\ Death, Jn"^*^^"*^-
Truft to pay 800/. per Ann, clear of all Charges, (ex-
cept

^mm^^^^

211 De Term. S. M'lchaelis, 17^5.

cept Parliamentary Taxes) to the Defendant the Lady
Ell'z^abeth Horpard, his then intended Wife, for her
Jointure, and after the Determination of thefe refpec-
rive Eftates, Remainder to the firft, iffc. Son of the
Marriage in Tail Male, Remainder to Truftees for 500
Years, to raife Portions for Daughters of the Marriage,
Remainder to the Lord Lechmere in Fee. The 500
Years Term to be void if no Daughter, and until the
Purchafe made, the Intereft to be paid to the feveral
Parties that would have been intitled to the Rents and
Profits of the Land when purchaled, at the Rate of 5 /.
per Cent,

The Marriage took Eflfe£l, and the Lord Citrlife paid
4000 /. Part of the Portion to the Lord Lechmere, and
gave his Bond for the Remaining 2000/. which had
alfo been fince paid to the Defendant the Lady Lech"
mere.

The Lord Lechmere was feifed of fome Lands in Fee
at the Time of the Marriage of about 3 00 /. per Ann.
and after his Marriage purchafed fome Eftates in Fee
of about 5 CO /. per Ann. and fome Eftates for Lives,
and other Reverlionary Eftates in Fee, expeftant on
Lives, and contrafled for the Purchafe of fome Eftates
in Fee in PofTeflion, and on the i8th of June, 1727,
died Inteftate, without Ifllie, and without having made
a Settlement of any Eftate. None of the Purchafes or
Contrails were made by the Lord Lechmere with the
Confent of the I'ruftees. Mr. Lechmere, his Lord-
Ihip's Nephew and Heir, brought this Bill to have a
fpecifick Performance of the Articles, and the 30,000/.
laid out as therein is agreed, and to have Intereft at
the Rate of 5 /. per Cent, in the mean Time.

The Defendants in their Anfwer infifted; that the

Lord Lechmere intended only a Prov^iiion for the Lady

I and

Mi^^BM^M^

De Term. S. Michaelis, 1753. 215

and the Iflue of the Marriage : And the Plaintiff
claiming under the Limitation of the Remainder in
Fee to the right Heirs of the Lord Lechmere, the Ar>-
tides as to him were vokintary, and therefore ought
not to be carried into Execution in his Favour, to the
Prejudice of the Widow and next of Kin ; that the
whole Real Eftate of the Lord Lechmere^ or at leaft
fo much as was purchafed or contracted for after the
Marriage, ftiould be fubje£l: to the Lady's Jointure of
800 A per Ann, and that the Whole 30,000/. with
the Rell of the Perfonal Eftate, ftiould be diftributed
according to the Statute.

Upon this Cafe Sir Jofeph jfekyll, Mafter of the
Rolls, after Deliberation, thus dehvered his Opinion.
The Qiieftion upon thefe Articles is, whether the Heir
at Law be intltled to have this 30,000/. taken out of
the Perfonal Eftate and invefted, purfuant to the Arti-
cles ; or, in other Words, whether the fame be to be taken
as Land ? And I hold that it muft, for thefe Reafons :

Firflf For that the Lord Lechmere was compellable
in Equity to lay out this 30,000/. and fettle it a-
greeably to the Articles.

Secondly^ Becaufe the Lord Lechmere living after the
Year within which Time the Purchafe was to be made
and fettled, had broken his Covenant,

Thirdly, For that, in Confequence thereof, the Tru-
ftees might have brought their Bill, and have com-
pelled his Lordfliip in his Life-time to make fuch
Purchafe and Settlement.

Fourthly, For that the Truftees not commencing
their Suit in Equity, or at Law, fliall not prejudice any
Perfon intltled to have this Settlement made. And

Vol. III. I i i Fifthly,

214 De Term. S. Michaelis, 175?.

Fifthly^ In Regard the Land defcended, and which
was under the Value of what the Lord Lechmere was
bouiid to fettle, fhall not be taken for or towards a
Satisfa£lion of the Lands articled to be fettled.

"With Refped to the firft, it is moft plain, and ac-
cording to the exprefs Words of the Articles, that the
Lord Lechmere was bound to lay out the Sum of
^0;000 /. in the Purchafe of Freehold Lands in Fee-
fimple, and to fettle them purfuant to the Articles,
and this within a Year after the Date of the Articles:
This feems (b evident, that Nothing will be attempted
to be faid again ll it.

^ idly, It feems almoft equally clear, that the Lord
Lechmere^ not having made this Purchafe and Settle-
ment within a Year, was a Breach of his Covenant.
It has indeed been objected, that fomething was to be
done previoufly by the Truftees, {vi^) that they were
to confent ; but my Opinion is, that the Truftees were
not to do the firft Aft ; The Lord Lechmere ought to
have propofed his Purchafe and Settlement, upon which
the Truftees were to have lignified their Agreement or
Difagreement thereto j whereas in the prefent Cafe it
is not pretended his Lordfliip made one fingle Step to-
wards this Settlement ', confequently he had broken his
Covenant.

^dly, The Covenant being thus broken by the Lord
Lechmere^ the Truftees might either have brought an
Aftion at Law on the Covenant, or a Bill in Equity,
to have compelled a fpecifick Performance thereof.
The Wife's Fortune had been advanced, (-y/'gL.) 4C00 /.
in Money, and 2000 /. fecured by Bond ; fo that the
Truftees had plainly this Power ; but it is probable
they thought all was fafe, and that the Lord Lechmere
I was

De Term. S. Michaelis, 1733. ZI9

Was well able (as indeed he was) to make a Purchafe ;
and that, in the mean Time, it would be more bene-
ficial to him to receive the Intereft of the Money,
than the Profits of the Land. Now, if the Triiftees
had, after the Expiration of the Year, filed their Bill
for an Execution of thefe Article?, a Court of Equity-
would, and muft, have decreed a Performance. And
taking this to be fo,

4?/;/);, The Forbearance of the Truftees in not doing A Truftee^
■what it was their Office to have done, ffiall in no Sort ,j°"^^hat"1t°
prejudice the Cefiuy que Trufls ; fince at that Rate it would was his Of-
be in the Power of Truftees, either by doing, or de- ftaii not p're^
laying to do, their Duty, to affe£l the Right of other g^^ '^^
Perfons; which can never be maintained. Wherefore r;-;//?; for
the Rule in all fuch Cafes is, that what oudit to have 'henitwouid

' o be in the

been done, fhall be taken as done, and a Rule fo Power of a

powerful it is, as to alter the very Nature of I'hings ; ^jf ^^e°

to make Money Land, and, on the contrary, to turn Right of a

■Land into Money ; thus Money articled to be laid out r^{jl ^"\

in Land,- fhall be taken as Land, and defcend to the whatever.

Heir ; and on the other Hand, Land agreed to be fold, ^^^JJ^"^^'^

fliall be conlidered as Perfonal Eftate. i Salk. i *) 4. tion, is co-
venanted to

be done, fhall, in Equity, be looked on as done : Thus, Money agreed to be laid out in
Land, {hall be taken as Land ; isf e conva-fi.

Indeed it has been obje£l:ed, that there is a Diffe-
rence betwixt Money being depofited in the Hands of
Truftees to be invefted, and where there is no fuch
Depofit, but a Man covenants (as here) to lay out fo
much Money in Land, and to fettle it.

Rejf : But as to this there is no Manner of Dif*
ference in Reafon ; for the Nature of the Thing is
changed by the Agreement, of which it is the Bufinefs
of a Court of Equity to inforce an Execution, In the

Cafe

11 6 De Term. S. Michae/is, 17 3 5.

'he°Hands"of^^^*^ of Kettkby vcrfus Atrpood, i Vern. 298, it was
the Wife's agreed by Marriage Articles, that the Wife having
Truftecs,and j rQO /. Portion, the Hufband Ihould add 500/. more

500/. in the -' . ' r- 1 •

Hufljand's to It ; and that the Whole Ihould be depofited in Tru-
renltte'd w^^^^^ Hands, until a convenient Purchafe could be found
be laid out in out foi invefting the fame in Land, which, when pur-
fett"iedo^nihe chafed, fhould be fettled on the Hufband and Wife
Hufband for for their Lives, with Remainder to their firft, iyc.
m'ainder to Son in Tail, Remainder to their Daughters in Tail, Re-
the Wife for mainder to the right Heirs of the Hufband. Before the

Life Re- . "

mainder to Making of the Purchafe the Hufband died, leaving Iffue

Son'' Re ^"^ by his laid Wife a Daughter, who died about a Month

mainder to old. The Wife adminiftred to the Hufband and Daugh-

!ers°Re?" ^^^ ^ ^"^ ^^^ Heir of the Hufband brought his Bill to

mainder in have the Monev laid out in the Purchafe of Land to be

Hufba^nd/ fettled on the Wife for Life only. Remainder to the

They have Plaintiff in Fee ; and though the then (<?) Lord Keeper

Dal^gUer, [Nortlj] refufed to make a Decree for that Purpofe,

the Huiband ^nd dilmiffed the Bill, but without Cofts, yet the Party

ter which the did not think fit to rell there, but reheard the Cauie

di^^bSore t'efore the Lord Chancellor Jejfereys (/), who decreed

the Purchafe for the Heir, holding, that the Money was bound by

theJ'thT'^ the Articles, and fhould be for the Benefit of the Heir,

Wife dies; as the Land would have gone, if purchafcd. This

ftaii^as"^^ Cafe is in Point, and the Determination often allowed

Land, go to fo be right ; wherein it is obfervable, that but Part

IheHufband. of the Moncy, {vi^^ that of the Wife was in Truflees

Hands, the Hufband not having depofited the 500 /.

which he was to advance ; and yet no Difference was

taken with Regard to the two Sums ; alfo, there was

a Failure of Iffue of the Marriage, (as here) and the

Difpute betwixt the Wife, the Adminiftratrix of the

Hufband, and the collateral Heir, who was as much a

Volunteer as the Remainder Man in the principal Cafe,

and equally out of the Confideration of the Articles ;

notwithilanding which, the Decree was as above, taking

I the

{e) I Vern, 299. (/) i Vern. 471.

De Term. S. Michaelis, 1735. Z17

not
en

the Money to be as Land, as well v/ich Regard to the
collateral Heir, as to the Iffue of the Marriage. iSoMonfey atti-
in 2 Vern. i o i , Lancy verfus Fairchild, Money by Mar- riageTo b^
riage Articles was to be laid out in Land, and fettled '^id out in
on the Hufband and Wife, and their IlTue, Remainder fettled, (hull
to the Heirs of the Wife, the Wife died in the Life- §" ^\ L^"'^>

ri n 111 ir it- pthough the

Time or the Huiband ; and decreed lor the Heir or wife be
the Wife againft her Adminiftrator ; the Money being ^"^'^jj^^^''"
faid to be bound by the Articles, agreeably to the
Refoiutlon in the above cited Cafe of Kettleby verfus
Atxvood'j though no Money appeared to have been de-
poiited, and an Execution of the Agreement was afked
by the collateral Heir at Law, who could not be within
the immediate View and Profpe£l of the Articles.
And indeed this is no more, than what even Courts Money ani-
of Law have come into ; for which Reafon, when riacre°"o be^'
Money by a Marriage Agreement is articled to be in- '^''^ «"* '"^
vefted in Land, that Money is held not to be AfTets fettled, T
for Payment of Debts, according to the Cafe of Larv- ^^^^^ ^^
rence verfus Beverley, cited in Kettleby verfus Atxvood;
where Money fecured by a Mortgage, to which an Ex-
ecutor was legally intitled, yet, being articled to be
laid out in Land, and fettled on the IlTue of the Mar-
riage, it was by Hale Chief Juftice, on a fpecial Verdift,
adjudged to be bound by the Articles.

The Cafe of Knights verfus Atkins^ 2 Vern. 20. is fttll Moncv, Part
ftronger to this Purpofe: Upon Marriage Articles i 500/. i^Hu'i-- "
was the Wife's Portion, to which the Hufband was to •'^"'i'''. and
add I 500/. the whole 3000 /. to be invefted in Land, ti,e"vife's,
and fettled on the Hufband for Life, Remainder to the ''. °" ^^''-
Wife for her Jointure, Remainder to the Heirs of their [afFout* in
two Bodies, (topping fhort there, and not expreffing jt^^""^' ^^^
where the Eftate fhould go afterwards. The Hufband Hufband fJr

Life, Re-
mainder to the Wife for Life, Remainder to the Heirs of their two Bodies, and the Ufes
go no further i the Heir of the Hufband (hall have the Whole.

Vol. III. K k k died

21 8 De Term. S. Michae/is, 1735.

died without KTue ; upon which his collateral Heir
brought his Bill to have the Money laid out in a Pur-
chafe of Land to be fettled on the Wife for Life, Re-
mainder to the Plaintiff in Fee, as Heir at Law of the
Hulband. The Obje£lion was, that it was reafonable
the Remainder in Fee fliould go to the right Heirs of
the Survivor, and confequently, that the Wife having
furvived, was intitled, or at leaft, that fhe had a good
Claim to her own 1500/. or the Land to be purchafed
therewith; but for the Heir of the Hulband it was
anfwered, that this mull be taken as if the Bill had
been brought in the Life-Time of the Hufband and
Wife, when the Court would have decreed the Re-
mainder in Fee to the Hufband. Accordingly the Lord
Jeffereys decreed the whole Money to the Heir of the
Hufband, on a Prefumption that it was fo intended.
Here then the Heir of the Hufband was allowed to go
away with the Fee, though no Money had been de-
pofited . in the Hands of Truftees, though the Heir
was out of the Confideration of the Articles, and
though there was no exprefs Limitation to the Heirs
of the Hufband ; which I take to have been a right
Decree.

Where Mo- j^ 2 Fem. 111. Symotis verfus Gutter, there is this

ney 's on „ 11 • • 1 1 i>

Marriage to Calc : It was agreed by Marriage Articles, that 5^00/. or
a Pu'.tha"fe!" ^ ^e Wifc's Portion fliould be lodged with Sir Francis Child
and fettled aud William Pain, to be placed out at Intereff, until k
mon \Jks"l'n could be iuveited in a Purchafe, with the Confent of the
a Marriage Wife and her then intended Hufband, in Houfes, or
adding the' Lauds of Inheritance, to be fettled on the Hufband and
ciaufe, that Wife for their Lives, Remainder to the Heirs of their

the Furchafc t->1' t-> ' i it- rt-r>i r

ihaiibeniadetwo BoQies, Remainder to the Heirs 01 the Body 01
Confen^Tof ^^^ ^^^^^^' Remainder to the Wife's Brother in Fee; the
the Hufband J 00 /. was depoiited in the Hands of Truftees, and be-

and Wife, it

makes no Diverfity, though no Confent was given to any Purchafe made during the Life of

tlie Hufbiijid and Wife ; for flill the Money (hall be taken as Land.

2 fore

De Term. S. Mich ae lis, 1733. 219

fore any Purchafe made, the Wife died without Iflue,
and the Huftand having afterwards received the Interell
during his Life, died ; upon which the Wife's Brother
brought his Bill for this Money, by Virtue of the Re-
mainder in Fee hmited to him, as Brother and Heir
of the Wife, and alio as having Adminiitration to her
de bonis non adminiftred by the Hufband, who furvived
the Wife. Trevor., Rawlinfon and Hutchins were at that
Time Lords Commillioners of the Great Seal, the two
form,er of whom held, that the 500/. being to be looked
on as Money, and not as Land, belonged to the Defen-
dant as Adminiftrator of the Hufband ; that it was not
in all Events to be laid out in a Purchafe, but only
by Confent of the Hufband and Wife, who, it did not
appear, had ever confented ; and if it had been inve-
fted, and a Settlement made, the Hufl^and, as Tenant
in Tail, might have barred it by a Recovery. On the
contrary, Hutchins conceived, that this 500 /. being
Money agreed to be laid out in Land, was to be taken
as Land ; that it was plain, after the Death, either of
the Hufband, or of the Wife, it was to be looked
upon as Land, and the Purchafe might have been
made during the Life of the Survivor; that by the
Articles the Survivor was intitled to the Intereft only
during his Life, and until the Purchafe made; and
having no Ifilie, he could be but Tenant in I'ail after
Poilibility of IfTue extinft ; that, to him, this Cafe
feemed to be governed by the Rule that had been taken
in the feveral Cafes of Whitxvick verfus Jermyn, or Law'
rence verfus Beverley, and Kettleby verius Attvood, and
mull not, upon the fame Circumffances, be deemed
Perfonal Eftate, which in other Cafes had been looked
on as Land, and gone as Real Eftate.

In this laft Cafe, I obferve, it was admitted, that if
there had not been the Claufe in the Articles, that
the Purchafe fhould be made with the Conlent of the

Hufband

220 De Term. S. Michaelis, 173?.

Hultand and Wife, it muft have been taken as Land :
Now fuch Claufe makes no Manner of Difference ;
for, upon a convenient Purchafe being propofed, the
Court would have taken on themfelves to judge
thereof; and, without fome reafonable Objection made,
would have ordered the Money to be laid out in it,
fo that fuch Claufe feems to have been immaterial
in the Marriage Articles, and as if omitted, and the
Opinion of Hmchins to have been well grounded.

But agalnft this there has been obje6led the Cafe of
Chichefler verfus Bickerjiaff, 2 Fern. 295. Where, upon
Sir John Chichefler s Marrying the Daughter of Sir Charles
Bickerflaff, Sir Charles articled to pay i 500 /. as Part
of his Daughter's Portion, which, together with i 500/.
more to be advanced by Sir John Chicefler, was, within
three Years after the Marriage, to be invefted in Land,
and fettled on Sir John Chichefler for Life, Remainder
to his intended Wife for Life, Remainder to their firft,
isfc. Son in Tali Male, Remainder to the Daughters in
Tail, Remainder to the right Heirs of Sir Jolm the
Hufband. Within a Year after the Marriage Sir John
and his Lady both fell ill of the Small-Pox, the Wife
died firft, and three Days after Sir John died, without
Iffue, having made his Will, and appointed his Sifter,
Frances Chichefler, his Refiduary Legatee.

Sir Arthur Chichefler, the Brother and Heir, brought
his Bill, claiming the Money thus agreed to be laid out
in Land, the Remainder in Fee whereof, in Cafe of
Failure of Hfue of the Marriage, was to go to the Heir
of the deceafed Hufband. Sed per Curiam; this Money
which would have been Land, as to the IfTue of the
Marriage, yet, now the Hufband and the Wife are
dead without Illue, is turned into Money again, and
under the Power of the Hufband to difpofe of as he
pleafed. It Ihould have gone to his Adminlftrator,

2 had

De Term. S. Michaelisy 1 75 3. 221

had there been no Will, a fortiori will ir, in the pre-
fent Cafe, go to his Reiiduary Legatee.

Now, with Refpefl: to this Cafe, it is remarkable,
that the Wife died within three Years after the Mar-
riage, during which Period the Purchafe was to be
made ; fo that the Time was not come within which
the Money was to be laid out, and till then it conti-
nued Money; or, poffibly, the Court had fome Evi-
dence to induce them to believ^e Sir John Chichefler
looked on the Money as Perfonal Eftate : And if this
does not dittinguilh it from the other Cafes, I doubt,
in Oppodtion to fo many Decrees, the Refolution here
given would hardly be maintainable.

Afterwards came the Cafe of Lingert verfus Sorpray^ Money arti-
(g) in 171 ^, reported in the Book, called The ^^nW^; ^LtinS-
ment of Cafes in Equity, 175, where 700/. of the Huf- and fettled oa
band's Money, and 700/. of the Wife's Money, was, wife^andTf-
on a Marriage, articled to be laid out in Land, and fet- f'je,Reniain-
tled on the Hufband for Life, Rf mainder to the Wife theHufband,
for Life, Remainder to the firft, isrc. Son in Tail Male, ^''^^'^^r ''^-

• 1 IT • rr -I 'thcDevifeot

Remamder to the Daughters jn Tail, Remainder to the aReai Eftate,
Heirs of the Hufband. The Hufband devifed all his I'r^^ it

. . -• ivioiicy was

Perfonal Eftate to his Wife, and all his Real Eftate to "ever laid
the Plaintiff, and died without Iffue. Whereupon it
was decreed, that the Money articled to be laid out
in Land, was as Land, and could not pafs by the De-
vife of the [C] Perfonal, but belonged to the Plaintiff,
Vol. III. L I 1 as

(g) Sec alfo Precedents in Chan. 400, and Vol. i. 172. In which laft
Book the Cafe is more fully reported, and agreeably to the Reglfter's
Book.

[C] h is obfervable, that the Hufband might have devifed this
1400/. (IbbjecSt to his Wife's Eftate for Life) either as Real or Perfonal
Eftate, according as he llioiild have fignified his Intention. Thus, if he
had in his Will defcribed it as fo niuch Money agreed to be laid out in

Land,

out.

222 De Term. S. Michae/is, 175^.

as Devifee of the Real Eftate. And this Decree, firft
made by the Lord Harcourt in 1 7 1 1 , was affirmed, in
1715, by the Lord Coxfper.

Still later than this Cafe, was that of Edwards verfus
The Countefs of Warwick^ decreed in Chancery, and af-
firmed in the Houfe of Lords, where Money was ar-
ticled to be laid out in Land, and fettled on the Huf-
band and Wife, and the Iffue of the Marriage, Remain-
der to the Heirs of the Hufband. There was Iffije,
but tuch liTue died without Iffue before the Money was
laid out ; and decreed, that the Money was to be
looked upon as Land, and fhould go to the Heir.
Every Cefluy Neichcr is the Obje6lion, that the Plaintiff is a Volun-
whe!hef a ^^^''' °^ ^"Y ^^eight ; for this is the Cafe of a Truft,
Volunteer or and cvery Cefluy que TruJ}, whether a Volunteer or not,
tied to the'" or be the Limitation under which he claims, with.
Benefit of or without, 3 Confidcratiou, is intitled to the Aid of
and no Rea- ^ Court of Equity, in Order to avail himlelf of the
fon dm the Benefit of the Truft. There can be no Reafon, that
fliouidkeep the Truftee fliould retain to his own Ufe the Truft
the Eftate, Money or Eftate, with Refpeft to which he is barely
an Inftrument, in Breach of the Confidence repofed in
Anyvoiun- him. Any voluntary Bond is good againft an Execu-
good^a°g"tnft for or Adminiftrator, unlefs fome Creditor be thereby
the Execu- deprived of his Debt. Indeed, if the Bond be merely
to'be^poft- voluntary, a Real Debt, though by limple Contra£t
poned to a Q^jy^ [\-^.^\\ [-j^ve thc Preference ; but if there be no
trTaDcbt" Debt at all, then a Bond, however voluntary, muft be
paid by an Executor. Befides, in fome Cales, this
I Court

Land, this would have been fufRcient to have made it pafs as Peifonal
Eftate, and by a Will not attefted by three Witncfles ; but without I'uch
a particular Interpofuion of the Teftator, manifefting his Intention, it
remained as Land, and confcquently belonged to the Devifee, or Repre-
fentative of the Real, not of the Perfonal Eftate. Determined in the
Cafes of Crofs verfus Addenbroke, Hillary, 1719, Fulbam verfus Jones^
Mich. 1720, both by the Lord Parker. But more particularly in the
Cafe of Edwards verfus The Countefs of H^avjvuk, Vol. 2. 171.

De Term. S. Michaelis, 173?. 213

Court may be under a Neceffity of determining Que-
ftions between Volunteers, I mean, between Pertons
that are really fuch, with Regard to thofe from whom
they claim ; as where the Heir comes to have his Real
Eltate dilincumbred, by applying the Perfonal Eftate in
Exoneration thereof, there the Objeftlon of being a
Volunteer is ftrong againft the Plaintiff, and yet the
Court of Equity muft determine the Point.

In 2 Vern. 222, Bolt verfus Holt, the Father of 7. S. ^-'s Father

.,,.,-' ,. »ri articles with

articled with a Carpenter to pay nim 1000/. lor the a Carpenter
.Building of an Houfe upon his Land, and the Car- *° P^y ^'"^

" . . t . ^ 1000/. to

penter articled with the Father to build the Houfe. build an
The Father died Inteftate before the Houfe was begun Eft;[e,The''
to be built, and the Land on which the Houfe was to Carpenter
be built, defcended to the Son and Heir. Held, that ^"Jjj"- "'^ ^^
the Son might compel the Widow and Admlniftratrlx dies; the
of the Hufband, who owned the Ground on which, (haii comp'ei
ilfc. to lay out the 1 000 /. in Building the Houfe, al- the Building
though the Son, who fought, and was allowed to take and the Exc'
the Benefit of this Covenant, did not intltle himfelf J"^'°[ ^° P^y
thereto by any Manner of Confideration.

So in Vernon verfus Vernon (/;), decreed firft by the Articles on
Lord King, and affirmed in the Houfe of Lords. A. ^^hereb°^*
covenanted on his Marriage to lay out 7000/. in Land, Money is
and fettle it on himfelf for Life, Remainder to hlsfjf^'^^^iJ"'
Wife for Life, Remainder to the firil:, ^c. Son of the Land, and
Marriage in Tall Male, Remainder to the Heirs Male of Default 'of
the Body of A. Remainder to ^.'s Brother for Life, Re- i^Tue Male of
malnder to his firft, ilfc. Son. Now, though this Re- Ha^ge, on
mainder feemed merely voluntary, and out of all thej''^^'|[-
Confiderations of the Marriage Settlement, and though iher, (haii, if
A. (as was there well urged) had the Land been fettled ^.''^ Hufband

^ o / dies without

Iflue Male, and leaving only Daughters, be performed in Favour of the Brother, though they
were voluntary, and though the Hufb.ind might have barred fuch Remainder.

(h) Vol. 2. (594).

224 J^^ Term. S. Michaelis, 17 3 5.

by him in his Life-Time, might have barred the Bro-
ther by a Common Recovery, yet, on Ah leaving only
Daughters, Equity compelled a fpecifick Performance
of the Covenant.

There remains then only the laft Point, ^^'hich is,
whether the Lands which defcended from the Lord
Lechmere to his Heir at Law, fhall be taken for or to-
wards a Satisfaction of the Covenant, as to this Re-
mainder limited to his own right Heirs.

jf. covenants And here it is obje£led, that the Lord Lechmere co-
^°dhi^tfrs tenants for himfelf and his Heirs, to lay out 26,000/.
that he will' in the Purchafe of Lands, and to fettle the fame on
df and himlelf and Wife, and firft, ^c. Son, and for Portions
fettle the for Daughters, Remainder to his own rioht Heirs. So
feiT for Li'^i fh^^ i" ^his Cafe the Heir is Debtor, as bound in the
Reniainder Coveuaut, and yet claims as a Creditor under the Co-
forLife,Re- venant, which is inconfiftent, {vi^) for the fame Per-
""^ fi'^r V- ^*^" ^° ^^ ^°^^ Debtor and Creditor ; and as far as the
Son, Re- Heir has Real Affets, the Aflets are at Home already,
mainderto and cannot be fued for.

himleli in

Fee; Equity will compel the Executor to lay out the Money, though the Heir is both

Debtor and Creditor.

Rejf : So, if a Man articles for a Purchafe, and
binds himfelf, his Heirs, Executors, is'c. he may as
well be called, in that Cale, Covenantor and Covenan-
tee, as in the prefent ; and yet, in Refpe£l of the dif-
ferent Rights that are in him, the Heir may compel the
Executor to compleat the Purchafe for him. Though,
to fpeak properly, the Heir at Law cannot be conii-
dered as a Creditor any more than as a Purchafor un-
der his Anceftor, but as Heir, he is the Reprefentative
of his Ancertor, fo as to be inritled to all the Real
Eftate, which the Anceftor died feifed of j and, on the
other Hand, liable to anfwer all the Burdens to which
fuch Real Eftate is fubjefl.

2 Then

De Term. S. Michaelis, 1735. 229

Then, with Regard to the Lands left to defcend, ifl^
It Is plain the Covenant does not relate to the Lands
which were his Lordlhip's at the Time of entring into
the Articles, the Words hemg future^ ("^^XO That he vpoidd
purchafe Lands, idly^ The Purchafe of the Leafehold
Eftates for Lives, or Reverfions expeflant on Eftates for
Lives, are nothing to the Purpofe, fince the Lands to
be bought are exprefly mentioned to be Lands of Inhe-
ritance and in Fee-fimple, whereas thefe could not an-
fwer the Intent of the Articles. Indeed, what ought to It is the in-
govern in all thefe Cafes of implied Satisfa6lion, is the th" Partv
Intention of the Parties. Now, in the principal Cafe ^hich makes
the Intention of the Party does not plainly appear, that ed tquiva-
his Eitate which he permitted to defcend, and which '/"".^ ^=^^''-

1-1 » I rii-11 laction, or

did not amount to the Value or what he articled to not.
purchafe, ihould be for or towards a Satisfaflion, con-
lequently this would be to difinherit an Heir by an
Implication not neceffary, contrary to the known
Maxim of Law.

As to the Cafe of Wilcox verfus Wilcox, 2 Vern. 558. ^ ^"^'l"'^

' ■' ■' permitting

where a Man upon his Marriage covenanted to pur- Lands to de-
chafe Lands of 2C0 /. per Ann. and to fettle them on |j^"J'"f^^g'
himfelf for Life, Remainder to his Wife for Life, for fame Value
her Jointure, Remainder to his firft, ^c. Son in Tail covenanted*
Male, Remainder to his Daughters in Tail ; and the '» ^e fettled
Father purchafed Lands of 200/. per Ann. after which this is a Sa-
he made no Settlement, but permitted them to defcend. ^'^^^"^
Whereupon this was decreed to be a SatisfaQion of the
Covenant : Here the Father made a Purchafe fully fuf-
ficient to anfwer the 200/. per Ann. The Book takes
Notice, that the Lands were worth 200/. per Ann.
which imports, that they were jult of that Value ; and
this plainly ftiews, that the Lands were bought with
an Intention to fatisfy the Covenant, and the eldeft
Son could not complain, or objecl, when he had his
Vol. IIL M m m 200/.

ion.

iz6 De Term. S. Michaelis, 1735.

200 /. per Ann. from his Father ; that it was another
Eftate than what was covenanted to be fettled upon
him, (w^.) that it was a Fee-fimple inftead of an In-
tail ; for which Caufe this feems to have been a reafon-
able Decree. And, by the way, if the eldeft Son had
aliened the Fee, and died without IfTue, I do not think
the fecond Son could have recovered under thefe Ar-
ticles ; for if it had been an Rftate-tail, he might have
barred it by a Recovery [D] : Whereas in the prefenc
Cafe the Lord Lechmere has not permitted Lands to
defcend to his Heir to the Value of what he articled to
j^J^^"^''°fpurchafe, and Lands of lefs Value fhall never be look-
cannot be cd upon as au Equivalent. The Lands to be purchafed
*?'^^"'"^V according to the Covenant are to be to the Amount of

tisfaction of " r 1 I r 1

what is of 30,000/. and as the Lands purchaled before the Mar-
Yz\^^^^ riage, together with the Leafehold and Reveriions pur-
chafed afterwards, are not to be taken as Part of the
Lands to be bought and fettled : So the Reif of the
Purchafes which he made are of very inconfiderable
Value, and it cannot be prefumed his Lordfhip intend-
ed they ftiould be fo conifrued.

Land, tho' j^ fj^g Q^fg Qf Qoodfellom verfus Burchet, 2 Fern.

of much J , r 1 • i

greater Va- 298. a Man on the Marriage or his Daughter, gave a

Daulter" "^ ^°"^ ^^ ^^^ Hufbaud for Part of the Portion, after

no Satisfac- whicli by his Will he gave her Land of much greater

Portion. ^ Value, ar.d yet this was held to be no Satibfatlion, [E-]

although there were not Alfets to pay Debts, which is

a ftrong Cafe. And there it is laid down as a Rule,

that where a Legacy has been decreed to go in Satif-

I fadlion

[D] But ^i^re, if the eldeft Son had died, (as he might have done)
before the then next Term, fo that he could not have fiiffered a Reco-
very, whether then the next Son ought to be barred of his Chance.

[E] However this might be determined on another Principle, (viz.)
that Money and Land being of a quite different Narure, the one (hall
never be taken as a Satisfaftion for the other. See many Cafes to this
Purpofe, but particularly the Cafe of Chaplin verfus Chaplin, determined
Pafch^j I734> by the Lord Talbot y poft.

De Term. S. Michaelis, 1735. 22.7

faftlon of a Debt, It muft have been grounded upon
fome Evidence, or at leaft upon a ftrong Prefumptlon
that the Teftator did fo intend it ; but in the prefent
Cafe there is no fuch Evidence, nor any Room for
fuch a Prefumption.

In the Cafe of Cuthbert verjus Peacock, i Salk. 155.
it was infilled on as a Rule, that where a Debtor gives
a Legacy greater than his Debt, it fliall be intended a
Satisfaction, becaufe the Teftator muft be prefumed to
be juft before he is bountiful. But the Lord Cowper
faid, it might as well be prefumed that a Debtor,
where there are Aftets, intends to be both juft and
bountiful. So in Cranmers Cafe, Salk. 508. it was de-
creed by the Lord Hanourt, that a Legacy, though it
exceeded the Debt, could not be intended as a Satif-
faclion thereof; and indeed it may be prefumed, that
if the Teftator intended to pay or fatisfy a Debt, he
would certainly have taken Notice of it.

So that, upon the whole Matter; I decree that this
30,000 /. thus agreed to be laid out in Land, Ihall be
taken as Land ; that the Land permitted to defcend to
the Heir ftiall not be deemed to be in, or towards.
Satisfaction of the Debt ; confequently that the Admi-
niftratrix muft inveft this 30,000 /. in a Purchafe, and
fettle it purfuant to the Articles. But though thefe Though bv
have provided that 5 /. per Cent, mall be paid until a LcL il',
Purchafe made ; yet it appearing to me that the Money dWcaed to
has been placed in the Government Funds, which haveyet^it^^p.'
yielded but 4 /. per Cent. I think I may with Reafon peaf'ng that
and Equity moderate the Intereft, and reduce it to 4 /. hid he^n^
per Cent, in Regard the Adminiftratrix has made no pI^"'^ '" ^''^

* P . " Cjovern-

jnore Ot it. ment Funds,

which yield-
ed but 4/. the Court reduced the Intereft to 4/. per Cent.

Note;

2z8 De Term. S. Michaelis, 1733.

30,000/. is j^Tofe . On an Appeal to the Lord Talbot, Pafch^e,

covenanted ' , t-> i i • j r-\ r

to be laid out I 7 3 5, alter long Debate, his Honours Decree was lo
k"w *^ need ^^"^ affirmed, as that the 30,000/. articled to be laid
not be laid out iH Land, vvas by his Lordlhip held to be as Land ;
gether upon "^^^^ moreover agreed, that no Difference had ever been
one Pur- niade, between the Cafes where the Money was depo-
kid'out"at' fif^^ iri the Hands of a third Perfon to be laid out,
fe\'erai gnd whcre it was relfing in the Hands of the Cove-
fuificient ; nautor : But with Refpe£l to the Freehold Lands pur-
and if the chafed in Fee-fimple, in Polfeffion, after the Covenant,
dies, having though with but Part of the 30,000/. and left to de-
purchafed f^end, thefc were by the Lord Chancellor ordered to

lome Lands ' • r n- r

which are go as a Satisfaction pro tanto ; for that it could not be
fcen<j°tWs ijifended the Lord Lecbmere was obliged to lay out all
will be a Sa- the Money together ; nay, it might be doubtful, whe-
ther one intire Purchafe could be met with for juft that
Sum ; and though his Lordfhip had covenanted to lay
out the 30,000 /. in Land, yet he had not covenanted
to lay it out in one Purchafe, or at one Time •* But if
it was invefted at fev^eral Times, it would fatisfy the
Covenant, as much as if laid out all together.

tisfa^Slion
pro tanto.

D E

229

D E

Term, S. Hillarii,

1733

Chaplin verfus Chaplin. <^|=53-

Lord Chan'

IcellorTsWiot.
N this long Caufe, among many others, were the
following Qiieftlons : The Lady Hanby, the Grand- Cejiuy que
mother of Sorter Chaplin, being felfed in Fee, conveyed '^''ifi "°' *°
divers Lands to the Ufe and Intent that certain Tru-
ftees in the Deed named, fhould receive and enjoy a
Rent-Charge of 30/. per Annum to them and their
Heirs, with Power to diftrain for the faid Rent, and to
enter and hold the Land on Non-payment for forty
Days ; and then the faid Rent was to be to the Ufe
of Porter Chaplin in Tail Male, Remainder to the Ufe of
the fame Perfons that had the Land in Fee. Porter
Chaplin, to whom this Eltate-tail was limited in the
Rent, died, leaving llTue Sir John Chaplin, who inter-
married with the Plaintiff the Lady Chaplin, and after-
wards died without Tfllie Male. Whereupon one
Qiiellion was, whether the Plaintiff, the Lady Chaplin^
was dowable of this Rent of which her Huihand died
feifed in Tail Male ?

Vol. III. N n n And

230 De Term. S. Hi//arii, 1733.

If a Rent ^^ j^^d the Court held, that fuppofing this were a
granted in RcHt Created de novo, the Remainder in Fee whereof
Tall, with- ^^,23 extinsuifiied by a Limitation of it to thofe that

out any Re- , , , - , p •', _, , . | • i i i

maindcr o- had the Land, Inch Rent being determined by the
ver, and Te- Qg^f^ of the Hufband Tenant in Tail, and having no

nantinlail ' i j r

takes Wife, longer any Exiitence, the Wife cannot be endowed or
withourif- ^^^^ which is not in Being ; but that it is otherwife
fuc ; the where Tenant in Tail of Land marries and dies with-
notbe^en- out IlTue, whereby that Eftate-tail is determined : For
dowed, be- the Wife in that Cafe fhall be endowed notwithftand-
Thingoutofing, becaufe the Land is in Being, though the Eltate-
which the j-gji therein is determined, and the Dower is in fome

Dower istOp^ . r i T-<n •! o T

arife, is not Reipects a Coutinuance oi the Eltate-tail. So it a
in Being. ^^^^ jj^ £jj-^ [^g granted to A. in Tall, Remainder to
Secus if the ^^ jj^ p^g ^^^ j^ marrles and dies without liTiie, the

Rent were t n n i i i t i i

granted in Wife Ihall be cndowcd ; or it a Rent de novo be granted
Tail Re- j. j^ '^^ rp ji j^gj^ajj^f^gj- fo B. in Fee, ("which has

mainder ^ _ _ ' . ' ^

over. been [AJ adjudged a good Remainder) and A. marries

and dies without liTue ; his Wife Ihall be endowed.

Tenant in Morcovcr, the Court conceived, that if fuch a Rent
Reit°gra^nt- ^^ ^ovo be granted in Tail without any Remainder over,
ed de novo ai^d the Tenant in Tall fufFers a Recovery thereof ; this
Remabder"^ Rccovcry, though it wlll tum the Eiiate-tail into a
over, fuffers pgg ygj- the fame will pafs but a determinable Fee,

Recovers :...■' „ . . t. . - . ...

a Recover)' ;

this will not which muft end on the Death of the Tenant in Tail
fute ^but on- without IfTuc, for the Grantor never agreed to charge
ly a deter- the Land any further with the Rent, and it would be
minabie,Fee. ^ ^yroug to the Tcrtenant to burthen his Eftate with

the Rent for any longer Time. See i Lutrp. 122^.

But it afterwards was diiclofed to the Court, that the
1 legal

[A] For, though the Objedion is, that there can be no Remainder
of that whereof there is no Reverfion ; yet the Intent of the Party
gives the Rent de vovo firfl: a Being for the Whole, and then the lefler
Eftates are carved out of it. By Holi Ch-. Juft. Salk. c^-jj. JVceks yitx'L\i%
Peacb.

De Term. S. Hillarii, 1 73 5. 231

■I I ' — a^^fcii^i..^— i

legal Eftate of the Rent in Fee was in Truftees, in
Truft for Porter Chaplin in Tail Male ; and that on his
dying, the Truft of this Eftate-tail defcended to his
only Son Sir John Chaplin in Tail, the Hulband of the
Plaintiff the Lady Chaplin, who {inter af) brought her
Bill for her Dower of this Rent; and then the Cafe
was no more, than whether the Wife of a Cefluy que
Truft in Tail (liould be endowed ?

"Whereupon for the Plaintiff were cited, Firfl, The
Cafe of Srveetapple verfiis Bindon, 2 Vern. 536. wher6
a Woman bequeathed Money to be laid out in Land, to
be fettled to the Ufe of her Daughter and her Children,
and if flie died without Iffue, to go over. The Daugh-
ter married the Plaintiff, by whom (he had Iffue, but
fhe and the Iffue being both dead, and the Money not
laid out : On a Bill brought by the Hufband, the Lord
Coxvper decreed the Money to be confidered as Land,
and the Plaintiff to be Tenant by the Curtefy.

Secondly, Otway verfus Hudfon, 2 Fern. 583. where
Tenant in Tail of a Truft of a Copyhold Eftate, ha-
ving defired the Lord to admit him, and being re-
fufed, and having brought a Bill againft the Truftees
to have a Surrender made him of the legal Eftate, died.
In that Cafe, though the Huft)and was never feifed of
the legal Eftate of the Copyhold, yet the Widow was
decreed her Free- Bench.

Thirdly, The Cafe of Fletcher verfus Rohinjon, as
cited in Precedents in Chancery, 250. where J. S. fall-
ing into fome Trouble for having counterfeited a
Warrant, conveyed his Land to his younger Son, in
Truft only to fecure it againft a Forfeiture ; and after-
wards being freed from I'rouble, conveyed the Premiffes
to his eldeft Son, and died. The eldeft Son died,
leaving a Widow and no Iffue, whereupon his Widow

being

252. De Term. S. Hillarii, 1755.

being nonfuited at Law, brought her Bill in Equity,
and had a Decree for her Thirds.

Fourthly, That nothing was more known, than that
a Dovvrels fhall have the Benefit of a Truft-Term at-
tendant on the Inheritance againft an Heir, as appeared
from the Cafes of Tfje Lady Dudley verfus The Lord
Dudley, Precedents in Chancery, 241. Higford verfus Big'
ford, Pafch^e, 1 7 1 1 . Abridgment of Cafes in Equity, 2 i 9,
and more particularly from that of (a) Wrey verfus
Williams.

Laftly, It was faid to have been agreed and fettled,
that a Man fliould be Tenant by the Curtefy of a
Truft ; and it would not be pretended that there were
leis ftrong Reafons to be urged in Favour of a Dowrefs.

But after much Debate and Confideration, the Lord
Chancellor was of Opinion againfl: the Plaintiff in this
Point ; obferving, Firfl, As to the Cafe of Sweet apple
verfus Bindon, that it might be right to allow an Huf-
band to be Tenant by the Curtefy of Money to be laid
out in Land, lince Money agreed to be laid out in
Land, is as Land in Equity ; where every Thing di-
refted by a Will, or agreed by Articles to be done, is
looked upon as done. [B]

Secondly, That in the Cafe of Otrvay verfus Hudfon,
the Decree was not made upon a general Rule, that

every

(a) Vol. I. 137.

[B] This will ferve to warrant the Refolution of the Mafter of the
Rolls in the Cafe of Banks verfus Sutton, \o\. i. 632. For however that
learned Argument may be confidcred, as tending to prove in general,
that a Woman ought to be endowed of a Truft -, yet in that particular
Cafe, the legal Eftate was by the Will of the Donor diredled to be con-
veyed to the Cejliiy que Truft at his Age of twenty-one, and he living to
that Age, according to the Principle above mentioned, his Widow was
well imitJed to Dower.

De Term. S. Hill ar it, 1755. 23 s

every Widow of a Cefluy que Truft has a Right to
Dower ; but upon the great and obftinate Delay ol:
the Truftee, who refufed to convey, and ilood out a
Bill in this Court requiring him fo to do.

3^/y, That the Cafe cited from Precedents in Chancery ^
250, feemed a ttrange Cafe, and a moft extraordinary
Truft ; for if the Father, the Cefluy que Truft, Ihould
have come for a Performance of that Truft, he could
never have recovered j but the Son ftiould have held
the Land difcharged, it being a fraudulent Truft, made
to prote£l the Eftate againft a Forfeiture. This, pro-
bably, was a ftiort Note of the Cafe for the private
Ufe of fome Gentlemanj and can be of Service to no
other.

4thly, That the Cafe of a Trufi Term fet tip in
Oppofition to Dower, was nothing like the prefent;
for there the Judgment is, that the Plaintiff^ in Dower
fhall recover, but that cejfet Execmio during the Term ;
and if the Trufts of fuch Term are fatisfied, and at
an End, the Term ought not to fublift in Equity to
flop a favourite Right at Law, as Dower is ; whereas
in the Cafe of a Truft, there is no Judgment at Law,
that the "Wife fhall recover her Dower ; for the Huf-
band had no legal Eftate, nor confequently any Thing
of which the Wife is dowable. And in the Cafe of
a Purchafer, nay, even with Notice, the Court would
not relieve a Dowrefs againft a Truft Term that flood
in her Way. (b)

His Lordfhip took Notice, that by the Preamble of
the Statute of Ufes (c), it is recited, that by Means
of thefe Ufes the W^ife was defeated of her Dower j

Vol. III. O o o by

{b) Abridgment of Cafes in Equity, 219. Precedents in Chan. 6^;
Cafes in Pari. Guj. {c) 27 H. 8. cap. 10.

234 J^^ Term. S. Hillarii, 1733.

by which it appears, that the Wife of Cejliiy que Vfe
was not dowable at Common Law ; and if fo, then,
as at Common Law an Ufe was the fame as a Truft
is now, it follows, that the Wife can no more be en-
dowed of a Truft now, than at Common Law, and
before the Statute, (he could be endowed of an Ufe;
fo that here was the Opinion of the whole Parliament
in the Point ; that it had been the common Praftice
of Conveyancers, agreeably hereto, to place the legal
Eftate in Truftees on Purpofe to prevent Dower ;
wherefore it would be of the moft dangerous Confe-
quence to Titles, and throw Things into Con fufion, con-
trary to former Opinions, and the x\dvice of fo many
eminent and learned Men, to let in the Claim of
Dower upon Truft Eftates ; that he took it to be fet-
Hufband tied, that the Hufband fliould be Tenant by the [C]
JTam: by the Curtcfy of 3 Truft, though the Wife could not have
Curtefy of a Dower thereof J for which Diverfity, as he could fee
the Wife no Reafou, fo neither fhould he have made it ; but
rannot have j^j^^^ jj- j^^^^ prevailed, he would not alter it ; that there
thereof. did not appear to be fo much as one fingle Cafe,
where, abftra£ling from all other Circumftances, ic
had been determined there ftiould be Dower of a Truft.
For which Reafon, his Lordlhip difmifted the Bill as
to fuch Part of it as claimed Dower of the Truft of
this Rent. [D]

Tenant in Another Point in this Caufe was, that Porter Chaplin
Lanifs mcrt- made a Mortgage for Years, and then intailed the
gaged not £ftate mortgaged on himfelf, and the Heirs Male of

bound to . '^ ^ . . ,

keep down his Body, Remainder to his Brother Thomas Chaplin, in

thelntereft, j jj

as Tenant ... «»*

[C] So determined by his Lordfliip in the Cafe of Cajeburn verfus
Englijh^ about this Time, on an Appeal from the Rolls.

[D] Afterwards, in the Cafe ot Shepherd verfus Shepherd, heard in
March, ly^S'^^ before the Lord Talbo!, the fame Point coming in
Queftion, the Attorney General and Mr. Fazakerly, who were of Coun-
fel with the Widow, apprehended it to have been fo clearly fettled by
the above Refolution, that they both declined fpeaking to ic.

De Term. S. Hi I /aril, 1733. 239

Tail Male, and died, leaving IflTue one Infant Son, who
fiiffered the Intereft to incur on the Mortgage for feve-
ral Years, and died juft before he came of Age, leaving
a Perfonal Eftate. Whereupon it was obje£led, that
the Executors of the Infant Son, ijeeing their Teftator
took the Rents and Profits of this Eftate, ought to
keep down the Intereft, the rather, for that he never
had it in his Power to bar the Remainder by a Re-
covery.

Lord Chancellor : There is no Precedent of a Tenant
in Tail being obHged to keep down the Intereft on a
Mortgage : A Tenant for Life is, without Doubt, com-
pellable to do it ; but as a Tenant in Tail has an
Eftate, which may laft for ever, and the Remainder
over is not Aflets, nor regarded in Law; and as fuch
Tenant in Tail has a Power over the Eftate, to com-
mit any Wafte or Spoil thereon, a Court of Equity
has never injoined him to keep down the Intereft.
Wherefore his Lordftiip refufed to make any Order
upon the Executors of the Tenant in Tail, to pay any
Arrears of Intereft, though it appeared there was near
twenty Years Intereft due, and though, in this Cafe,
the Tenant in Tail died during his Infancy, and con-
fequently before it was in his Power to have barred the
Remainder by a Recovery.

IVrotteJley verfus Bendijlo, cafe54.

Lord Chan-
cdlorTAhot.

On Exceptions to the Mapers Report.

OlR Hugh IVrottcfey, by his Marriage Settlement, fe-
^ cured to his Daughters that he Ihould have by his
Lady, in Cafe of no Son, 8000 /. amongft them, pay-
able at their Ages of Twenty-one, or Days of Mar-
riage,

236 De Term. S. Hillarii, 1733.

rlage, ^vhich fliould firit happen ; provided, if any of
his Daughters fhould, after his Death, marry under her
Age of Twenty-one, and without the Content of her
Mother, that then fuch Daughter fhould forfeit her
Portion, which fhould go over to the other Daugh-
ters. I'he Father died, leaving no Son, and four
Daughters.

The Defendant Bendijlj married one of the Daugh-
ters, and (as was pretended) without the Confent of
the Mother ; whereupon the other Daughters brought
their Bill againft the Defendant, the married Daugh-
ter, and her Hufband, and thereby among other Things
they alked the married Daughter, whether fhe married
with her Mother's Confent ?

The Defendants did not demur to that Part of the
Bill, but fubmitted to Anfwer ; and the Hufband an-
fwered even to fome Circumflances of the Marriage,
as that he took it he was incouraged by the Mother
in his AddrefTes to the Daughter, and that the Mother
knew of it ; but the Daughter, his Wife, -did not an-
fwer to the Point, whether fhe did not marry without
her Mother's Confent : Upon which. Exceptions being
taken to her Anfwer, the fame was reported infuffi-
cient ; and now Exceptions were taken to the Mailer's
Report; which coming on to be argued.

It was objefted, that the Wife was not bound to an-
fwer ; for it fhe did, yet her Anfwer could not be
read againfl the Hufband, nor could fhe be a Witnefs
againft him ; wherefore it was a vain Thing to inliit
upon her Anfwering, when fuch Anfwer could not be
made Ufe of, after it fhould be put in, being no more
to be regarded, than the Anfwer of an Infant. Belides,
the Wife is fuppofed to be fiib PoteJ}ate Viri, and not to
anfwer freely.

2 To

■IMwari^MMMiai^kHHriMi

De Term. S. Hillarii, 1753. ^37

To which it was replied, that the fame Argument
might be made Ufe of againft a Feme Covert's Anfwer*
ing any Bill, when made a Co-Defendant with her Huf*
band, which is contrary to all Rules of Pra£lice; and
therefore this Objeftion ought not to prevail. More-
over, the Wife might furvive her Hufband, in which
Cafe her Anfwer might be read againft herfelf ; and
that this Cafe differed from that of an Infant's An-
fwering ; where, it is true, the Anfwer cannot be read An infant's

. n r 1 T /» /■ y • i t r • Anfwer can-

againit iuch Intant, (and yet it has been iometimes not be given
ordered, that an Infant ftiould anfwer, notwithftanding '" '^'''^^^■^^
his Infancy ;) but the true Reafon, why the Infant's becaufe it il
Anfwer is not to be read againft him, is, becaufe in "°\/^^ ^"'
Reality it is [Ej not the Anfwer of the Infant, but offwer,butthe
the Guardian, who is fworn, and not the Infant j and ^d^tJe"'*
the Infant may know Nothing of the Contents of the Guardian is
Anfwer put in for him by his Guardian, or may beno^^JJ^^n.
of thofe tender Years, as not to be able to judge fant-
pf it.

[E] An Infant's Anfwer by his Guardian is not Evidence againft
him, becaufe the Infant is not fworn, and it is only for making proper
Parties. Cartbew, 79. And where an Infant is Defendant, the Service
of the Subpejna to hear Judgment muft be on the Guardian, and not
on the Infant. See Vol. 2. (643.) Taylor verfus Atwood. But where a
Defendant puts in an Anfwer to a Bill brought by an Infant, who does
not reply to it, in fuch Cafe, it fecms, the Anfwer muft be taken to be
true, in Regard the Defendant, for want of a Replication, is deprived
of an Opportunity of examining WitneflTes to prove his Anfwer: And
he ought not to fuffer for fuch Omiffion in the Plaintiff. So ruled at
the Rolls, with fome Warmth, by Sir Jofeph Jekyll, in the Cafe of
Thurjion and Dechair^ an Infant, verfus Nut ton & Ux*, Trinity, 1733.
In which the Reporter was of Counfel with the Plaintiff, and much
oppofed the Reading of the Anfwer \ for that the Plaintiff being an In-
fant, could admit Nothing, and it might be very mifchievous, if by
Reafon of the Negleft of the Plaintiff the Infant's Guardian, or Pro-
chein Amy, in not putting in a Replication to the Anfwer, fuch Anfwer
ftiould be read, and admitted to be true, though never fo detrimental to
the Infant's Inheritance. Idco quare.

Vol. III. P p p lord

238 De Term. S. Hil/arii, 1735.

Baron and Lord Chancellor: I do not now give any Opinion, whe-
Je^lnS^'o ^'^^^ ^^^ Anfwer may be read againft the Wife, when
a Bill; the difcovert, or not; but as in all Times heretofore the
anfwer7tho' ^^^^^i ^s wcll as the Hufband, has been compelled to
the Anfwer anfwer, I would not take upon myfelf to overthrow
read againft vvhat has been the conftant Practice.

the Huf-
band, but may (poflibly) be read againft her, if (he furvives.

Then it was obje£l:ed, that this Anfwer of the Wife
tended to make her liable to a Forfeiture, which in
(d) no Cafe would be affifted in a Court of Equity ;
that had the Defendants, inftead of Anfwering, put in
a Demurrer, it muft have been allowed ; and it would
be very hard to make this Miftake fo extremely penal
to them.

Cafe'the"* ior^ Chancellor : I fliould have made no Queftion, if
Feme not the Defendants had demurred, of allowing the Demur-
fwertheBiii ^^^ 5 but they having fubmitted to Anfwer, and the
fubjeaing Hufband having anfwered as to his Marriage, that the
felture^ tho' Wife's Mother knew of the Courtlhip, and having fully
the Huftjand aufwered the Bill, and the prefent Exception being to
ted to an- ^^6 Wife's Aufwcr only, I am fomewhat doubtful how
fwcr. to determine. But at length, conlidering that this Bill

was to intitle the Plaintiffs to a Forfeiture ; which
Word Forfeiture was the very Word ufed in the Deed ;
and Cince the Wife was in Danger of having that forced
from her, by the CompuHion of a Court of Equity,
which might occafion the Lofs of the whole Provifion
made for her ; and all this, in the Cafe of a Forfei-
ture, fo little favoured in this Court, againfl which,
in many Cafes, Relief is given, unlefs where there is
a Devife over, (as in the prefent Cafe ;) and it being
a Condition which, by the Ecclcfiaftical Courts, is held

void
(d) See Salk. 550. i Vern. 60, 109, 1 10.

De Term, S. Hi liar it, 1733. 239

void In all Cafes, the Rule being there, that {e) Mari-
tagium debet ejje liberum : Under thefe Circumftances
his Lordlhip laid, he could not reconcile himfelf to
the Compelling a Wife to confefs that, by which fhe
might forfeit all Ihe had in the World ; and that,
though the Defendants had not demurred, as they
fliould have done, yet, the Cafe being now fully be-
fore him, it feemed not agreeable to the Rules of
Equity to make the Defendants fuffer fo much for the
Miftake of their Counfel. Whereupon the Exception
to the Mafler's Report was allowed, and the Anfwer
held to be fufficient.

Sellor^ verfus Leiven. ^'^^^^s-

Lord Chan-
cellor Talbot.

THE Plaintiff brought his Bill agalnft B. whoThe Defen-
pleaded to the whole Bill; and the Court, onJf^jtSe
arguing the Plea, faved the Benefit thereof, ordering, B'H, and on
that it lliould ftand for an Anfwer ; but it was not pifa"ft wa^s
faid, one Way or other, whether the Plaintiff fhould ""'^^l^t '"

, ., •' Itand for an

have Liberty to except. Anfwer,

without fay-
ing one Way or other, whether the Plaintiff might except ; the Plaintiff cannot except, for
that the Court, in faying the Plea fhall ftand for an Anfwer, muft be intended to have meant
a fufficient Anfwer ; an infufficient Anfwer being as none.

After this, the Plaintiff put in Exceptions to the
Anfwer, fuppofing the Plea to be now as an Anfwer ;
and that the Court, in faying it fhould ftand for an
Anlwer, muft have intended a common Anfwer. But
the Defendant moved to difcharge the Exceptions, as
irregular, iniifting, that the Plaintiff can in no fuch
Cale except to the Anfwer, unlefs there is exprefs Li-
berty given him fo to do, or unlefs (as in fome Cafes)
it is faid, as to fuch Part of it, as is not Matter of
Account.

(e) See Vol. 2. 52S, 531.

Z40 De Term. S. Hi liar ii, 1755.

On the other Side it was obje£led, that of Courfe
the Plaintiff has Liberty to except, unlefs where the
Court does by exprefs Words take it from him ; and
that in the prefent Cafe it would be a great Hardfhip
on the Plaintiff, if he might not have the Benefit of a
Difcovery from the Defendant.

The Lord Chancellor doubting as to the Pra£lice,
ordered Precedents to be looked into, and that the Re-
gifler fhould fatisfy the Court, what had been the
Courfe in fuch Cafes, and that it fhould be moved
again.

Accordingly this Matter was moved the firff Day of
next Term, when, on producing Precedents, the Lord
Chancellor held, that when the Court orders that the
Plea fhall Itand for an Anfwer, without laying more,
it mufl be intended a fufHcient Anfwer, an infufficient
Anfwer beiqg as no Anfwer (/). Wherefore, this be-
ing taken to be a fufficient Anfwer, and no exprefs
Liberty to except, the Order to refer the Exceptions,
and the Exceptions themfelves, were difcharged.

Cafe 56. Martin verfus Kerr i die.

Lord Chan- Q

re//«r Talbot.

i"ofonrthe /lf-^^T"/N had recovered a Decree for t 300/. againfl
Body of the the Defendant Kerridge, and had fued out an At-

Sif'^rirrhis fJichment, returnable lafl Term, againft him, and on
Lands and ]SJon cji wventus retumed, took out an Attachment
liabk wT againlt him, returnable the next Term. On which

Sequeftra-

tion ; but no Sequeftration lies, till the Time for the Return of the Attachment is out, on

which the Body was taken.

(/) See the Cafe of Hawkins verfus Croek^ Vol. 2. 558.

I Attachment

De Term. S. Hi liar it, 1735. 241

Attachment the Defendant being taken, turned himfelf
over to the Fleet ; and the next Day (being the firft
Seal after Hillary Term) upon a Certificate of the
Warden of the Fleet, that he was a Prifoner there, the
Matter having been moved, the Lord Chancellor grant-
ed a Sequeftration, and this Order was drawn up, and
the Sequeftration ferved.

The next Seal I moved the Court to dlfcharge the
Order for the Sequeftration, for that the Attachment,
on which the Defendant was taken into Cuftody, was
not returnable until the next Term, all which Time
the Defendant had to pay the Money ; and it is a moft
tranfcendent Power exercifed by the Court ot Chan-
cery, beyond what the Common Law allows, tbtit^he
Plaintiff in this Court Ihall take the Body, and*vvri^ile
that is in Execution, feife the Land alfo ; but that ftill
this muft be, when the Defendant lies obftinately in
Prifon, and fpends his Eftate there without paying any
of his Debts, under which Circumftances it might be
reafonable the Plaintiff ftiould have if Sequeftration ;
whereas in the prefent Cafe it didJJnot appear before
the Return of the Writ, whetheistlft Defendant would
or would not pay the Money, aj^he had that Time
to redeem his Perfon.

Lord Chancellor : Until the R|fBp of the Writ, it Is
quite uncertain whether the I^IRdant will pay the
Money or no; and though it nw be reafonable, where ^"'°"='^''^

1 j^ r \ 1 T ftft n- 1 • tliatabeque-

the Court nnds that a Pritoner||^bltmately concmues m ftration
Prifon, there fpending his Eftate which fliould go to- Jafc tne' '"
wards Satisfadlion of his Debts, though it may, I fay, taken into
in that Cafe be but juft to let his Creditors have fuch ^^S'^J^
Eftate ; yet this Praaice with Regard to the Sequeftra- Chancery,
tion, as It is m its Nature iomewhat extraordmary, p^jfon ^ith.
ou"ht not to be extended ; for which Reafon, on De- out paying

Vr TTT r^ I h's Debts.

Vol. III. ^Iq q t)^^fe

24^ De Term. S. Hil/arii, 1735.

iate of the Matter and hearing Counfel on both Sides,
the Order for the Sequeftration was difcharged. (^)

^'^^57- Buck verfus Fawcett.

Lord Chan-

An Agree- T T P O N 2. Bill broiight in Equity, the Plaintiff and
ment was ^-^ Defendant entered into an Agreement, which
pfrdcs^and ^as figncd by the Parties or their Clerks in Court, and
by Confent afterwards by Confent made an Order of Court,
Order ^of " That both Parties would fubmit to fuch Decree as
Court, to « x\\Q Court ftiould make in this Caufe, provided it
fuch Decree " ftiould be on the Merits, and not on any Miftake in
aj the Court" the Plcadiugs J and that neither Party fhould bring
make, and " an Appeal." The Caufe was heard, and a Decree
^ow^^^zn ^^^^' ^'^'bereupon the Party againft whom the Decree
Appeal ; yet was, petitioned for a Rehearing, which being figned
Wd^to^i'' by Counfel, a Rehearing was ordered by the Lord
reheard. King, who made the Decree.

And this Day a Motion was made to difcharge the
Order for a Rehearing, feeing the Party petitioning
for it had entered into an Order by Content to fubmit
to the Decree, and not to appeal j that though an Ap-
peal is a Matter of Right, yet it is equally a Matter of
Right, that the Party fhould have it in his Power to
give up fuch Liberty of appealing, and, if he thinks
fit, to debar hlmfelf thereof ; that as he might releale
Errors at Law, fo might he alfo releafe Errors in
Equity. Nay, it was the ufual Terms for an Injunc-
tion, that the Party (hould bring no Writ of Error ;
that it was as reafonable one iliould bind hlmfelf from
Rehearing, as from Appealing ; that this was in Ef-

fe£t

(g) See I Chan. Ca. 91. Hyde verfus Pf////, of the Rife and Progrcls
of Sequeltrations.

De Term. S. Hi liar it, 1735. 243

1 * ' ' ^

it&. fubmitting to an Arbitration, and that the Award
of the Arbitrators ftiould be final and binding ; and
was more particularly proper in the principal Cafe,
where the Decree was to fell a mortgaged Eftate, which
by the Delay of a Rehearing, might happen to be eaten
up vv^ith Intereft ; and the Agreement being the volun-
tary A(9: of the Parties, ought to be binding.

Lord Chancellor : This Order is of a very fingular
Nature ; infomuch that had the Agreement been dif-
clofed to the Court, I hardly believe fuch Order would
have been made. Until a Decree Is figned and int
rolled, all Matters are open, and if there be any Error
in the Decree, it Is fitting the Court fhould have an
Opp6rtunity of amending it ; which is ftill more rea-
fonable In the principal Cafe ; as my PredecelTor, who
heard the Caufe, has ordered a Rehearing, and thereby
ftiewn, he was not fatisfied with the Decree. Let the
Order Hand for a Rehearing.

Jones verfus Thomas, ^'*^^^^

Lord Chan-
cellorTdXbot.

TN a Plea of a Purchafe, the Defendant in his DeniaHy ^j^^ «f
•■- of Notice, denied that at the Time of making his isa fuffident
Purchafe, and paying his Purchafe Money, he had any ^^"j^ °^
Notice of the Plaintiff's Title, ilfc. fay, that at

the Time of
the Purchafe he had no Notice, without faying, or at any Time before.

The Attorney General obje£led, that this was not
a good Denial of Notice, for it might be, he had No-
tice given him before, though he had no Notice at
the very Time of the Purchafe ; and in fuch Cafe, the
Defendant might forget the Notice, and would not
be liable to a ConvI61:ion of Perjury, if it fhould ap-
pear
Z

244 ^^ Term. S. Hi liar it, 17^3.

pear he had Notice only before. Befides, the iifual
way of Pleading is, that the Defendant had no Notice
at, or any Time before, the making of the Purchafe.

Lord Chancellor: Notice before, is Notice at the
Time of the Purchafe, and the Party will in fuch Cafe,
on its being made appear that he had Notice before, be
liable to be convifted of Perjury. Wherefore the Plea
is well enough, notwithftanding this Exception. [FJ

[F] In all Cafes of a Plea of a Purchafe, or Marriage Settlement,
Notice muft be denied, though not charged by the Bill ; and it may be
fufficienc to deny it either by the Plea or Anfwer, notwithftanding the
Objedion that it ought to be in the Plea, fince all the Defendant
has to do is, to prove his Plea ; for the Defendant is not to prove a
Negative, viz. That he had no Notice. However, it feems beft to
deny Notice both in the Plea and Anfwer. By the Lord Parker, Ajhton
verfus Curzon, Hill. 17 19, the fame Point determined by the Lord
King, in the Cafe of tVeJion verfus Berkeley, 17 July, 1729.

D E

2-49

D E

Term. Pafch^,

17 34-

Chaplin verius Chaplin. cafe 59.

Lord Chan-

[See a Branch of this Caufe^ ante 119]

"VORTER Chaplin, on his Marriage with Am «S^^^- J^.^t^Terin

nyn, by Leafe and Releafe dated the i 3 th and was raifed
14th of jfune, 1707, fettled his Eftate in LincolnJJnre ^^^J^^^f'
to the Ufe of himfelf for Life, Remainder as to Part tions, (Wz.)
to his Wife for Life, Remainder to the firft, ^c. Son ^°th a Pro-
of the Marriage in Tail Male, Remainder to Truftees vifo, that if
for 500 Years, in Truft, that if the faid Vorter Chaplin by Deed

lid

eave

fliould have no Iffue Male by the Marriage, or Ihould ^'" ^°"
have Iffue Male that lliould die without IlTue Male the Sum of
before their Age of twenty -one ; then the Truftees /^°'°f°°/ *'*
ftiould raife 10,000/. for the Daughters of the Mar- Daughters,
riage, payable at eighteen or Marriage. In which a'^sSit-''^
faid Settlement there was a Provifo, that if Vort&r t'O"- Tiie
Chaplin fhould, by Deed or Will, give or bequeath Land'to^th?
any Sum of Money to his Daughters, which ihould Daughters of
be adually paid to them; then fuch Money ifjo^oo/.
equal, fhould be a Satisfaction , if not equal, that it^'''/"°^^"
Vol. IIL R rr lliould

z^6 De Term, Pafch^, 1754.

fhould go towards Satlsfa£lion of their Portions ; un-
lefs the faid Porter Chaplin fhould by Deed or Will de-
clare the contrary ; with Remainder to himfelf in Fee.

Subfequent to the Marriage, the faid Porter Chaplin
charged the faid Term of 500 Years with additional
Portions of 10,000/. to Daughters, if no Son, but
fubje£l to the fame Trulls and Provifo as the former
Portions were fecured to his faid Daughters.

Afterwards Porter Chaplin having three Daughters
and one Infant Son by this Marriage, did by his Will
in 17 18, devife Lands of 200/. per Ann. to his Uncle
Sir George Thorold in Fee, in Truft for his three Daugh-
ters and their Heirs equally, leaving it intirely to his
faid Truflee to fell and difpofe of the PremiiTes, or
otherwife to order or manage the fame, as he fliould
think moft for the Benefit and Advantage of his faid
three Daughters, to whom he gave a Legacy of 1000/.
together with the Refidue of his Perfonal Eilate. Porter
Chaplin died, leaving Ifllie this Infant Son and thefe
three Daughters. The Son married, and died about
the Age of twenty Years, leaving his Wife privement
enjeint, which proved a Daughter, fo that he died
"without Iffue Male, whereby the Daughters became
intitled to this 20,000 /. charged upon the Land.
Soon after the Death of Porter Chaplin., there was a
Decree for the Sale of the Lands devifed for the Pay-
ment of the Teftator's Debts and Legacies.

It was admitted, that the Legacy of 1 000 /. and
the Surplus of the Perfonal Eftate, whenever it was
paid to the three Daughters, fliould go towards Satif-
fadion of the 1 0,000 /. and 1 0,000 /. Portions fo fe-
cured to them as aforefaid ; but it was moreover ar-
gued, that the 200/. per Ann. in Land devifed to Sir
George Thorold^ in Truft for the faid three Daughters,
I as

De Term. Pafcha, 1734. 247

as it was Money's Worth, and might the very next
Day after the Teftator's Death be turned into Money,
was within the Meaning of the Provifo, which in-
tended only that the Daughters ftiould be advanced
with Portions among them amounting to 20,000 /.
and that this was the ftronger, fince the Decree ob-
tained for the Sale of the Land, whereby the fame
was, at leaft in Equity, turned into Money.

Lord Chancellor : This Provifo feems to be little
more than what is implied ; for when on a Marriage
a Portion is fecured to a Child out of Land, and the
Parent gives the Child a Portion [in MoneyJ equal to
what is fo fecured, it Ihall by Implication be a Satisfac-
tion ; and if not equal, yet a Satisfaction -pro tanto*
But here the Father has limited himfelf, and afcertained
the Satisfaction, (t;/;^.) That it fhall be Money, Money
actually paid ; and when the fame Man, that has re-
ftrained the Satisfa£lion to Money, gives Land in Trull
for his Daughters ; this can no more be faid to be J^°"5y ^'?'*
Money, than Money can be termed Land, (a) which a quite °dif-
is alieni generis, and goes in a quite different Chan- j!^Jj^"'^^J^"'
nel ; for Inftance, the Money would go to the Daugh- therefore the
ters Hufbands, but the Land to their Heirs. Suppofe brtaken S
there had not been any fuch Provifo in the Settlement, Satisfaaion
then the Land given to or in Truft for the Daughters °'^*^'^°' "'^
would have been no Satisfaftion ; and if fo, the Pro-
vifo makes ftill ftronger againft fuch Gonftruftion, in
that it exprefly confines the Satisfaftion to Money, and
particularly declares what fhall be a SatisfaClIon, which
.implies a Negative, (w^.) That nothing elfe fhall.
So if the Teftator had bequeathed a Term for Years,
or fome Goods to his Daughters, thefe fhould not

have

(a) See particularly the Cafe of Eafiivood verfus fVinck, Vol. 2. (616.^
the Opinion of the Mailer of the Rolls exprefs to this Purpofe.

Z48 De Term. Pafch^e, 1734.

have gone towards Satisfa£lion of the 20,000 /. Neither
will the Decree for the Sale alter the Cafe ; for if this
be to be looked upon as a Satisfa6lion, it muft have
been fo at the Time of the Death of the Teitator, or
not at all. Now, at that Time, this being Land de-
vifed, could not have been fo taken ; and if the Tru-
ftee, who by the Will is directed to aft in every Thing
for the Benefit and Advantage of the Daughters, fhould,
by turning the Land into Money, make that a Satif-
fa6lion which otherwife would not have been fo, fuch
a Proceeding in a Truftee would be a£l:ing the very re-
verfe of what the Teftator direds, and a manifefl
Breach of Truft. Befides, the coming into fuch an
Interpretation of Wills, would create the greateft Con-
fulion, by giving a Latitude and Power to a Judge to
make a new Will, and would introduce the utmoft
Uncertainty in the Conftru£lion thereof.

Wherefore the Lord Chancellor with great Clearnefs
determined, that the Land devifed by Porter Chaplin,
in Truft for the Daughters, ftiould not be conftrued to
go towards Satisfa£lion of the 1 0,000 /. and 1 0,000 /.
Portions, or either of them, fecured to the faid Daugh-
'ters by either of the Settlements.

Robinfon

De Term. Pajch^, 1734. 249

Robinfojt verfus Pett. cafe^o.

Lord Chan-
fr/Zer Talbot*

On an appeal from a Decree at the Rolls.

HE Qiieftlon was, whether an Executor that had ^'j^^^.^'^g
renounced, but had yet been ailiftlng in the an Executor
Truft, according to the Requeft of the Teftator, ftiould ^^53^-^
have any additional Confideration, when he had an and Trouble,
exprefs Legacy for fuch his Affiftance ? wh'et'Le

is an exprefs
Legacy for his Pains, 6fr, Neither will it alter the Cafe, that the Executor renounces, and
yet is aflifting to the Executorfliip ; nor even though it appears, that the Executor has de*
ferved more, and benefited the Truft, to the Prejudice of his own Affairs.

Robert Petty a confiderable Draper and Mercer at
Ajpallfloneham, in Suffolk, made his Will in OBober,
1 7 I o, whereby he devifed the Surplus of his Real and
Perfonal Eftate to his Grandchildren, and appointed
the Defendant Pett, who had been firft his Servant, and
afterwards his Journeyman, together with one Larkirty
Executors, giving to each of his Executors 1 00 /. for
their Trouble about the Execution of their Truft, and
directing, that if the Defendant Larkin ftiould refufe
the Executorfliip, he ftiould lofe his Legacy ; but if
the Defendant Pett ftiould refufe to take on him the
Executorftiip, yet that he ftiould have his 1 00 /. paid
him, provided he would be aiding and aftifting in the
Management and Execution of the Truft. Larkin only
proved the Will, and the Defendant Pett renounced the
Executorfliip.

On a Bill brought by the Plaintiffs, the Grand-
children, againft the Executors, for an Account of the
Perfonal Eftate, the Defendant Pett was aftowed his
1 00 A Legacy: But he likevvife infifted to have 400/.

Vol. III. Sff more

l^o De Term. Pafch^, 1734.

more for his extraordinary Pains, Trouble, and Ex-
pence of Time in and about the Affairs of the Tefta-
tor, particularly for having made up fome very intri-
cate Accounts, and got in fome defperate Debts ; and
there was fome Proof, that the Defendant Pett had
greatly benefited the Teftator's Eftate, and prejudiced
his own, (he himfelf being a Mercer) and that he had
negle£led his own Trade, and loft fome Cuftomers, while
he was looking after the Concerns of his Teftator.

This Caufe was firft heard before the Matter of
the Rolls, Sir Jofeph Jckyll, who declared it to be a
Rule fo fettled, that a Truftee, or Executor in Truftj
Ihould not have any Allowance for his Care and
Trouble, unlefs there were fome particular Words in
the Will for that Purpofe, that he could not break
into it ; and that there was the lefs Occalion to do fo
in the prefent Cafe, as the Teftator had here given
the Defendant an exprefs Legacy of i oo /. for his Care
and Trouble ; fo that the Teftator himfelf had fet an
Eftimate and Value upon it of i oo /. ^'hich, fmce the
Defendant had accepted, the Court could not in-
creafe.

From this Decree there was an Appeal to the Lord
Chancellor, before whom it was infifted by the Attor-
ney and Solicitor General, (who had both figned the
Petition of Appeal) that the Defendant Pett having re-
nounced the Executorftiip, and the other Executor
only having proved the Will, the Defendant Pett was
as a Stranger ; and in Regard he appeared to have
done thefe eminent Services to the Eftate, fo much to
his own Prejudice, he was intitled to a ^lantum meruit^
in the fame Manner as if he had not been an Exe-
cutor: So that this was out of the common Cale, and
to be confidered as if the Defendant had been em-
ployed in the Nature of a Bailiff, ^c. for which Rea-
2 fun

De Term, Pafch^, 1734- ^9^

fon it was prayed, that the Mafter might be direfled
to have Regard to, and make fome Allowance for, the
great Trouble and fuccefsful Pains taken by the De-
fendant, in Relation to the Affairs of the Teflator.

Lord Chancellor : It is an eftabliihcd Rule, that a
Truftee, Executor, or Adminiftrator, fliall have no
AllovVance for his Care and Trouble : The Reafon of
which feems to be, for that on thefe Pretences, if al-
lowed, the Truft Eftate might be loaded, and rendered
of little Value. Beiides, the gteat Difficulty there
might be in fettling and adjufting the ^antum of fuch
Allowance, efpecially as one Man's Time may be more
valuable than that of another ; and there can be no
Hardlhip in this Refpe£l upon any Truftee, who may
chufe whether he will accept the Truft, or not. The Where there
Defendant's Renouncing the Executoriliip is not mate- ecmoTs^ and
rial, becaufe he is ftill at Liberty, whenever he pleafes, °"'^ renoun-
to accept of the Executorfhip ; otherwife, if btoth the at Liberty to
JExecutors had renounced, and the Ordinary had there- j5"p' °^ ''^^
upon granted Adminiftration. And if this were to ftip ; y^<:w.

where both

make any Difference, it would be an Art pra6lifed by

J r 1 r ■ • renounce;

Executors to get themfelves out of this Rule, which tho', in thii
I take to be a reafonable one, and to have long pre- ,^^ZL ^^"^

^ or common

vailed. But further; in the prefent Cafe, the Teftator Lawyers dif-
has by his Will exprefly direfted what lliould be the civiiians,the
Defendant's Recompence for his Trouble, in Cafe of !^"^'' ^°^^-
his refufing the Executorfhip, (t;/!^.) that he ftill fhould rJ

ing, that a

enuncia-

have the i oo /. Legacy, to which I can make no Ad- *'°V" l^ »

d-ition. However, it being an hard Cafe, let the De- onJy by one

fejidant take back the Depofit* \ h\ °^ *''^'"' ''

i L J ri r psrsmptory.

■ ■ StOnehoufe See Salk.

311, Hotus

[A] An Executor in Trufl:, who had no Legacy, and where the Exe- 2,^^ Petre. '
cution of the Truft was likely to be attended with Trouble, at firft re-
tufed, but afterwards agreed with the Refiduary Legatees, in Confidera-
tion of 100 Guineas, to aft in the Executorfhip, and he dying before
the Execution of the Truft was compleated, his Executors brought a
Bill to be allowed thefe 100 Guineas out of the Truft Money in their

Hands,

292. De Term. Pafchce, 1734.

One devifes
a Rent-

Cliaroe to be

Cafe 61. Stonehoufe, Efq; ^ Ux verfus

jekyti*- Sir ^ohn Evelyn.

Jler of the
Rolls.

TH E Lady Wyche, felfed in Fee of a Rent-Charge
of 3 8 /. \6 s. per Annum., by her Will devifed
ibid to pay this RcHt-Charge to Thomas Dalton, Efq; (late Lord
mSdng'to Chief Baron of the Exchequer in Ireland) and his
800/. and Heirs, in Truft to pay feveral Sums to feveral Annui-
ChL^e ^" ' fsnts for their Lives, and after their Death to pay
fliouidfeii ^00/. to the Plaintiffs, 300/. to 5. and 200/. to C.
theTeftator and if the faid Rent-Charge fliould fell for 1000/,
gives a fur- f }^gj^ jj^g Teftatrix (who died foon after making her

ther Legacy i r i r i

of 200/. Will) gave the further Legacy -ot 100/. to B. and

the Rent-
Charge fells for above 800/. and lefs than looo/i what exceeds the 800/, (hall belong to
the Heir, as a refultijig Truft.

Hands, infifting, that the Refiduary Legatees might as well make a
Contraft with the Executor touching the Surplus, (which was their own
Property) as the Teftator himlclf; and that no Harm could happen
thereby to the Truft Eftate. But the Court faid, all Bargains of this
Kind ought to be difcouraged, as tending to eat up the Truft ; and here
the Executor had died before he had finifhed the Affairs of the Truft :
Wherefore the Plaintiff's Demand was difallowed. Gould verfus Fket-
woodf Mich. 1732, at the Rolls. And it feems to be owing to this
Jealoufy, which a Court of Equity entertains of an Executor or Truftee,
that if they compound Debts or Mortgages, and buy them in for Icls
than is due thereon, they ftiall not take the Benefit of it themfelves, but
other Creditors and Legatees (hall have the Advantage of it, and for
want of them, the Benefit fhall go to the Party who is intitled to the
Surplus; whereas, if one who ads for himfelf, and is not in the Cir-
cumftances of an Executor or Truftee, buys in a Mortgage for lefs than
is due, or for lefs than it is worth, he fhall be allowed all that is due
thereon. See Salk. 1 55. Thus in the Cafe- of Bald'jjytj verfus Banijhr,
heard at the Rolls, Tajcba., 1718. The Cafe was, A Mortgagor in Fee
died, and the Mortgagee bought in the Mortgagor's Wife's Right of
Dower. Decreed, that the Heir of the Mortgagor, on his bringing a
Bill to redeem, ftiould have the Benefit thereof, on this Principle, that
the Mortgagee is but a Truftee for the Mortgagor after his Money paid.
So in the Cafe of Pcnvell verfus Glover, Mich. 172 1, at the Rolls, where
a Guardian compounded Debts, Dicreed, it fhould be for the Benefit of
the Infant.

I 100/.

De Term. Pafch^e, 1734. 293

1 00 /. to C. All the Annuitants were dead, the laft
of whom died the 24th of March, ^32, and the
Lord Chief Baron Dalton, the Truftee, was dead, ha-
ving left an Infant Son and Heir. The PlaintiflFs brought
this Bill to compel a Sale of the Rent-Charge, and to
be paid their 300/. and Intereft.

■ Upon Opening the Pleadings, the Matter of the Rolls
ftarted this Qiieftion : Suppofe the Rent-Charge fhould
fell for above 800/. and lefs than 1000 A which, pro-
bably, may be the Cafe, who will be intitled to the
Surplus beyond 800/? To which it was anfwered by
the Counfel, that in the Cafe fuppofed, as the Heir
was dilinherlted, and the other Legatees had no Pre-
tence to claim more than their Legacies, the Monies
produced by the Sale, which fhould exceed 800/. and
fall lliort of 1000/. ought to be diftributed in Pro-
portion to the Legatees B. and C.

Cur : Nothing appears to be faid in the Will to that
Purpofe; fo that to admit fuch Conftruftion, would
be to make a new Will. Wherefore, as to all the Mo*'
nies arifing from the Eftate devifed to be fold, and not
difpofed of by the Teftatrix, there muft be a refulting
Truft for the (b) Heir; confequently, if the Rent-
Charge be fold for above 800/. and under 1000/. all
the Monies exceeding the 800 /. muft be paid to the
Heir at Law.

In the next Place it was infifted, that whereas thefe
Legacies were given out of a Fund that yielded an (c)
annual Profit, namely, this Rent-Charge, the Legacies
ought to carry Intereft from the Death of the furviving
Annuitant, who died on the 24th of March, 1732.

(l>) See the Cafe of Crufe verfus Barky, ant' 22.

Vol. III. T c t Cur :

294 ^^ Term, Pafch(je, 1 7 34.

A Legacy CuT : The Legacies ought to carry Intereft from that

RenN ^ Time ; but then it muft be only in Proportion to what

Charge fiiaii [he Rent-Charge brings in, not more ; and if there be

ean-y nte- ^ gurplus bcyond the Intereft, that muft go to the

Heir at Law. And with Regard to the Heir at Law

of the Truftee, who is an Infant, he being but a bare

Truftee, is to convey according to the late Statute of

7 AiiYiAi cap. 29.

Where the Laftly, In Proving this "Will (It being a Will difpo-
owns^'his fi"g of a Real Eftate) the Proof was full, that the
Hand before fhrcc fubfcrlblug WltneiTes did fubfcribe their Names
neffes, who in the Prefence of the Teftatrix ; but one of them Ikid,
fubfcribe the jjg ^jjj ^ot fee the Teftatrix lign, but that fhe owned.

Will in the o ' '

Teftator's at the fame Time the Witnefies fubfcribed, that the
S>e^ wS 'is Name iigned to the "Will w^as her own Hand- Writing ;
good, tho' which his Honour held, without all Doubt, to be fuf-
nefr?dil" ficient. And I, having the iame Day Occalion to fpeak

not

fee the with Mr. Juftice Fortefcue Aland, mentioned this to him,
the w°ii.'^" who faid it was the common Pra£lice, and that he had
twice or thrice ruled it fo upon Evidence on the Cir-
cuit ; and that it is fufficlent, if one of the three fub-
fcribing WitnefTes fwears the Teftator acknowledged the
Signing to be his own Hand-Writing. And it is re-
markable, that the Statute of Frauds does not fay, the
Teftator ftiall fign his Will in the Prefence of three
Witnefl*es, but requires thefe three Things ; Firfl, That
the Will ftiould be in Writing ; idly. That it fhould be
figned by the Teftator; and, T^dly, That it fliould be
fubfcribed by three Witnefles in the Prefence of the
Teftator. i

Gibbs

De Term. Pafchce, 1734. 2^9

G'thhs verfus Cole. ^^^^^^-

Lord Chan-
«?//«>- Talb(?t.

yS. had a Patent granted to him by the Crown, for
the fole Printing and Selh'ng a Book of Architec-
ture, intitled, Qibbss Defigns. Upon filing the Bill, the
Plaintiff, the Patentee of this new Boole, obtained an
Injunflion againft the Defendant, who had printed the
ikme ; and on coming in of the Anfwer, it being ^j^^^''*
moved to difTolve the Injunftion, Affidavits were al- be read for
lowed to be read, in Order to fupport the Injun£lion,jJ.^^''^^g'JJ^
on Account of the great Prejudice that would accrue invention,
to the Party, were the Injunftion to be diffolved, and ^^^j^^^^J'^;
the Book allowed to be difperfed and fold by the De- injun<^'on

r J on coming in

tendant. of the An-

fwer.
Where there is a Grant of a new Invention by Patent, a fmall Variation of the Invention
will not intitle another to break in upon the Patent. So in the Cafe of a Grant of the fole
Printing of a Book to the Author, who takes whole Paragraphs from another Book, this
not material ; for it may be neceflary to introduce what is new.

And in this Cafe it was held by the Court, that a
fmall Variation of the Invention would not intitle the
Defendant to break in upon the Patent, in Regard, at
that Rate, any Grant of a Patent for the like Purpole
might be fruftrated. So, though in this Book, the fole
Printing whereof was granted by Patent to the Plain-
tiff, fome whole Paragraphs appeared to be taken out
of former Authors ; this was thought not material ;
for it might be neceffary, in Order to the Introdu-
cing of what is new. Wherefore the Injunftion was
continued.

Holder

2^6 De Term, Pafchce, 1734.

Cafe 63. ' Holder verfus Chambury.

Lord Chan-
ff//ar Talbot,

Tho'aBiii ^TpHE Plaintiff Ho/^^r, Lord of the Manor of Bath-
'o^ecov'ir^a -*- hampton, in Somerfet/Ijire, brought this Bill againft
fmaii Quit- the Defendant, foe the Arrears of a Qiilt-Rent of 7 s.
^""hJ t^'ap'^j^r J«««w, due to him as Lord of the Manor; and
pear, that another Part of his Bill was, to hold a large Down
Sno^Re'- belonging to his Manor, difcharged of the Claim of
medy fortheCQuii^on, vvhich the Defendant had upon the faid

fame at Law. ._ *

Down.

The Plaintiff did not fhew any Difficulty which
hindered him from recovering the Qiiit-Rent at Law,
but faid, that his Right thereto would appear by the
Writings in the Defendant's Cuftody.

The Defendant by his Anfwer faid, he did not be-
lieve the Rant was due, but was willing to give it up,
and pay it and the Arrears, if he might quietly en-
joy his Common ; reprefenting withall, that he was
but a poor Tenant of the Manor, and could not bear
the Expence of a Suit for the Qiiit-Rent, which in a
fmall Time would come to much more, than the In-
heritance of the Rent was worth ; that he had offered
to fhew all his Deeds, and refer it to any two indif-
ferent Perfons ; but that the Plaintiff had threatened
to ruin him, and to fpend 500 /. for that Purpofe.

By the Plaintiff's Proofs it appeared plainly, that this
7 s. per Annum Quit-Rent was due, and had been re-
gularly paid, till 1718, and that it was payable at
Lady-day and Michaelmas in Refpe6l of the Defendant's
Lands held of the Manor ; and no Difficulty appeared

a ■ by

De Term. Pafch^_, 1734. 297

by the Plaintiff's Bill, as to the Defcribing or Abutting
the Land.

Lord Chancellor : The Bill, with Refpe£l: to the Lord of a
Plaintiff's holding his Down difcharged of the Defen- ^f„"„7, b.ii
dant's Claim of Common thereon, is improper ; for by a^ainft a
the fame Reafon, the Plaintiff may bring a feparate how Toown
Bill againft every Tenant of his Manor who fliall fee belonging to
up the like Claim. As to fuch other Part of the Bill difcharged of
as would recover the Qiiit-Rent ; there may be indeed ^'|^ Tenant's
a Cafe fo ciraimftanced, as to make a Bill of that Kind Right of
proper ; as where the Lands out of which it is claimed ^°"g[^°'^
are wholly uncertain, (d) and where the Days, on this an im-
which the fame is payable, are alfo uncertain : But then ^'^p" ^{[j
thefe Things ought to be laid in the Bill, elfe a Lord for a Q.nt-
may be very vexatious to a Tenant, and make him be^pJope? m
fpend in his own neceffary Defence more than three fo"^--' Cir-
Times the Value of the Rent. Here it is hard for the and" what"'
Defendant, when he does not know the Plaintiff's
Title to the Quit-Rent, to admit his Inheritance to
be for ever liable thereto. The Bill appears to be
merely for Vexation : For the Plaintiff might have had
a plain and eafy Way to have recovered the QLiit-Rent
without this expenfive Method, (vi^) by a Diftrefs; and
it is proved he has harraffed the Defendant with fre-
quent Diftreffes, and would not, after the Defendant
had replevied, proceed to an Avowry. However, I do
not fee it will be for the Defendant's Benefit to difmifs
the Bill as to this Qiiit-Rent ; for then the Plaintiff
will immediately fue for it at Law.

(d) See ant' 148. the Cafe of North verfus The Earl and Count efs of
Strafford ; alfo that of the Duke of Bridgwater verfus Sir Francis Edwards j
Bart, upon an Appeal in Parliament from a Decree of the Court of Ex-
chequer, February, 1733.

Vol. III. U u u Where-

98 he Term. Pa[chce, 1734.

CauV°to Wherefore, fince it appears here that the Quit-Rent

fave Ex- has been paid to Michaelmas, 1718, let the Regifter,

where the 3nd Hot the Maftcr, compute the Arrears of the Qiiit-

Matter is Rgut f xom Michaelmas, 17 18, to this I'ime ; and let

Court will the Plaintiff's Right to the Rent be eftabliihed, but

th?Rel^iftcr ^^'i^h'^^^'^ Cofts. The Bill to be difmiiled with Cotts as
infteaj^of a to all the Rclidue.

Maftcr, to

compute the Intereft, or Arrears of Rent.

Cafe 64. Atkinjon verfus Hiitchinfon.

Lord Chan-
cellor Talbot. ^_— , rr rr r c r

Devife of a r* ^^^^^d Baxtcv, poilefTed of a Term for forty Years
Term to A. ^^ held of the Church of CarMe, by his Will dated
mainder to" fJ^^ ^ 2.i\\ o{ September, n3'» devifed the Premiffes to
the chii- Truftees, in Truft to apply the Rents and Profits to
Ira "e at his k^ep the Premifles in Repair, and to renew as often as
Death, and f^ej-g fhould bc Occafion ; and then in Trufl to pay

if trie C-,Jiil—

dren of A. the OvcrpUis thcrcof to the Teltator's Wife Sarah for
die without j^gr Lif If ^g Ihould fo long continue a Widow, and

liiue, then ' O '

to B. The after her Death, or fecond Marriage, to the Ufe of fuch

S'd'f Witt Children as the Teftator fhould leave at the Time of

out leaving his Death, equally amongfl them ; and in Cafe any of

^vlng1"t^the ^is faid Children fliould die without leaving any IfFue,

Time of the Share of him or her fo dying, to go to the Sur-

thl^a c?od ' vivors or Survivor of them , and in Cafe all his faid

Devife over Children fhould die without leaving any liTue, then to

the Ufe of John Hiitchinfon. The Te^ator made his

Daughter Mary fole Executrix, and died, leaving one

Daughter, who afterwards died without leaving Iffue

at her Death ; and whether the Devife over to the faid

John Butchinfon was good, was the Qiieftion ?

Mr. Verney infifled, that the fame was void ; and

that, though this was the Devife of a I'luit, yet it

2 niuft

De Term. Pafchae, 1734. 2.99

mnft be conftrued as a legal Eftate, and as it flood
originally in the Will, without being alTifted or made
good by any fubfequent Accident ; that it might be
laid down as a Rule, that where the Words of a Will,
in the Cafe of a Real Ell:ate, are fufiicient to give an
Eftate-tail, there the lame W(jjds, when applied to a
Term for Years, will convey the intire Intereft in fuch
Term : Now here could be no Doubt but that, had
the Teftator been feifed of Lands in Fee, inflead of
the Term, and devifed them in this Manner ; the firil
Devifee [the Daughter] would have been Tenant in
Tail ; and this was the ftronger, for that the firil De-
vife, after the Death or fecond Marriage of the Tefta-
tor 's Wife, is to fuch Children as the Teflator fijould leave
at the Time of his Death, which Words were afterwards
dropped : And from whence could proceed that Change
of the Teftator's Expredion, but from a Change of his
Intention ? Befides, here was a Pojfhbility upon a Pof-
fibility, under which Mr. Hutchinfon, the laft Devifee
over, claimed, and therefore it could not be good.

Lord Chancellor : I admit the Devife of a Truft muft The Devife
have the fame Conftru£lion as that of a legal Eftate, be coidimed
and that Accidents fubfequent to the Making of the '" '^^ ^^""^
Will, iliall not any ways affeft fuch Conftru£lion : that of a
And further, that though the Intention of the Teftator ''-J^ ^^jj^*^'
is greatly to be regarded, yet this his Intention muft be varied by
ever be confiftent with the Rules of Law. But then ^''•""'^f "'

I'll • ' T 1 Accidents.

the Rule which has been inlifted on, that whatever

Words of a Will in the Cafe of a Freehold will create

an Intail, the fame, when made Ufe of with Refpetl to

a Term, will pafs the abfolute Intereft in fuch Term :

This Rule (I fay} feems to be laid down in too great

a Latitude. So far indeed may be agreed, that w here wwd^ j/a

the Words of a Will, when ufed with Regard to a Free- Devife of a

nOlU, would niake
an cxprefs
Eftate-tail in the Cafe of a Freehold, there a Devife over of fuch Leafchold is void ; /reus if
the Words in the former Devile would, in tlx Cafe of a Freehold, make an Elhitc-tad only
by Implication.

z6o De Term. Pafchcc, 1734.

hold, give an exprefs Eftate-rail, there the fame Words
appHed to a Term will pafs the whole Intereft in fuch
Term : As if a Term for Years be devifed to A. and
the Heirs of his Body, Remainder to B. in fuch Cafe
the Remainder is void. So if the Devife of a Term
were to A. for Life, Remainder to the Heirs of his
Body, Remainder over to B. fuch Remainder to B,
would be void, Cauja qua ftipra.

But in the principal Cafe, the Words of the Will
would, if ufed with Refpe6l to a Freehold or Real
Ertate, pafs an Intail only by Confl:ru6lion and Im-
plication ; and that thefe fhould carry the abfolute In-
tereft in the Term, is no neceffary Confequence.
Where Words are capable of a twofold Conftru6lion
even in the Cafe of a Deed, (and much more of a
Will) it is juft and reafonable that fuch Conftru6lion
fhould be received, as tends to make it good ; and in
the principal Cafe, the Devile of the Term to the Tefta-
tor's Children, and if they fliould die without leaving
any IlTue, then to Hutchinjon^ may eafily and naturally
be underftood to fignify, if they die without leaving
any Iffue at the Time of their Death ; nay, much
more naturally than in the other Cafe, (w:^.) If there
fhould be a Failure of lifue of them a Hundred Years
hence. The Reafon given in the Cafe of Target verfus
Gaunt, reported in the Abridgment of Cafes in Equity
193. (e) is very ftrong in Support of this Devife
over, which in EiFeft was : One polTeffed of a Term
for Years, devifed it to his Son A. if the Term fhould
fo long continue, and no longer, and after his Death
to fuch of his Iffue as he fhould devife it to, and if
A. fhould die without Iffue, then to his (the Teftator's)
Son B. A. died without Ifllie, and without making
any Difpofition of the Term, and the Queftion being,
whether B. the younger Sori was intitled, it was de-
I creed

{() See alfo Vol. i. 433.

De Term. Pafch^, 1734. z6i

creed in his Favour ; for that the Words dying without
Iffue have a twofold Meaning : The one to fignify a
dying without Ifllie at the Time of one's Death, the
other a dying without Iflue whenever fuch Ifliie fails ;
and though, where Lands of Inheritance are devifed to
A. and if he die without liTue, then to B. an Eftate-
tail will pafs to A. by Implication, in order to compre-
hend the Iffue to all fucceeding Generations ; yet in
the Cafe of a Term for Years which cannot poffibly
defcend to llTue, there is no Neceflity to make fuch a
Conftru£lion ; for which Reafon, the moft obvious and
natural Senfe (hall there take Place, and the Devifor be
prefumed to have meant, if A the firfl: Devifee die with-
out liTue living at his Death ; confequently the dying
without Iffue being confined to a Life, makes the Limi-
tation over good, by way of Executory Devife. (/) So
the Cafe of Forth verfus Chapman^ feems to be in Point,
where one poflefled of a Term for Years, deviled it to
A. for Life, and if A. died leaving no Iffue, then to B.
It is true, the Matter of the Rolls (Sir Jojeph Jekyll)
was of Opinion and decreed, that the Devife over to B.
was void ; but on an Appeal, the Lord Chancellor
Parker held it good, for that there can be no Difference
between the Words without leaving Ijfue, (which is con-
llrued to mean (g) liTue at his Death) and leaving no
Ijjue. Farther, what made it infinitely ftronger, was,
that the Fa£l; happened to be (though this was not ob-
ferved by the Counfel in that Cafe) that the Teftator
had a Real and Leafehold Eftate, and devifed all (h) his
Eftate, as well Freehold as Goods and Chattels, to A.
and if A. died leaving no IlTue, then to B. and there
the fame Words in the fame Will were conftrued to
make the feveral Devifes good, and to give the firft
Vol. III. X X X Devifee

(f) Vol. I. 662.

(g) See Vol. I. 198. NichoUs xerius Hooper^ and 563. Pinhury verfus
Elkin.

{h) Vol. I. 66 J.

2^2 De Term. Pafchcc, 1734-

Devifee an Eftate Tail in the Freehold, and but an
Eftate during his Life in the Leafehold.

Wherefore in the principal Cafe, the Intention of
the Teftator being plain, that if A. died, and left no
IlTLie, the Devife over fhouid take EfFe6l, the Lord
Chancellor, in Compliance with fuch Intention, and
alfo agreeably to the Precedents in Point, decreed in
Favour of the Devifee over, {yi-z^ that the Words, if
the firft Devifee died without leaving any Iffue, muft
be intended to mean, without leaving Ifllie at his
Death.

Cafe 65. j^o^i^ verfus Burron.

Lord Chan-
cellorTAhot.

An Eftate ' I ^ H E Bill was fof an Account of the Rents and
pur autre Fte J. pj-^^^g ^^ jj^^j.^ j^^effuages and Lands in War-

IT13V DC 11- ^

miie&xoA. rington, in LancaJInre, on this Cafe: John Cajfon, feifed
maS fo' o^ ^" Eftate for three Lives in the Premilfes, by his
5. for this is Will dated the 12th of January, 1684, devifed them
fcription/' ^o ^^^s Daughter Mary MolUneux for Life, Remainder to
■who fliaii l;ier jffye Male, and for want of fuch. Remainder to
Occupants' one Lotp, under whom the Plaintiff claimed. Mary
during the j^iolHneux bv Leafe and Releafe conveyed the Premilfes,

Lire of Ce- ..^pj- p \ •«*• • \

jiuy que Vie. HI Conliqeration or her Marriage with Ed-ward Burron,
to the Ufe of herfelf and her intended Hufband, and
the Heirs of their Bodies, Remainder to the Heirs of
her Hufband Burron, In 1705, Mary died without II-
fue, and the Plaintiff claiming under the Perfon in
Remainder, now brought this Bill for an Account of
the Rents and Profits.

The Qiieftions were, fr/l. One having an Eftate for

three Lives, and deviling it to A. in Tail, Remainder

to 5. whether this Remainder was good? idly, Sup-

I poling

De Term, Pafchce, 1734. 263

poling it to be good, whether A. by fuch Leafe and
Releafe could bar it ?

As to the firfl: it was faid, and fo agreed by the
Court, that the Limitation of an Eftate pur autre Vie
to A. and the Heirs of his Body, makes no Eftate Tail
m A. for all Eftates Tail are Eftates of Inheritance, to Ail Eftates
which Dower is incident, and muft be within the Sta- \^l^^'\i
tute de Bonis ; whereas in this Kind of Eftate, which inheritance,
is no Inheritance, there can be no Dower, neither is Sowe'r^is in-
it within the Statute, but a defcendible [B] Freehold cidcnt, and

1 muft be

only. within the

Statute di

Alfo the Lord Chancellor held plainly, that this was
a [C] good Remainder to B. on A.'s Death without 11-
fue, it being no more than a (/) Defcription, who

ftiould

[B] For which Reafon it has been determined, that where a Leafc for
three Lives has been granted to a Man and his Heirs, and fuch Grantee
died, leaving an Infant Heir •, the Parol fhould not demur. By the Lord
Talbot, in another Branch of the Caufe of Chaplin verfus Chaplin, i8th
of July, 17 3 5, vide po^.Sb^

[C] The Objeftion againfl: this Remainder being good is ; for that
when the Leflee had devifed the Premifles in Tail, he then had Nothing
left in him but a Poffibility, which he could not devife or limit over ; as
if a Man were feifcd in Fee-fimple, and at Common Law had granted
Lands to one and the Heirs of his Body, this was a conditional Fee )
and forafmuch as the Donor had only a Poffibility of Reverter, he could
not limit it over. Now, if at Common Law an Eftate in Fee could not
be limited over after an Eft:ate given to one and the Heirs of his Body,
much lefs fhould an Eftate for three Lives be limited over after fuch a
Failure of IflTue. And as to the Notion, that in this Kind of Limitation
the Fleirs of the Body of y^. take only as fpecial Occupants ; and that a
Man may name as many fpecial Occupants, as he pleafes 5 by the fime
Reafon, it may be argued, that this Eftate for Lives may be limited to
^. and his Heirs; and if yf. die without Heirs, then to 5. and his Heirs,
which certainly would be a void Limitation to B. and in Prefumption
of Law, the Continuance of the Iftue of a Man's Body may be for ever.
From whence it fhould feem, that after the Leflee for three Lives has
granted or devifed the Premifles to J. and the Heirs of his Body, he
(the Leflee) has Nothing but a Poflibiiity, which he cannot grant, or
limit over. Note ; This appears from the Reporter's Manufcript to have
been the Opinion of Mr. fVehl), an eminent Conveyancer, late of the
Inner Temple. However, the Law is fettled as above.

(;■) See the Cafe of Chaplin verfus Chaplin, ubi fupra.

2^4 De 7erm. Pafchce, 173^.

— ■ — — ■ — it

fhould take as fpecial Occupants during the Lives of
thefe three Cefluy que Vies. As if the Grantor had faid,
" Inftead of a wandering Right of [D] general Oc-
" cupancy, I do appoint, that after the Death of A.
the Grantee, they who lliall happen to be Heirs of
the Body of A. lliall be fpecial (k) Occupants of the
" Premifles ; and if there fhall be no Iffue of the Body
" of A. then B. and his Heirs fhall be the fpecial Occu-
" pants thereof." And that here can be no Danger
of a Perpetuity ; for all thefe Eftates will determine on
1 the

[D] It is obfervable, that at Law there could be no general Occupant
of a Rent : As if 1 had granted a Rent to //. for the Life of B. and //.
had died, living B. the Rent would have determined. 2 Rol. Abr. 150,
Salk. 189. But there might have been a ^d'f;W Occupant of a Rent. As if
I had granted a Rent to A. and his Heirs for the Life of B. and A. had
died, living B. and leaving an Heir ; fuch Heir would have been a fpe-
cial Occupant. Yet, if a Man had granted a Rent to A. his Executors
and Afligns, during the Life of B. and afterwards the Grantee had died,
leaving an Executor, but no Alllgnee, the Executor fhould not have had
the Rent, in Regard it being a Freehold, the fame could not defcend to
an Executor. Mo. 664., 2 Rol. Abr. 152, 3 Car. Sir Richard Buller t?
«?/' verfus Chiverlon, agreed and admitted by Jones Juftice tr Cur*, and
by the Counfel on both Sides, that the Rent is extinft •, though there
feems to have been no found Reafon for this Dlftindion. But as to Rents
granted pur autre Vie, the Statute of Frauds and Perjuries has made
an Alteration ; for by that Statute, any Eftate pur autre Vie is made devi-
fable, and if not devifcd away, fhall be AlTets in the Hands of the Heir,
if limited to the Heir; if not limited to the Heir, it fhall go to the
Executors or Adminiftrators of the Grantee, and be Aflcts in their
Hands. So that, if fince that Statute a Rent be granted to A. for the
Life of B. and A. die, living B. A.'s Executors or Adminiftrators fhall
have it during the Life of B. for the Statute is not only made to prevent
the Inconvenience of Scrambling for Eftates, and getting the firft PoC-
feffion after the Death of the Grantee ; but likewife for preferving and
continuing the Eftate during the Life of the Ccjluy que Vie ; and it is
reafonable, fince the Grantee might by Deed have difpofed of the Rent
during the Life of the Cejluy que Vie, that, though by his dying without
having made any fuch Difpofition, in Nicety of Law this Eftate would
have determined ; yet, by the Statute, that Intereft which pafTed from
the Grantor ought to be prefcrved, and fhall go to the Executors or Ad-
miniftrators of the Grantee during the Life of the Ce/iuy que Vie. And
the Statute in this Cafe does not inlarge, but only preferve, the Eftate of
the Grantee. By the Lord Keeper Harcourt, in the Cafe of Rawlinfon
verfus The Duchefs of Montagu Of al\ 4th of Dec. 1 7 1 o, though this
was not the principal Point.

(k) Vide poft, Chaplin verfus Chaplin.

De Term. Pafch^, 1734. z6f;

the Expiration of the three Lives. So, if inflead of
three there had been twenty Lives, all fpending at the
fame Time, all the Candles lighted up at once, it would
have been good; for, in EfFe6l, it is only for one
Life, (vii^.) that which fliall happen to be the Survivor.
For which Reafon, it were very improper to call this
an Eftate-tail, lince at that Rate it would not be liable
to a Forfeiture, or punilhable for Wafte, the contrary
whereof is true. (/)

idly, The Lord Chancellor faid, that though by aAnEftatefor
Leafe, or by a Leafe and Releafe, A might bar the umh^^A
Heirs of his Body, as in fome Refpefls claiming un- and the Heirs
der him, yet he inclined to think A. could not bar Remainckr''
the Remainder over to B. who was in the Nature of a t° ^- ^- ^y
Purchafer, and would be no way fubjeft to the Incum- Leafe' and ^
brances of A. any more than if the Eftate pur autre Vie Re'eafe, may
had been limited to A. for Life, Remainder to B. for of his Body,
Life ; in which Cafe plainly A. could not bar B. efpe- "" j^'^^^/'^s

.,,,,. * ■'[• f. iir under him,

cially by this Conveyance oi Leale and Releaie, which but cannot
never transfers more than may lawfully pafs ; Whereas ^^'/^^' ^^
the Conveying away or Barring the Remainder limited ^arUamen.
to B. (admitting it to have been a good Remainder) is
doing a Wrong to B. and depriving him of an Eftate,
which was before lawfully vefted in him. Nay, indeed,
it feemed to him, as if no A61 which A. could do,
would be capable of barring this Limitation over to B.
in Regard there could be no common Recovery fufFered
thereof, it being only an Eftate for Lives; and his
Lordlhip faid, that this (as he remembered) was de-
termined in the Cafe of {m) Sir Hardolph Wafteneys

' (I) 6 Co. 37. 2 Rol. Abr. 826. i Inft. 54.

(m) Wafteneys verfus Chappel. Decreed by the Lord Keeper Hanourl,
2d 0^ March, 17 12, and affirmed afterwards in the Houfe of Lords.

Vol. III. Yyy in

l66 De Term. Pafch^, 1734.

in the Hoiife of Lords, upon an Appeal from this
Court. [E]

Howeverthe But Hotwithftanding all this, yet, it appearing that
Statute of ^j^g j^- j^f ^i^ jj^g Plaintiff, and of thofe under whom

Limitations i • j i i i r i

being plead- he claimed, had accrued fo long lince as the Year 1705,
RiihJacf u- "0^ "^^"^ ^h'^^y Years ago, during all which Time the
ed above 30 Defendant's

Years fince,

tho' the Cafe may be fo circumftanced, as that the PlaimifF, notwithftanding he could not
bring an Ejeftment, might bring a Bill in Equity, yet the Court will not aflift a ftale De-
mand agsinft a long and quiet Pofleflion.

[E] The following Cafe has been taken from the Regifter's Book :
The late Earl of Arlington devifed, int^ al\ a Leafehold Eftate, being
the Manor of ^ottenhall^ alias 'Tottenham-Court^ in Middlefex^ and held
for three Lives of the Cathedral Church of St. Paul's, London, to the
Duchefs of Grafton, his only IflTue, for Life, Remainder to the Duke
of Grafton for Life, Remainder to the firft and every other Son of
the Duke by the Duchefs in Tail Male, Remainder to the Heirs Fe-
male of the Duke by the Duchefs in Tail, Remainder to the right
Heirs of the Duchefs. Afterwards, in 1686, the faid Leafe was re-
newed agreeably to the above Limitations. The Duke of Grafton
died, and his Son, the prefent Duke, brought his Bill, praying, that
the Leafehold PremifTes (fome of the Lives whereby the fame were held,
being dropt) might be renewed, and fettled on the Duchefs for Life, Re-
mainder to the Plaintiff the Duke, and his Heirs; for that otherwife ic
would tend to a Perpetuity. The Lord Eufton (the Duke's eldeft Son) was
then an Infant of feven Years of Age; and the Cauie being heard the 2d
of Aug. 1722, the Court conceived that they could not do it, till a Fine
fur concefferunt had been levied by the Plaintiff", the Duke of Grafton.,
and the Defendants, Sir Thomas Hanmer, (who had married the Duchefs)
and the Duchefs of Grafton ; and the Matter was referred to a Mafter j
and it coming on afterwards, 21ft of December, 1722, on the Report,
by which it appeared, that a Fine had been levied, and that the Mafter
had fettled a Leafe and Releafe, being an Affignment of the Leafe of
1 686 to new Truftees, thereupon the Lord Chancellor Macclesfield order-
ed, that the faid Leafe and Releafe ihould be executed, and that the new
Leafe fhould be to thefe new Truftees, in Truft for the Duchefs for Life,
Remainder to the Plaintiff the Duke, and his Heirs, during the Lives
in the Leafe. Duke of Grafton verfus Hanmer. And indeed it feems rea-
fonable, that the firft Tenant in Tail (improperly fo called) fhould be
allowed to bar the Limications over ; for though the original Eftate be
only for three Lives, yet, it being the Interelt of both Landlord and
Tenant, that the Leafes iliould be renewed, and it being the Doflrine
of the Court of Chancery, that all fuch new Leafes are fubjed to the old
Trufts, the Eftate might by this Means continue for ever, without any
PofTibility of being barred. See alfo Baker verfus Baily, 2 Vern. 225.
I

De Term. Pafch^, 1734. 267

Defendant's Poffeffion had been iinmolefted, and the
Statute of Limitations being pleaded, (though it was
urged, that the Plaintiff had not the Leafe in his Pof-
fedion, and that the Defendant in his Plea had fee
forth, that the Leafe had been renewed ; and though
it was moreover infifted, that however the Plaintiff
might be difabled from bringing an Ejeftment, he might
yet bring a Bill in Equity ;) the Lord Chancellor de-
clared, he would grant no Relief in the Cafe of fo
ftale a Demand, and therefore allowed the Plea,

Bemck verfus Whitfield. ^^^^^^

[See a 'Branch of this Cauje, Vol. 1. 240.]

Lord Chati'
cellorT dXhot.

"Was Tenant for Life, Remainder to B. in Tail, ^- Tenant
• as to one Moiety, Remainder as to the other mainder to
Moiety to C. an Infant in Tail, Remainder over. ^- '" '^^'''

, •' . , , ,^ , , as to one

There was Timber upon the Premiiies greatly decay- Moiety, Re-
ing : "Whereupon B. the Remainder Man, brought a '"^'"'^f '°^-

• ii . ^ , . , , . " . , an Infant in

Bill, praying, that the Timber that was decaying might Tail, as to
be cut down, and that the Plaintiff, the Remainder Moi^y^Re-
Man in Tail, together with the other Remainder Man, mainder
the Infant, might have the Money arifing by the Sale J's'Timber on
of this Timber. On the other Hand, the Tenant for thePremiffes
Life infifted to have fome Share of this Money. clying^; b.

the Remain-
der Man, brings a Bill, praying, that the decaying Timber might be cut down, fold, and the
Money divided betwixt him and the Infant ; and the Tenant for Life infifts to have Part of
the Money ; Tenant for Life muft have fufficient left for Repairs, ^c. and an Allowance for
all Damage done to him on the Ground ; but to have no Allowance for the Timber, which,
when fevered by Accident, or by a TrcfpafTer, belongs to the firft Owner of the Inheritance.
Decaying Timber, if for Ornament or Safety, not to be cut down. Alfo, where an Infant
is interefted in the Inheritance, no Timber to be cut down, but by the Approbation of the
Mafter j and the Infant's Moiety of the Money to be put out for his Benefit,

Lord

268 De Term, Pa^chde, 1734.

Lord Chancellor : The Timber, while ftanding, is Part
of the Inheritance [F] ; but whenever it is fevered,
either by the A61 of God, as by Tempeft, or by a
Trefpafler and by Wrong, it belongs to him who has
the firft Eitate of Inheritance, whether in Fee, or in
Tail, who mc.y bring Trover for it ; and this was fo
decreed upon Occafion of the great Windfall of Timber
,on the Cavendifl} Efl:ate.

2^/y, As to the Tenant for Life, he ought not to
have any Share of the Money ariiing by the Sale of
this Timber ; but fince he has a Right to what may be
fufficient for Repairs and Bootes, Care muft be taken
to leave enough upon the Eftate for that Purpofe ; and
whatever Damage is done to the Tenant for Life on
the PremifTes by him held for Life, the fame ought to
be made good to him.

T^dly, With Regard to the Timber plainly decaying,
it is for the Benefit of the Perfons intitled to the Inhe-
ritance, that it fhould be cut down, otherwife it would
become of no Value ; but this fhall be done with the
Approbation of the Mafter ; and Trees, though decay-
ing, if for the Defence and Shelter of the Houfe, or
for Ornament, fhall not be cut down. B. that is the
Tenant in Tail (and of Age) of one Moiety, is to have
a Moiety of the clear Money fubje61: to iuch Deduc-
tions as aforefaid ; the other Moiety belonging to the
1 Infant

[F] A. Tenant for Years, Remainder to B. for Life, Remainder to C.
in Fee ; A. is doing Wafte ; B. tho' he cannot bring wafte, as not having
the Inheritance, yet he is intitled to an Injunftion. See i Roll. Ahr. Rof-
z:fell's Cafe, 577. But if the Wafte be of a trivial Nature, and a for-
tiori, it it be meliorating Wafte, as by building on the PremifTes, (fee
I ^^fi- 53) the Court will not injoini nor if the Reverfioner or Remain-
der Man in Fee be not made a Party, who poflibly may approve of the
Wafte. By the Lord King, Mollineux verfus Powell, Pafih^, 1730.

De Term. Pafch^, 1734. 269

Infant muft be put out, for the Benefit of the Infant,
on Government or real Securities, to be approved of
by the Mafter.

Elizabeth Sidney, - Plaintiff. ^'^^^"^^

7 he Hommable Joceljn }Defe„danr. '
Sidney, hjq; 3

On an appeal from a Decree at the Rolls.

Lord Chan-
ellorTAho^

RS. Sidney t the Plaintiff, brought her Bill again ft Where thd
the Defendant her Hufband, to have a fpecifick S^'ft/^JfoJ
Performance of her Marriage Articles, dated the 1 7 th ^ '"pecifick
oi OBober i7i<5, whereby the Defendant, the Huf- o"i,cr' Mar-
band, covenanted, that within eight Months after the '''^2^ Ani-
VUmt'iS' Elizabeth ftiould come to Age, he would con- that* he mny
vey his Eftate in Glamor gdnflnre to Truilees, to the ^'■jjj'l '"'f '^
Uie of himtelf lor Life, Remainder to the Ufe of Lands onher
Truftees to fupport contins;ent Remainders, Remainder ^"'' '^^'".J".'"-

rr. .,-^, T r • ture; it is

to the Ufe of his Wife for her Life for her Jointure, no Bar toher
Remainder to their Sons fucceflively in Tail Male, Re- ^"^^^l^^^
mainder to the Daughters in Tail, Remainder to him- doped with
felf in Fee. Alfo the Plaintiff Eli^<ibeth, the Wife, with much^iefru
the Confent of her Guardians, covenanted, that flie ti"^ ^^ not
fhould, within eight Months after Ihe lliould come to band put"in
Age, convey her Eftate in the fame County, being J''"^'" 'he
about 350/. per Annum, (but well ftocked with Tim-
ber) to the Ufe and Intent, that there ftiould be paid
thereout to the Plaintiff Eli^iahetb 100/. per Annum, for
her feparate Uie during the Coverture, 100/. per
Annum to her Mother, and 50 /. per Annum to the
Plainrift 's Sifter, till flie fhould come to Age ; and then
file to have 1000/; and that her Eftate thus charged
fhould be conveyed to the Ufe of the Defendant for
Vol. III. 2 z z Life,

270 De Term. Pafch^, 1754.

Life, Remainder to the Ufe of the Phiinriff, his Wife,
for Life, Remainder to the Ufe of the firlt, i!fc. Son in
Tail Male, Remainder to the Daughters in Tail, Re-
mainder to her right Heirs. The Timber upon her
Eftate to be applied to pay off a Mortgage of 5000 /.
on the Defendant the Huftand's Ettate, and the Sur-
plus of the Money arifing by the Sale of the Timber,
to go to raife Portions for younger Children. So that
the Bill was, to compel the Defendant the Hufband to
perform his Part of the Articles, and that he might ac-
count for the Timber he had cut down from off the
Wife's Eftate.

The Defendant by his Anfwer fet forth, that the
Plaintiff the Wife had withdrawn herjelf from her Huf-
band ; that /Jje had lived feparately^ and very much mif-
behaved herfelf.

The Proofs were very fl:rong, that the Wife, the
Plaintiff!, had had criminal Converfation with another
Man ; but in the Depoficions there being fome Evidence
that the Hufband was alio guilty of the like Offence,
fo that the Wife might recriminate; the Matter of the
Rolls decreed a Performance of the Articles, from
which Decree the Defendant now appealed to the Lord
Chancellor.

And it was infifted on Behalf of the Hufband, that,
confidering the Incumbrances and Annuities on the
Wife's Eftate, the Hufband was a very little Gainer
therefrom ; that the Wife in a Court of Equity ap-
peared with but an ill Grace, as endeavouring to com-
pel a Performance of her Hufband's Agreement, when
Ihe herfelf had broken her own Marriage Contrail in
the moft facred and tender Part of it ; that with Re-
gard to Articles, if the Court finds any Inconvenience
will refult from compelling a Performance thereof,
I they

De Term. Pafclm, 1754. Z71

they will not decree that thefe ihoulJ be fpeclfically
executed, but leave the Party to his Remedy at Law ;
that in the prefent Cafe, the decreeing an Execution
of thefe Articles might occafion a Dilinherifon of a
lawful Heir, and fettle the Eftate upon fuch Iffue as,
though born in Wedlock, might yet really and in Fait
be illegitimate. For fuppofe that in this Cafe, after the
Separation, there had been a Son born, would this
Court have decreed a Settlement to have been made
whereby fuch Son Ihould have been intltled ? And yet
this would plainly have been the Confequence, fince
fuch Son being born in Wedlock, mull have taken by
Virtue of the Settlement ; that indeed where a Separa-
tion has been in Purfuance of a Divorce, the Courts at
Law will prefume that the Hufband and Wife have
lived feparately in Obedience to the Sentence : But in
the Cafe of a voluntary Separation only, the Hufband's
Accefs to the Wife (hall be taken for granted, and a
Child born (hall be conftrued Legitimate, and no Evi-
dence admitted to the contrary ; according to the Di-
llinftion in i Salk. 12^. at the fame Time it may be
notorious to every one that fuch Child was not be-
gotten by the Hufband ; that in the principal Cafe it
was in Proof, that the Plaintiff did elope from the De-
fendant her Hufband, and went away with one James
Jenkins, to a Cottage about three Miles from where
her Hufband lived, fince which there had been no Pre-
tence of any Reconciliation, fo that this was a Bar of
Dower, i Inft. 32. i Roll. Abr. 680. And if in a
Court of Law, the Wife behaving in this Manner,
would not be helped to her Dower, which is fuppofed
to be her Bread and Subfiftence, why fhould Equity
aflift fuch a Woman fo as to caufe any Articles to be
performed in her Favour, which is a Matter always
left to the Difcretion of the Court ? That the Wife
in the prefent Cafe had her Remedy at Law upon an
A6lion of Covenant to be brought in the Name of the

Truftees :

272. De Term. Pafchce, 1734.

Truftees ; But it might well be doubted, whether he
had any Remedy againft the Wife, in Regard at the
Time of the Marriage fhe was an Infant, and [G] her
Covenant with the Triillees would hardly bind her
at Law.

It was admitted, had there been an a£l:ual Jointure
made upon the Wife, fo as to have vefted a fixed legal
Eftate in her, that could not have been forfeited bv
the Wife's Elopement ; but where the Matter relied
only upon Articles, and the Wife had no Remedy but
by bringing a Bill for the fpecifick Performance there-
of; here a Court of Equity might with the greateft
Reafon and Juftice refufe to lend a helping Hand ;
might well deny that Ailiflance which in a Cafe of
common Articles, and in a fair and honefl: Caufe, they
are ready to afford the Parties : That it had indeed
been («) faid, that Adultery is no Bar of Dower ; and
probably it is not, where the Hufband and Wife con-
tinue to cohabit ; but no Books fay, that where the
Wife elopes with another Man in Adultery, (as in
the prefent Cafe) this is not a Bar ot Dower. And
furely, if it be a Bar to a Recovery at Law, it is at
leail equally reafonable it fhould be fo, with Refpe6t
to any Aid fought in Equity upon Articles for the
Wife's Proviiion.
2

Further : It was faid to be material ; that in fuch

Cafe of Elopement of the Wife, nothing could reiWe

the Wife to her Dower, but the Reconciliation of the

Hufband ; that it was not lufficient, fo as to intitle her

2 .to

[G] And yet it feems, that where a Feme Infant feifed in Fee cove-
nants with the Confent of her Guardians, in ConfiJcration of a Settle-
ment, to convey her Inheritance to her Hufband ; if this be done in
Confideration of a competent Settlement, Equity will execute the Agree-
ment, though no Adion would lie at Law to recover Damages. See
Vol. 2. 244. Cannal verfus Buckle.

(«) See Noy, loS.

De Term. Pafcba^, 1754. 275

to her Dower, that (lie could recriminate, or fay, her
Hufband was guilty of the like Offence, for nothing
could avail her as to this, but the (o) Forgivenefs of
the injured Hufband. Very obfervable alfo is the
Difference which the Law makes, where this Offence
of Adultery is committed by the Hufband, and where
by the Wife. In the former Cafe, where the Hufband
goes away from the Wife, and lives with another Wo-
man in Adultery, this is no Bar to the Hufband's be-
ing Tenant by the Gurtefy ; but on the Wife's leaving
her Hufband, and eloping with an Adulterer, llie
thereby forfeits her Dower. The Reafon of which
may be, for that the Confequence of fuch Crime in
the Wife is worfe to the Hufband's Family, by making
the Children which ihe may have by the Adulterer,
inheritable to the Hufband's Eflate, to the Prejudice of ■ ' ,

the next Heir : Whereas the Hufband's Children be-
gotten on another Woman are incapable of bringing
that Miichief on a Family, or injuring the next legi-
timate Heir ; that all this was greatly aggravated in

the principal Cafe, by Reafon of the near Alliance ^.^;7^y«f^ ^^//,y,,,..-...e
which Mr. Sidney had to a Peerage, to an antient, lU a^/u^ /k<r/ii^:> '(^'^'^""^ f'^f
luftrious Peerage, attended with a fuitable Eftate, beingf ''"^o'T;"'*^'^^''^'
only Brother and Prefumptive Heir to the Earl of
Leicefler^ at prefent a Bachelor ; fo that, as it was
apprehended, the Matter of Recrimination, though the
principal Ground of his Honour's Decree, was not fuf-
ficient to warrant the fame.

OhjeEi. But it has been objefled below, that the
Hufband has not by his Anlwer put this Matter
of Adultery in IfTue, it being only faid, that the
Wife had withdrawn herfelf from her Hufband,

Vol. III. 4 A lived

(0) See Dyer 106. Lady Powes's Cafe, where a Reconciliation by the
Husband, after the Wife's going away with the Adulterer, is fpecially
pleaded, and the Plea allowed.

274 ^^ Term. Pafcha, 1734.

lived feparately, and very much mlfbehaved herfelf.*
All which {he might do, and not be guilty of Adultery,
fince there may be feveral A61s of Mifbehaviour in a
Wife befides that of Adultery.

i?^j(/». The Wife could not but be fenfible of what
Nature her Mifbehaviour was ; this muft be belt
known to herfelf: And it was the Kindnefs and
Tendernefs which the Hufband had for the Charafler
of his Wife, not to fuffer thefe great Stains upon her
Reputation to be regiltred upon Record, to the perpe-
tual Infamy of herfelf and Family ; and therefore be-
fore he fhould go fo far, the Hufband might well hope
his Wife would repent of her Fault, and put a Stop to
this fo unfeafonable a Suit ; and it is a fad Excufe
made on Behalf of the Wife, to fay the Hufband, who
had jufl Reafon to charge her in the plaineft and moft
diitinft Terms with this infamous Crime of Adultery,
has in Tendernefs to her forborn to do fo, and now
fhe will take Advantage of it ; thus with equal Arc
and Ingratitude turning the Kindnefs that has been
Ihewn her againfl him who (hewed it.

id Oh]&[i. But fuppofing this Crime to have been
ever fo lufficiently fet forth, yet this Court cannot
judge of Adultery, or in any Sort punifh it, which is
proper only for the Spiritual Court.

i^^jp. Where Things of this Nature are incidentally
mixed with others, the Courts of Law (and much
more of Equity) may take Notice of them : Thus
tlie Courts of Law, where the Wife's Elopement with
the Adulterer is pleaded in Bar of Dower, muft try
fuch Plea : And as they may do it in that Cafe, what
fliould hinder this Court from doin^ the like in the
prefent ? So the Trial of a Marriage, which is as
I much

De Term. Pafchce, 1734. 279

much of a Spiritual Cognifance as any Thing can be,
is determinable at Law, where it comes incidentally
in QLieftion.

3^ Oh]eB. If the Defendant infifts upon this, that
the Plaintiff, the Wife, ought not to have Aid upon
thefe Articles ; then on the other Hand he himfelf
is not to expeft any Aid or Affiftance in Refpe£t
thereof.

Re\p. All this may be admitted ; and Mr. Sidney^ the
Hufband, will be in a better Condition without the
Articles, than with them ; thus independent on the
Articles, he will be intitled to the Rents and Profits,
and will have a Power to fell all the Timber from off
his Wife's Eftate, to his own Ufe.

Laflly, It was obferved, that the Hufband was not
Plaintiff in this Caufe, but the Wife, and where fhe
has thought fit to apply in a Caufe of Turpitude ; As
a Court of Equity has frequently been refembled to
a Fountain diftributing its Relief through pure and
clear Streams, fo it was hoped, that this being a
Caufe of a contrary Nature, and confiding of fe-
veral Proofs of Turpitude, therefore the Court would
not afford the Plaintiff the leaft Favour or Affilfiance
wl^atever.

Lord Chancellor : What has been afferted of a Child ^" ^^A-^^^^
begotten and born during the Time or the voluntary « Men/a &
Separation of the Hufband and Wife, (vi^.) that no^rp^Z"''
Evidence fhall be admitted to prove the Illegitimacy of I'vefeparate-
fuch Child, is now held to be otherwife. For if a ^^/"Lf",

Child ; this
is a Baflard, for the Court will intend Obedience has been paid to the Sentence during this
Time. But if in the Cafe of a voluntary Separation a Child is born j this is Legitimate,
Seaa where the Jury find the Hufband has had no Accefs to his Wife. ^. /^^,„9 ^^r /^,3,«? f. '/<g..o,»^^

Z7<5 De Term. Pajch^e, 1734.

Jury find the Husband had no Accefs, fuch Child will

be a Baftard, according to the Determination in the

If the Party Cafe of Pendrcl verfus Pendrcl [H] As in the prefent

Adverfary Cafe, at the Hearing of the Caufe the Defendant has

Thina'^cn ^"^^'^^^^ "P<^" what might hare been very penal to the

minaf, it PlaiiitlfF his Wife, Cw^.) the Forfeiture of her Dower,

ftewn wit'h ^^^^ Crime for which {he might have incurred fuch a

great Plain- Penalty, ought to be plainly laid to her Charge, fpcci-

Certaiiity. ^^^ ^"^ P'^'^ ^^ llTue, that Ihe may know what to reft

her Defence upon ; Whereas here her Accufation is

only general and uncertain, amounting to little elfe,

than that (he has withdrawn herfelf from her Husband,

lived jeparately from him, and very much misbehaved

herfelf: Nothing of which implies, that the Plaintiff

has been guilty of Adultery, much lefs that fhe has

eloped from him, and gone away with an Adulterer,

which alone would bar her of her Dower, fuppofing

Articles to jj^jg ^ygj.g puj-gly g Queftion of Dower. But the Arti-

fettle Lands . » J ^^

in Join- cles being, that the Hufband (hall fettle fuch and fuch
Nature of in ^auds in Certainty on his Wife, the Plaintiff, for her
aauai Join- Jointurc, this is pretty much in the Nature of an ac-
irnot^or- f'-^^l and vefted Joiqture ; in Regard what is covenanted
felted by an for a good Conlidcration to be done, is conlidered in
Hke'^Dowe'r. Equity in moft Refpe£l:s as done ; confequently this is
a Jointure, and not forfeitable either by Adultery or
WhyaHuf-an Elopement. The Reafon of the Difference why a
not forfeit ^Vifc in Cafc of an Elopement with an Adulterer, for-
his Tenancy fgjjg her Dowcr, and yet the Hufband leaving his Wife,

bv the Cur- "^ o '

tefy on lea- and living with another Woman, does not forfeit his
ISH^inrfn Tenancy by the Curtefy, is, becaufe the Statute of
Aiukexylzi Weflm. 2. cap.^^. does by exprefs Words, under thefe

a Wife for- r^' ii

feits her Circumitances,

Dower by

Elopement, |-j^-j j^eard before the Lord Talbot, February 5, 1733. where the
Hufband and Wife by Confent lived leparately, and a Child being
born, an IITue was direded to try whether the Child was a Baftard, and
ic was found a Baftard. And lb indeed (however it happened to be
overlooked by the Defendant's Counfd) it is faid at the Bottom of the
Cafe cited from Salkeld ; wherefore this Point is now fettled for Law.

Cfc.

De Term. PafchaCy 1734. Z77

■ — — III M . — I. I ■» .1 I ^-^— ^B^^^^l^

Circumftances, create a Forfeiture of Dower ; but
there is no A<9: inflifting, in the other Cafe, the For-
feiture of a Tenancy by the Curtefy.

As to the Recrimination appearing in the Proofs,
this does not feem to me fo much to affe£i: the Cafe :
Indeed, with Regard to the Evidence of the Crime in
the Wife, there feems to be fufficient to convince any
third Perfon, that Ihe is not innocent; but the fame
not being put in Iffue in the Caufe, I cannot judge of
it. Affirm the Decree, and let the Hulband perform
his Marriage Articles, and account for the Timber
which he has cut on the Wife's Eftate contrary to the
Articles. The Cofts to go out of the Eftate.

Johnfon verfus OiUhy &" aV. ^^^^g%.

^ J ^ ^ Lord Chan-

cetlorTalhat.

HE Bill was for a fpecifick Performance of an An Attorney
Agreement, on this Cafe: Margaret ^ineo ^^'^^^^^f Xk^^
the Plaintiff Robert 7ohnfon having fome Difterences as Client the
to four Freehold Houfes in Silver Street, London ; upon ^.l^.cc^to
compromifing thofe Differences, it was agreed between pay 500/. to
them, that the faid Margaret ^iineo and Robert John- thfs being *
Jon ftiould join in a Fine and Recovery, which fhould ^one by the
be, as to two of the Houfes, to the Uie of Margaret the Client,
Quineo and her Heirs ; and as to the other two Houfes, theAttorney

'^^""^ ' IS not lisDic

to the Ufe of the Plaintiff, Robert Johnfon, and his but only the
Heirs, which Fine and Recovery were accordingly le-^['^"f'^j^"
i^ied and fuffered. Attorney

had no Au-
thority from his Clieni to majfe this Engagement

After this, Margaret ^ineo pretended flis was then

a Feme Covert and married to the Defendant Ogilbyi

Vol. III. 4 B where^

Z78 De Term. Pafch^y 1734.

whereupon Robert Johnfon brought a Bill againft Ogilby
and his Wife, to difcover whether fhe was married,
when {he levied the Fine, and fuffered the Recovery,
and to be relieved againft the Fraud. To which Bill
the Defendants, Ogilby and his Wife, put in their An-
fwer, infifting on her being then a Feme Covert, and
that fhe was not bound by fuch Fine and Recovery,
Thereupon the Plaintiff Johnfon preferred a Bill of In*
diftment againfl the Defendant Margaret for a Cheat,
and for the Fraud in levying a Fine, and fuffering a
Recovery, at the Court of Common Pleas, as a Feme
Sole, when at the fame Time flie was under Cover-
ture.

The Indi£lment being found, upon Not guilty
pleaded, was brought to a Trial ; but juft before the
. Trial was to have come on, the Parties came to an
Agreement, that the Plaintiff fhould aflign over his
Right to the PremifTes, and the Defendant pay the
Plaintiff 580/. and one Mr. Heaton, who was the De-
fendant's Attorney on this Indi£lment alone figned the
Agreement for, and on the Behalf of his Clients, Ogilby
and his Wife; Johnfon alfo figned the Agreement, which
was left in the Hands of one Mr. Callard, a third Per-
fon, and the Defendant Margaret was hereupon acquit-
ted for want of Profecution.

Afterwards, the Money not being paid, the Plaintiff
Johnfon brought his Bill againft Ogilby and his Wife,
and Mr. Heaton the Attorney ; and it was infifted, that
Heatony by figning this Agreement, was become perfo-
nally liable, and had taken upon himfelf, as a Surety
for his Client, to pay the Money ; that as an Attor-
ney could (it muft be admitted) undertake for his
Client, fo here he had done it.

lord

De Term. Pafcha, 1754. 279

Lord chancellor : The Difference is, where the Party
thus undertaking for, and on the Behalf of his Client,
has an Authority fo to do, and where he has not. If
fuch Undertaker has no Authority, then it is a Fraud,
and the Undertaker ought himfelf to be liable ; but
where there is fuch an Authority given, (as here there
was to the Attorney) this is only afting for another,
like the Cafe of a Fa£lor or Broker ailing for their Brokers or
Principals, who were never held to be liable in their f^'^°[';JI^^r'*
own Capacities ; in which his Lordfhip being very clear. Principals,
the Bill as to this Point was difmiffed as,a'm\\. Heaton^hlwl^n"^

the Attorney with Cofts. Capacities.

Then the Lord Chancellor ftarted another Point, a Bin in E-
(vi^.) that this was a criminal ProfecutioUj and the ?oMmpeithe
Agreement being to ftifle a criminal Profecution, was Performance

1 r I 1 • i-> • of an Agree-

thererore not to be executed in Equity. mem to pay

Money in
Confideration of having ftlfled a Profecution for Felony ; /ecus, if to flop a Profecution at
Law for a Fraud,

To which I anfwered, that it was true, in the Cafe
of a Profecution for Felony, an Agreement to ftifle
fuch a Profecution was not lawful ; but where the In-
diftment was for a Fraud, and the Party wronged by
the Fraud came to an Agreement to be fatisfied for
fuch Injury, (as in Confcience he ought to be) this
was lawful. Matters of Fraud being cognizable and
relievable as well in Equity (p) as at Law : Wherefore
this Objeftion was no further inlifted on.

ip) See Vol. 2. 156, 220.

Head

zSo De Term. Pafcha, 1734.

Cafe 69. Head verfus Ezerton.

Lord Chan-
teliorTzlbot,

Money.

Where there ^-|-A PI g giu y^^gg jq foreclofc the Defendant's Equity
quentMort- -■- of Redemption to the mortgaged PremiiTes, and
gagee vvitii- (^ compel the Defendant to difcover the Title Deeds

out Notice, 1., 1 TV ir-Jm-ir-.i

ivho has Pof- relating thereto, and to dehver up the laid iitle Deeds
ThkDeeds^^o the Plaintiff, infifting, that they belonged to him,
the firft ' as Owner of the Land. For which Purpofe the Bill
filuTo?^ fet forth, that one Spencer made a Mortgage of the
compel a Lauds to the Plaintiff, and that the Plaintiff having a
the Wntings great Confidence in the faid Spencer, and the Mortgage
from him, being exccutcd in Londorty and Spencer pretending his
ill'g him ^hr Title Deeds were in the Country, the Plaintiff lent his
Monl^^^ Mortgage Money to Spencer, taking Spencers Word, that
he would deliver to him the Title Deeds ; that after-
wards the faid Spencer borrowed 20C0 /. of the Defen-
dant, Doftor Egerton, on a Mortgage of the fame
Lands, at the fame Time producing and delivering
to the Defendant Egerton all his Title Deeds, which
were perufed by the Defendant Egertons Counfel, and
thereupon the I'itle approved.

The Plaintiff bringing fuch Bill as above, the De-
fendant pleaded to that Part of the Bill, which prayed
a Difcovery and Delivery up of the Title Deeds ; and
by his Plea inliffed, that Spencer made a Mortgage to
him of the fame Lands, and that the Title Deeds were
delivered to him by the faid Spencer, in Order to fup-
port his Title to the Mortgage ; that he had no Notice
of the prior Mortgage to the Plaintiff, and being thus
a Mortgagee without Notice, a Court of Equity ought
not to aflift the Plaintiff, and take the Title Deeds from
the Defendant, without ordering him to be paid his
Mortgage Money.

4 Lord

De Term. Pafcha, 1734. 28 r

Lord Chancellor : It is hard enough upon the Defen- The firft '
dant, that he has lent his Money upon Lands fubje£l pe^S^e
to a prior Mortgage ; but he having had no Notice Mortgagor
thereof, I will not add to his Hardftiip by taking away Title Deed^
from him the Title Deeds, unlefs the Plaintiff will pay ^^ '^^
him his Money, efpecially in a Cafe where the Plain- (hewing a
tiff has himfelf been in fome Meafure acceffary in ^*"" ^"'^'
drawing in the Defendant to lend his Money, by per- the Premiflbs
mitting Spencer, the Mortgagor, to keep the Title Deeds Mo«gaTee^
in his Poffefllon, the Delivery of which the Plaintiffto whomhe
ought to have inlifted on, when he took the Mort- De'edT;" She

gagg, firft Mort-

° ° gagee is ac-

ceffary to the Drawing in of the fecond.

Note alfo; It was faid in this Cafe by the Lord fnti^ePiead-
Chancellor, that in the Defendant's Pleading of a chafe or "^
Mortgage or Purchafe he ought to {hew, that the^^'g^p'
Vendor or Mortgagor being, or pretending to be, feifed dant muft
in Fee of the Premiffes, did make fuch Conveyance or fj^seilgr^oj.
Mortgage, isfc. otherwife the Perfon undertaking to fell Mortgagor
or mortgage may be a mere Stranger, and have no J^^j'^j j/J^'
Intereft in the Premiffes, though he takes upon him to feifed in Fee.
fell or mortgage them.

Vol. III. 4 G D E

28z

D E

Term. S. Trinitatis,

17 34

&fe7o. Annejley verfus AJImrft.

Lord Chan-
«//»r Talbot.

A Truft E- \ Truft Eftate was decreed to be fold for the Pay-

creed to be x\. m^Dt of Dcbts and Lcgacies, and to be fold to
pi'^menfof '^^ ^^^ Purchafcr, before the Mafter. The Plaintiff,
Debts and Mr. AnneJlcy, contra£led for the Purchafe of the Pre-
Legacies, j^iffgs and entered into Articles with the Truftees for

and to be fold _ . i r

to the bed that Purpofe. It did not appear, that the Purchafe was
j^^iidlsto^^ unfair one; but this Method feemed to have been
buy the E- taken to avoid the Charge and Trouble of Bidding
Truft°es, ^ before the Mafter, and of the Matter's Report, and of
and brings a gettlnp thls Confirmed. Afterwards the Truftees fcru-

Bill to com- !• • , T^ • 1 T 1

pel them to phng to couvey without a Decree to indemnity them,
ComrTa'-'^ Mr. Annejley brought a Bill againft the Truftees to com-
the Truftees pel them to couvey, and for their Indemnity ; and the
w tidofe '^^"^^^^5 by their Anfvver difdofed this Matter, and
this Matter; fubmitted to the Court, being willing, if indemnified,
win mX'no ^^ convey the Premifles to the Plaintiff" Annejley, pur-
new Decree, fuaut to the Coutraft.

but will leave

the former Decree to be purfued.

I Cur':

De Term. S. Trinitatis, 1754. 2.83

Cur : This is all going out of the Way. Here is a
Decree dire£ling how and in what Manner this Truft
Eftate fiiould be fold, (vi^.) to the bell: Purchafer, and
before the Matter; which Decree muft be purlued ; for
I cannot make one Decree to contradi6l tlie other.
The Plaintiff Mr. Annejley^ if he has a Mind to this
Eftate, muft go before the Matter, and gee himielf re-
ported the beft Purchafer; and though nothing unfair
appears, yet there is ever Occalion to lufpe£]:, when
People are going out of the Way.

Cook verfus Arnham, c^*"^?!-

Lord Chati-
f^'/Zer Talbot,

On an y^p^eal from a Decree at the Rolls.

N E feifed in Fee of fome Copyhold Lands, de- If a Copy-
vifed the fame to his Grandfon that was his Heir ^^^i^^^^^^l'
at Law, {villi, the Teftator's deceafed eldeft Son's Son j younger
for his Life, Remainder to the firft and every other j,^ s^jj^e^def
Son of the (irandfon in Tail Male, fucceflively, Re- to the ufe of
mainder to the Daughters of his Grandfon in Tail, though by
Remainder to the Teftator's fecond Son in Fee ; and ^''^, '-^'"^

VV ill there

by the fame Will devifed fome other Lands to his faid beotherPro-
fecond Son, and died, without having furrendered the ^'^'°" ;^,^.f^

' - r 11 fortheCliildj

Copyhold Premiftes to the Uie oi his Will. yet fuch Co-

pyholJ being
Part of the Provifion, the Court will make it good, unlefs in a Cafe where the ejdell: Son
and Heir is totally difinherited ; for tlie Father is Judge of what is a proper Provifion for his
Child ; and though the Devife be of a Copyhold to a fecond Son, after the Death of the
eldelt without Ifliie, Equity will fupply the Want of a Surrender.

The Grandfon, the Heir at Law, furrendered the
Copyhold to the Ufe of his Will, and having devifed
ihem to his Mother, and her Heirs, died without IffLie.
The Mother difpofed of the fame Copyhold PremifTes

from

.84 De Term, S. Trinitatis, 1734.

from the fecond Son, and died about fifteen Years af-
ter the Grandfon. Whereupon the fecond Son brought
his Bill in Equity, fuggefting that his Father, who
devifed to him thefe Copyhold Premifles in Remain-
der as aforefaid, intended them as Part of his Provi-
fion ; and that, as Equity would fupply the Want of
a Surrender in fuch Cafe, therefore he prayed, that
the Perfon, to whom his Mother had difpofed of the
fame, might furrender them to the Ufe of him (the
Plaintiff) in Fee.

This Caufe was about a Year fince heard at the
Rolls before Sir Jofeph Jekyll, when it was obje6led,
that by the fame Will there was fome other Provilion
made for the Plaintiff, which was fuflficient for his
Maintenance, and that the Court would not (as was
conceived) fupply the Want of a Surrender of a Copy-
hold, but in a Cafe where that was the only Provifon;
alfo, for that this Devife to the Plaintiff was too re-
mote, it being after an Eltate-tail.

The Matter of the Rolls held clearly as to the firfl
Point, that the Father was the only Judge what was a
proper Provilion for any of his Children ; and that, if
he did not leave his eldeft Son quite deftitute, though
he had given a fufficient Advancement to the fecond
Son, exclufive of the Copyhold, yet as the Copyhold
was intended to be Part of the Provilion for fuch Son,
the Court ought to fupply the Want of a Surrender
in his Favour. But with Regard to the other Objec-
tion, his Honour conceived this was too remote a De-
vife to the Plaintiff to be looked upon as a Prcvifion,
the fame being a Devife to him after the Death of the
Grandfon without IlTue Male or Female, which could
not reafonably be thought a Provifion, as in all Pro-
bability it would not happen, until after the Plaintiff's
2 Death |

De Term. S. Trinitatis, 1754^ 285

Death ; that no Money could be ralfed for him by a
Sale of fo diftant a Remainder : Alfo, for that the Suit
was commenced after fo great a Length of Time fince
the Grandfon's Death. Wherefore his Honour dif-
miffed the Bill.

From this Decree at the Rolls, the Plaintiff, the
fecond Son, appealed to the Lord Chancellor, before
whom the Matter was fully debated by Counfel on
both Sides. And with Refpe£l to the firft Point, his
Lordihip concurred in Opinion with the Maimer of the
Rolls, namely, that it was not material that by this
"Will the Copyhold was not the fole Provifion made for
the fecond Son the Plaintiff, the Father only being the
Judge of what was a proper Advancement for hi;?
Child, according to the Cales of Kettle verlus Torvnfendy
Salk. 187. Burton [a] ver. Floyd, decreed fir ft by Skjohri
Trevor at the Rolls, in Trinity 1712, and affirmed by the
Lord Harcourt, in Michaelmas 1713, and Strudwick verfus
Strudivick, by the Lord Macclesfield, Pajclu 172c. And
it would create the greateft Uncertainty imaginable, if
the Court fhould on thefe Occaiions enter minutely
into the Confideration of the ^antum of the Provifion
given by the Parent : I'hat in all Cafes of this Kind,
what comes from the Parent is looked upon as a Debt:
by Nature, and may be refembled to a Copyhold being
devifed for Payment of Debts, where the Want of a

Vol. III. 4 D Surrender

[A] it appears from the Regifter's Book, that in this Cafe of Burtcil
and Ll(^d, the Bill was brought {inter al') to fupply the Deficiency of a
Surrender left in the Hands of a Cuftomary Tenant, and not prefcnted
at the next Court. The Ufes of the Surrender were, to the Teftator's
eldeft Son Andrew Burton and the Heirs Male of his Body, and for wane
of fuch IlTue, to the ^Vxinu^ Cornelius Burton, the fecond Son, and the
Heirs Male of his Body, Remainder over ; fo that, as in the principal
Cafe, the Plaintiff claimed a Remainder expedtant on an Eftate-tail,
and was alfo, as appears by the Pleadings, otherwife provided for by
the fiid Teflator. The Caufe was heard before his Honour, 3 July
1 7 1 2, who decreed for the Plaintiff, and on the 14th of November 1713*
that Decree was on an Appeal affirmed by the Lord Chancellor,

286 De Term. S. Trinitaris, 1754.

Surrender is ever (iipplled ; that the Cafe might have
been otherwife, had the Heir at Law been totally dif-
inherited.

But with Relation to the other Point, (vi^) whether
Equity lliould fupply the want of a Surrender in this
Cafe of a Copyhold given to the Plaintiff, the fecond
Son, after the Grandfon's Death without IlTue, his Lord-
lliip differed in Opinion from the Mafter of the Rolls ;
for that, taking it for granted (as it muft be) that
Equity will fupply the want of a Surrender in the Cale
of a Devife of a Copyhold to a younger Child, he was
unwilling, he faid, to make any new, unneceflary or
refined Diftinftions, which would be to render the Pro-
feffion of the Law, a Matter (a) of Memory, rather than
of Reafon and Judgment. That fo far was plain : The
Devife of the Copyhold in the prefent Cafe to the
younger Son, though remote, yet might be for his
Benefit and Advancement. Every Limitation allowed
by the Law to be made, is of fome Value, elfe it
would be abfurd to allow it. Suppofe the Father, in
limiting the Devife now in Queftion, had added, that
the fame was intended for the Provifion of the De-
vifee, would it be reafonable for the Perfon who was to
judge of and expound the Will, to fay, it was not for
the Provifion of the Devifee, when the Teftator him-
felf had faid the contrary.

Now, though thefe Words, for his Provifion, are not
exprelfed in the Will, yet they ieem implied ; Et eX'
prejjio eoriira qu^ tacite infunt, nihil operatur. Suppofe
the Devife to the younger Son had been after one Life,
there would then have been no Doubt about fupplying
the want of a Surrender. Suppofe it had been after
two, three, or four Lives, where miUll we have fixed
I our

. [a) See the Lord Ccivper^s, Argument, when he gave Judgment in the
"Cale ot Nei^coimn verfus Barkbam, 2 Vern. 'j'^^.

De Term. S. Trinitatis, 1734. 287

our Bounds ? Suppofe all the Reft of the Teftator's
Ertate had been fettled, fo that he had had no other
Part left at Liberty, but fuch a Remainder after one
or two Lives, or after a Death without Iflue ; and he
had deviled this Remainder or Reverlion, as an Ad-
vancement to his younger Son otherwife unprovided
for, and afterwards this Remainder, remote as it had
been, Ihould fall into PolTeflion, as in the prefent Cafe;
furely the Court would have fupplied the want of a
Surrender : That what feemed to have created a Diffi-
culty in thefe Cafes was, an Unwillingnefs to take
from the Heir an Eftate vefted in him by Afl: of Law :
But if fuch Defeft would be fupplied, where the
whole Eftate of the Copyhold is given away in Poflef-
fton from the eldeft to the youngeft Son, will not
Equity do this a fortiori^ when but Part, when a re-
mote Reverfion only, is difpofed of from the Heir, and
he confequently lefs prejudiced ? Befides, here, on the
Grandfon's dying without liTue, the Plaintiff, the fe-
cond Son, became Heir to the Teftator ; io that no
Heir would be difinherited by fupplying the want of
this Surrender. That as to the Obje6lion of the Length
of Time which had incurred between the Death of the
Grandfon without Iftue, and the bringing of the Bill ;
it had been offered by way of Excufe, that the Plaintiff
had fpent a good deal of Time in inquiring into and
fearching the Court Rolls, in order to find out a Sur- Length of
render to the Ufe of the Will; and though this was Jlfn^ ba/
but a flight Excufe, yet the Length of Time was »» Ejea-

1 r -ir t • 1 ^ • II 1 ment, (hall

not above lourteen Years, which, as it would not bar not bar a
an Eieflment, fo neither could it bar a Bill in Equi- ^''.' '" ^-
ty. (i) [B]

Wherefore

(b) See Vol. i. 270.

[B] On a Demurrer to a Bill to redeem a flale Mortgage, where the
Mortgagee appeared by the Bill to have been in PoflelTion above twenty
Years ; the Court held the Defendant need not plead the Length of
Time, but might demur ; and that no Redemption fhould be allowed
in fuch Cafe, unlefs there was an Excufe by Reafon ot Imprifonment,

Infancy

288 De Term. S. Trimtatis, 1754

Wherefore his Lordfhlp decreed, that the want of a
Surrender of the Copyhold to the Ufe of this Will
ought to be fupplied, and that the Defendant who
claimed the PremilTes under the Mother, (hould, at the
Plaintiff's Charge, furrender them to the Ufe of the
Plaintiff and his Heirs.

Cafe 72. Piddock verfus Bromt iS al\

Lord Chan-
«//flr Talbot.

A good Rule /^ j,;[ g who was made a Defendant in Equity was

at Law, that f # . , . ^ , . • n -A ■

where to a ^"'^ examined as a \\ itnels, Javing pift Exceptions.
Suit there ^^^p, J jj. ^^^^ objcfted to the Reading of his Depoii-

many De- tions, that though there could be no Decree againff
the'^Pkintiff^'^'"^' y^'^ ^^^ Anfwer being falfified in many Parts of
cannot give it, he might be liable to a Profecution for Perjury, and
5j^^^jf""j)J' confequently not fo indifferent with Refpe£l to the
fendanti he Event of the Caufc as a Witnefs fhould be; and that
7aIs a Wit- this Defendant had been very a£l:ive in the Intereft of
nefs for a other Defendants in the Caule.

Co- Defen-
dant ; and fo

kisinEqui- i^Qy^i Chancellor: It is a good Rule at Law, that when

the Plaintiff has made many Perfons Defendants, and

2 the

Infancy, or Coverture, or by having been beyond Sea •, and not by having
abfcondcd, which is an Avoiding or Retarding of Juftice : That there did
not feem to be any certain Time when the Length of Pofleflion of the
Mortgagee (hould bar the Mortgagor's Right of Redemption : But as
twenty Years would bar an Entry or Ejeftment, abftrafting from the
Excules above mentioned, there was the fame Reafon for allowing it to
b.ir a Redemption. And the Demurrer was allowed, Jenner verfus
Tracey, Pafchce 173 1, by the Lord King. The fame Rule was agreed
in the Caic of Belch verfus Harvey, Michaelmas 1736, by the Lord
"Talbot, who likewife declared it to be his Opinion, (though that Cafe
was afterwards compromifed) that whereas this Court had not in general
thought proper to exceed twenty Years where there was no Difuhilily,
in Imitation of the firll: Claufe of the Statute of Limitations ; fo after
the Difability removed, the Time fixed for profecuting, in th.e Provifo,
(which is ten Years) ought in like Manner to be obferved.

ty.

De Term. S. Trinitatis, 1734. 289

the principal Defendant calls one of the Co-Defendants
to be a Witnefs ; if the Plaintiff cannot give fome {c)
material Evidence againfl: him, he is allowed to be a
good Witnefs, elfe it would be In the Power of the
Plaintiff to take off all the Defendants Witneffes, by
naming them Defendants in the Aftion ; and in the
prefent Cafe I do not fee how the Plaintiff has any
Equity againft this Defendant. Therefore let his De-
pofitions be read.

Secondly. It was declared by the Lord Chancellor, ^^^'^"^ °r

1 • 1 ■» T 1 • ' Mortgage is,

that upon producing a Bond or Mortgage, this prima pimd fndc,
facie, is a good Evidence of a Debt: But that wherever j 2°"^ ^'"'

-in- r 1- II* dence of a

there are manifelt Signs of Fraud m the Obligee, (^c. Debt; but
in fuch Cafe he ought to be put to the Proof of aftual p^^^j \
Payment , and though he may happen thereby to lofe pors, the
fome Part of the Money really due to him, for want ouahf^t'o
of being able to make fufficient Proof; this is but aP"^"^'^ ^"^"^^
juft Punifhment of him for the Fraud which he plainly '^^'"^" '
appears to have been guilty of, and will be a proper
Uifcouragement to others from committing the like.

Thirdly. An Account being direfled, and that all J^^ ^efen-
Parties Ihould be examined on Interrogatories, and it weak Man,
appearing that the Plaintiff who brought this Bill to be ^"^/° i"= <^''-

f r O ^ _ _ I'll 1 anuned on

relieved againlt a Security into which he was drawn interrogato-
without any valuable Confideration, was a weak Man, S^fter^was
and eafy to be prevailed upon to fay and admit in his ordered to
Examination any Thing that was untrue, how much J^gf^nS's
foever to his Prejudice : It was therefore prayed, that Examina-
the Court would fo order it, as that no fuch Advantage ftiou'ijm,-^
Ihould be taken of thefe Circumftances. ).^ariiv admit

fcmetliing a-
gainii: liim -

Whereupon the Court direded, that In Cafe the |J^^J Jj'^j ^^'^
Defendant exhibited Interrogatories againlt the Plaintiff",
Vol. III. 4 E ' the

zpo De Term, S. Trinitatis, 1734.

the Matter lliould take Care to examine the Plaintiff
in Perion, and thereby fee, that no Advantage fliould
be taken of his Weaknefs.

Cafe n- Cole verfus Gibbons bJ" al\ & Martin
S^So't. verfus Cole if al\

On a Rehearing from a Decree of the Lord Chan-
cellor Kins;.

A having /In DREW Mackean, of London, Mercer, had a Wife
hi°m by^'his" Catharine, and no IfTue, and a Nephew Martin,

Uncle, in \vho was Plaintiff in the Crofs Caufe. Andrew Mackean
fhouid fiir- niade a Will, giving thereby, inter al\ a Legacy of
Vive theTe- ^qq ^ payable to his Nephew Martin, if he lliould fur-
vvife, fells vive the Teftator's Wife Catharine, who, by the Will,

toti 'aidb "^'^"^ ^° ^^^^^ ^'^^ Intereft of this 500 /. inter d\ for her
5 /. /.^r //««. Life, as alfo the Principal, in Cafe fhe lliould furvive
SeTefta-^ the Teftator's Nephew Martin. Soon after which the
tor's Wife Teilator died. I'he Teftator's Nephew Martin was a
before.^.'and yoi-ing Man of abouc twenty-four Yersrs of Age, but
the Legacy had led au cxtravagant Life, and been for fome Time
in fuch Cafe in Nexpgate. Mrs. Mackean, the Teftator's Widow, was
t^ M^ °^ about fixty-four Years old ; but as to her State of.
to be paid Health, there was Variety of Evidence.

within a

Year then next. J. does furvive the Teftator's Wife, and knows the Legacy was become
due to him, and being fully apprifcd of the whole FatS, confirms the Bargain ; he Ihall be
bound thereby.

Martin had offered to fell this contingent Legacy of
500 /. which was payable to him, in Cafe he lliould
furvive his Aunt Mackean, to feveral Perfons, and
amongft others, to his Aunt Mackean, but they refufed
to buy it. At length, at his Defire, Cole, the Plaintiff
in the original Caufe, and Defendant in the Crofs
I Caufe,

De Term. S. Trinitatis, 1 7 34. 291

'fc ■ ■■1^1 " !■■ I 11. ■.-■ — I ■■II ■■ l> • * ■ I.— I I 1 ■ M

Caufe, entered into an Agreement with Martin for the
Purchafe of this contingent Legacy. Cole was to give
for this 500 /. Legacy, i oo /. to be paid by 5 /. per
Annum at every Chrifimas, with a Provifo, that if Mar-
tin (hoLild furvive his Aunt Mackean^ then what fliould
remain due of the 100/. Ihould be paid him within
a Year after her Death ; but if the faid Martin fhould
die in the Life-1'ime of the Widow Mackcan^ in fuch
Cafe the 5 /. per Annum to continue payable yearly as
aforefaid, until the 1 00 /. or what fhould remain due
thereof, Ihould be fully paid to the Executors, Admi-
niflrators, or Affigns of the faid Martin*

Martin went beyond Sea, and hearing that his Aunt
Mackean was dead, returned to England '^ but before his
Return, and after his Aunt's Death, the Plaintiff Cole
brought his Bill in this Court againft the Executors of
the Teflator, Mr. Mackean, to compel them to pay the
500 /. Legacy to him, as AfTignee thereof from Mar-
tin ; and the Executors controverted the Payment, it
having been affigned over by Martin to the Plaintiff Co/^
fo much under the Value.

Upon Martin^, Returning to London from beyond Sea,
he came to the Plaintiff Cole's Houfe, telling him, he
was informed his Aunt Mackean was dead, and that
now the Legacy of 500/. which was before contin-
gent, was become abfolute ; but that he, the faid Mar-
tin, was fully fatisfied with what he had done ; and
that, if he had not fold the Legacy to the Plaintiff
Cole, he fhould have difpofed of it to fome other Per-
fon for a lefs Price ; and being told by the Plaintiff
Cole, that he was at Law with the Executors of the
Teflator, Andrexp Mackean, for the Recovery of the faid
Legacy, (they having controverted the Payment thereof
to him) he {Martin) blamed the Executors for refufing
to pay the Legacy, faying, he would fpeak to them

about

zpi De Term. S, Trinitatis, 1734.

about it, and that he was willing to do any Thing
further to confirm the Aflignment, which he had be-
fore made of the faid Legacy to the Plaintiff Cole,

Whereupon, fome fhort Time afterwards, a Deed of
Confirmation of the former Aflignment was prepared
by the Plaintiff Cole, and read over to Martin. At the
fame Time the Bill brought by the Plaintiff Cole for
the Legacy againft the Executors, and their Anfwer to
the Bill controverting the Payment thereof, was read
to Martin, who being fully apprifed of every Thing,
did execute a Deed of Confirmation of the former Al-
fignment to Cole. Afterwards Martin brought this Bill
againft Cole to be relieved againft the Aflignment, and
Deed of Confirmation. Upon a full Hearing whereof,
it was at firft decreed by the Lord King, and afterwards
upon a Rehearing that Decree afiirmed by the Lord
Talbot, that there being no Fraud in obtaining the firft
Aflignment, which was at a fubfequent Time fo deli-
berately confirmed, therefore the Plaintiff' Martin ought
to be bound thereby.

It was objefled, that here was a necefl[itous Man
felling this 500 /. Legacy for what was not near the
Value, for lefs than 100/. nay, for the Intereft only
of 100/. payable for twenty Years together; and fe-
veral Cafes were cited out of Mr. J^'ernons Reports, as
alfo [C] fome of a later Date, where Reveriions were
2 bought

[C] Earl of ^rghfs verfus M'lfchampe, i Fern. 75. Nolt verfus Hillj
I Fern. 167. Earl of /Irglafs verfus Pill, 1 Vern. 239. Berny verfus
P/7/, 2 Fern. 14. See alfo the Cafe of Twifleton verfus Griffith, Vol. i.
3.10 ; fince which was that of Curzcy>i verfus Milner, heard 19 June
1 73 1, before the Lord King, where an Heir of about twenty-icven
Years of Age,- and who had a Commiflion in the Guards, borrowed
500/. on Condition to pay 1000/. if he furvived his Father and Father-
in-Law; but if he died before his Father or Father-in-Law, then the
Lender to lofe the 500/. The Heir furvived his Father and Father-in-
Law, and was relieved, though after he had paid the Money, it being
for fear of an Execution.

De Term. S. Trinitatis, 1 7 54. 2.93

bought of Heirs on Contingencies to be void, if the
Heir fhould die in the Life-Time of the Anceftor, all
which Purchafes were fet aiide by this Court; that as
the original Bargain was unreafonable, and Fraud ma-
nifeftly appeared on the Face of it, fo this Fraud,
with which it at firft began, accompanied it through-
out, and was fufficient to fpoil the whole Tranfa6lion.
^od ab initio non valet, tra^u temporis non conva-
lefcet.

But the Lord Talbot obferved, that all thofe Cafes Unreafona-
of Heirs were immaterial to this Point ; for that the ^ad^S'
Policy of the Nation, to prevent what was a growing an Heir in
Mifchief to ancient Families, that of feducing an Heir ufe-Timet
Apparent from a Dependance on his Anceilor who'^'.'"^^ »-
probably would have fupported him, and, by feeding why. ' *"'
his Extravagancies, tempting him in his Father's Life-
Time to fell the Reverfion of that Eftate, which was
fettled upon him ; forafmuch as this tended to the
manifeft Ruin of Families ; therefore the Policy of the
Nation thought fit (though it at firft prevailed with
fome [DJ Difficulty) to put a Stop to fo mifchievous a
Pra6lice, by fetting afide all thele Bargains with young
Heirs for Reverfions; but that in the principal Cafe
here was no Heir concerned, and as it was in the Power

Vol. in. 4 F of

[D] It appears from the Regifler's Book, that in the Cafe of Berny
verfus Pill, where the Defendant had fupplied an Heir in his Father's
Life-Time with the two feveral Sums of looo/. and looo/. on Condi-
lion to have 2500 /. for each, if the Heir furvived his Father, clfe the
Princip.il to be loft ; and obtained two Judgments from the Plaintiff of
5000/. a-piece defeazanced for the Payment of the faid 2/^00/. for
each; the Lord Notlingham on the firft Hearing (9 Feb. 33 Car. 2.)
granted Relief only againft the Penalties; but on a Rehearing before the
Lord Jcffcreys, {I'j Jan. 2 Jac. 2.) though the Plaintifl^ had been con-
ftrained, in Obedience to the Decree, to pay the Defendant 5390/. yet
the former Decree was difcharged, and the Plaintiff" ordered to be re-
ftored to the Money paid ullra the 2000/. originally lent, and the In-
tereft for the fame, with Intereft from the Time the Defendant had re-
ceived it.

294 ^^ Term. S. Trinitatiy, 17 34.

of Martin, when he was returned from beyond Sea,
informed of his Aunt's Death, and that the Legacy of
500/. was become abfolute, to confirm this firft Affign-
ment, fo he had done it.

His Lordfliip admitted, that had all depended on the

firft Alfignment, he would have fet it afide, as being

an unreatonable Advantage made of a neceflitous Man ;

but feeing the faid Martin was afterwards fully appri-

A fubfe- fed of every Thing, had the Executor's Aniwer read

berate Aft" f" him, and yet chofe to execute a Deed of Confir-

confirming mation of his former Aflignment; and lince not the

able Bargain, leaft Fraud nor Surprize had appeared on the Part of

when the j.|-,g Defendant, it was, he faid, too much for any

Partv IS tally r u ^ • r ^ r T

informed of Court to let all this alide. [E\

every Thing,

and under no Fraud nor Surprize, fhall make the Bargain good.

[E] The following Anonymus Cafe appears in another Part of the
Reporter's Manufcript, to have been determined during the firft Time of
the Lord Cozvper's having the Great Seal, and feems very applicable to
the Cafe above reported :

A Man was caught in Bed with another's Wife, and the Hufband who
caught him, having a Sword in his Hand, was about to kill the Man,
who was naked, and in the Power of the Hufband. But upon the
Man's defiring the Hufband not to take that Advantage of him, and
faying, that he would make him Reparation -, thereupon they went into
another Room, where the Man gave the Hufband a Note for i oo /. pay-
able at a certain Time. After which, the Money growing due, the
Hufband came for Payment, and the Man excufing Payment, gave his
Bond for the Money, and afterwards brought his Bill to be relieved. The
Lord Cozc^per declared, that if the Matter had refted on the Note, which
was gained by a Man armed, from one naked, and by Durefs, though it
happened to be given in Satisfaftion for the greateft Injury, (in which
Cafe, however, the utmoft Remedy the Law would have given, had
been Damages to be afcertained by a Jury) he fhould have made no Dif-
ficulty of granting Relief; but when afterwards the Plaintiff had cooly,
and without any Pretence of Fear or Durefs, entered into a Bond to the
Hufband, he had thereby himfelf afcertained the Damages, and oughc
not to be relieved.

Tanner

De Term. S. Trinitatis, 1754. Z97

Tanner verfus JVife. care74.

Lvrd Chait'
ff/fcr Talbot.

On a Rehearing from a Decree of the Lord Chan-
cellor King.

THE Teftator's Will was m this Manner: In the ;^^'^ ^^^''.^
[I devifc all
Name of God, Amen. As to all my temporal my temporal

Eftate with which it hath pleafed God to blefs me, I di- }^^l '^^

fpofe of the fame as follows : I will that my Debts be devife all my

paid ; after which he difpofed of feveral pecuniary and JJ'°^pj \^^

other Perfonal Legacies, gave 4 s. per Week to a Re- pafs a Fee,

lation for her L,ife ; then came thefe Words : " All the tJe plainer,

" Reft of my Eftate, Goods, and Chattels whatfoever, ^^^^^^ 'V*

" Real and Perfonal, I give to my beloved Wife, whom faid, all the

" I make my Executrix." The Teftator died poftefled ^f, f^^^^j^^

of Leafes for Years, and felfed of Lands of Inheri- the Word *

tance in Fee-fimple. ^il'Sll

lation.

The Bill was brought by the Heir at Law of the
Teftator, fuggefting, that the Teftator's Widow had all
the Writings and Title Deeds relating to the Inheritance
of the Lands of which the Teftator died feifed ; and
that thofe Writings belonged to the Heir, who v/as in-
titled to the Lands. The Defendant, the Widow, by
her Anfwer inlifted, that all the Real Eftate of the
Teftator was by the faid Will devifed to her in Fee-
limple.

This Caufe was brought to a Hearing before the
Lord Chancellor King^ who decreed, that as the
Plaintift" was the Teftator's Heir at Law, all Deeds
and Writings relating to any Part of the Teftator's
Eftate ftiould be brought before the Mafter for the
Plaintiff, the Heir at Law, to have the Infpe£lion

thereof,

1^6 De Term. S. Trinitatis, 1734.

thereof, who fliould be at Liberty to bring an Eje£l-
ment ; and that the Defendant who claimed under the
Will, fhould not give in Evidence any dormant Term
or Incumbrance.

Afterwards the Plaintiff, the Heir at Law, had a
Rehearing on a Petition, and objefted, that here were
no Lands of Inheritance by exprefs Words devifed by
the Will ; nor did it appear, that the Telfator intended
to pafs any Part of his Real Eftate ; that the Words all
my temporal Eflate might be fatisfied, by being con-
ftrued to difpofe of the Teftator's Perfonal Eftate only,
particularly his Leafes for Years, which were in their
Nature temporary, and would wear out in Time. And
fince it was at leafl: doubtful, whether the Teftator in-
tended hereby to pafs his Real Eftate ; by doubtful
Words an Heir was not to be diiinherited. Befides,
this Cafe relating to a Title of Land, and depending
intirely upon the Words of a Will, was more proper
to be determined in Equity, than by a Judge and Jury
at 'Nifi Prius.

Lord Chancellor : I think this Decree is right, and
that it was fufficient to direft, that the Writings Ihould
be produced before the Mafter, and no dormant In-
cumbrance given in Evidence againft the Plaintiff.
But a (light Though it leems but a flight Equity for an Heir
SHe^/°at fo ^^y> ^^ wants the Writings, when his Title as Heir
Law to fay, ftands in need of no Writings, unlefs he claims under
Writings 1 ^fome Deed of Intail concealed by the Widow, or Exe-

unlefs he cUtOr.

claims under

fome Deed of Intail concealed from him by the defendant.

Where aTi- It is true, wherc a Title depends upon the Words of
In th^" ^ 3 ^^'ill only, I do not fee, but this Court may deter-
Words of a j^jne it, as well as a Judge and Tury. Notwithftand-

Will; this ' J D J J^

h as properly determinable in Equity, as by a Judge and Jury at Niji Prius.

2 ing

De Term. S. Trinitatis, 1734. 297

ing which, if either Party has a Mind to go to Lawy
with the Dire6lions that have been given by the Decree,
I will not hinder them ; But if both Parties are defi-
rous to have my Opinion touching the Title, I am
ready to give it. Upon which the Counfel on both
Sides declaring, that they ftiould willingly acquiefce to
the Judgment of the Court, his Lordfliip delivered his
Opinion, that a Fee paffed by this Will to the Widow
of the Teftator.

Firfl, For that though it had been obje£led, that
the Words temporal Eftate did more properly refer to
Perfonal Eftate, and efpecially to Leafes for Years,
(which, comparatively fpeaking, are but of fhort Conti-
nuance) and not to an Eftate of Inheritance, which is
permanent, and may laft for ever ; yet here this Ex-
preffion feemed to have been made ufe of in the Will
in Contradiftin6lion only to the Teftator 's eternal Coti'^
cerns, which every Man, at the Time of making hjs
Will, is naturally fuppofed to have in View ; fo that
the Words temporal Eflate lignify the fame as worldly
Ffiate, or all that a Man has in the World (d), and
confequently take in both Real and Perfonal Eftate.

In the next Place, where the Teftator had faid,
that as to all his temporal Eftate he difpofed of the
fame as followed ; and, after having given feveral
Legacies, proceeded to devife the Reft and Relidue of
his Eftate, Goods, and Chattels, Real and Perfonal j
thefe Words, Refl and Refidue, are Words of Relation,
and muft refer to fome Eftate before mentioned in
the Will, if any fuch there were. Now, in this Cafe,
there was an Eftate mentioned before by the Teftator,
iyini) his temporal Eftate, which brought it to fignify

Vol. III. 4 G the

{d) See 2 Vern, 687, Ackland verfus Ackland. 2 Vein. .690, Beach'
cpft verfus Beacbcroft.

298 De Term. S. Trinitatis, 1754.

the fame, as if tlie Teftator had faid, " I devlfe the
" Reft and Refidue of all my temporal Eftate," which,
without the Word Heirs (e\ would have fufficed to
pafs all his Real Eftate.

Wherefore the Lord Chancellor with great Clearnefs
decreed, that all the Real Eftate did well pafs by this
Will to the Teftator 's Wife and her Heirs*

^^^75- Lilly verfus shorn.

Sir Jofeph ''

Jekyll, Ma-

£iif. * ' (^ N E purchafed a Copyhold, and took a Surrender
One not in ^"^ of ic to the Ufe of himfelf for Life, Remainder
2en'a"°' ^^ ^^^ ^fe of his Wife for Life, Remainder to the Ufe
Trader, of Truftecs for twenty-one Years, to raife 80 /. for
knta^sr-'his Daughter, Remainder to the Ufe of himfelf in Fee.
tiementonaAt the Time of this Purchafe, the Purchafer was no
afterwards Tiadcr, uor owcd any Debts ; but afterwards he en-
becomes a gaged in Trade, contrafted Debts, and about fixteen
a Bankrupt; Years after became a Bankrupt. Whereupon a Com-
this Settle- niilllon was taken out againft him, and his Wife dying,

mcnt not lia.- * -^ ^

bie to the the Commiflioners afligned over the Copyhold Pre-
Bankruptcy. ^iifes, which the Aflignees fold to the Defendant, al-
lowing him to detain in his Hands the 80 /. in order
to aniwer it to whomfoever it (hould be adjudged
due. And the only Queftion was, whether this was
within the Claufe in the Statute of i Jac. i. cap. 15.
[cEi. 5. where it is faid, " That if any Perfon which
hereafter is or fliall be a Bankrupt, fhall convey, or
procure, or caufe to be conveyed to any of his
Children, any Lands or Tenements, Goods or Chat-
" tels, except the fame be purchafed, conveyed or

2 *' trans-

{e) Sec the Cafe of Ban-y verfus Edgewortby Vol 2. 523.

De Term. S. Trinitatis, 1734. 299

" transferred, for or upon Marriage of any of his or
" her Children, or fome valuable Confideration ; it
" fhall be in the Power of the Commiflioners to difpofe

of the fame, as if the Bankrupt had been aftually

feifed or poflefTed thereof."

And it was obje£led, that this came exa^ly within
the Wdrds, being a Provifion for a Child, and merely
Voluntary, without any Confideration, as againft Cre-
ditors. To which Opinion at firft inclined the Matter
of the Rolls.

But afterwards, upon citing the Cafe of Crijp verfus
Frat^ Cro. Car. 548. where it appeared that the Perfon
fuppofed to be a Bankrupt, had fettled a Copyhold
Eftate on himfelf, his Wife and his Son, and the Heirs
of his Soti ; and the Perfon at that Time not being in
Debt, but a clear Man, nor then fo tnuch as a Trader,
and the Settlement being two Years before he was con-
cerned in Trade, and fix Years before any A£1 of
Bankruptcy committed by him : In that Cafe, the
Court of B.R. (viiii.) th^ee Judges a^a,inR BerkeUy, held
it not within the A61:. Accordingly in the principal
Cafe, confidering the Party was not fo much as a Trader
when he made the Settlement, the Mafter of the Rolls
was clear, that the faid Settlement was not liable to
the Bankruptcy.

Studholme

3oa Dc Term. S. Trinitatis, 1754.

Cafe 76. Studholme verfus Hodgfon if al\

Lord Chan-
cellorTalhot

(le- I 'HE Bill was to have the Benefit of a contingent
crm X Devife of a Perfonal Eftate fecured to the Plain-

Teftator
lifed a Term
for Years

nnd all his tiff, and for an Account of the fame. Michael Stud'
alletoj' holme, being poffefTed of feveral long Exchequer Annui-
an Infant fjgs granted by Parliament for ninety-nine Years, to

and if ^. , \? , r ^ , . i i • MI • •

died during thc V aluc ot zjo/. pcY Annum, and having an illegiti-
^'Vh^'ivi' ^^^^ Daughter, the Defendant Mary, married to his
ther (houid Kinfman Ciithbert Hodgfon,, another Defendant, and ha-
an^ ^oSher* ^"'"§ "^ lawful IlTue, and having a Nephew, a Brother's
Child, then Son, {viz^) the Vhmt'iS William Studholme, made his Will
iHed during ^^^^^ 2 6 July 171 1, thereby deviling to Michael Hodg-
his Infancy. Jon, the Son of the Defendant Hodgfon and Maiy his
Modifr was Wife, all his Exchequer Annuities for the Refidue of
^'"■■'ngy^nd his Term therein ; with Direftions, that all the Pro-
Chlid; yet cccd thereof from Time to Time ihould be placed out
a!'ded^£""h ^^ Intereft, and out of fuch Intereft, that Michael
Devifee Hodgfon, the Defendant's Son, Ihould be maintained
over, by di- gj^^ cducated till his Age of twenty-one, at which

retting an. o r ^

Account and Time all the Proceed and Profits thereof, and the prin-

of'theSte ^'P^^ Money fo placed out, together with the Intereft

in order to thereof, fhould be paid to the faid Michael the Son ;

Cafe'the' '" but in Cafe the faid Michael Ihould die before twenty-

Contingen- one, then the Teftator devifed, that all the Annuities

happen. given to the faid Michael, fhould go to his Mother,

Mary Hodgfon, and to fuch other Child or Children

as fhe fliould thereafter have. Share and Share alike ;

and for want thereof, to her Executors, Adminiftra-

tors and Affigns. He gave feveral Leafehold Houfes in

St. James's to the Defendant Mary Prober for her Life,

Remainder to Michael Hodgfon the Infant Son, if he

lived to twenty-one ; otherwife to fuch other Children

I as

De Term. S. Trinitatis, 1734. 501

as the faid Mary Hodgfon (liould have, equally ; and
for want of fuch Children, then to the faid Mary his
Mother, her Executors and Adminiftrators ; and the
faid Teftator did thereby give a Moiety of his Plate to
the faid Michael Hodgfon the Infant, and the other Moi-
ety, together with the Rett of his Goods at his Houfe
at St. James s, to the Defendant Mary Prober. As to
his Houfe in Dover, he devifed the lame to the faid
Michael Hodgfon the Infant and his Heirs, and gave all
the Reft of his Real and Perfonal Eftate to the faid
Michael Hodgfon, his Heirs, Executors, Adminiftrators
and Alligns for ever, making the faid Mary Prowler
Executrix.

20th of September 1715, the Teftator made a Codi-
cil, thereby giving to the Defendants Cuthbert Hodgfort
and Mary his Wife, 50/. per Annum for their Lives,
and the Life of the Survivor of them, to be iftliing
out of the faid Exchequer Annuities. Alfo he gave
them the faid Houfe in Dover for their Lives and the
Life of the Survivor, and 50/. per Annum out of the
faid Exchequer Annuities to the faid Mary Prober his
Executrix for her Life ; and reciting, that he had by
his Will given to the faid Michael Hodgfon all his Exche-^
quer Annuities, in Cafe he fhould live to twenty-one,
and if he died before, then to his Mother Mary ; and
alfo that he had given to the faid Michael Hodgfon fe-
veral Leafehold Houfes in St. James's, if he attained
twenty-one, if not to fuch other Children as the faid
Mary Hodgfon fliould have ; and for Want of fuch, then
to the faid Mary, her Executors, iffc. and had alfo
given to the faid Michael Hodgfon and his Heirs his
Houfe at Dover^ one Moiety of his Plate, and the
Refidue of his Real and Perfonal Eftate : The Tefta-
tor by his faid Codicil declared, that in Cafe Michael
Hodgjon the Son fliould die before twenty-one, and the
VOL. in. 4 H faid

302. De Term. S. Triuitatis, 1 7 34.

faid Mary his Mother flioulJ die mthotit any other
Children or Child by the faid Guthbert Hodgfon her Huf-
band, then all the Legacies and Bequefts of the faid
Annuities, Houfes, Lands and Premises, fhould go,
be paid, defcend and come to the Teftator's Nephew
the Plaintiff William Studholme, his Heirs and Afligns
for ever : Soon after which the Teftator died.

The Infant Son Michael Hodgfon died within a few-
Days before his Age of twenty-one, and Mary his
Mother being forty Years of Age, and her Hulband
above fifty, and having no Child ; the Plaintiff Stud'
holme, the Devifee over, brought his Bill for an Ac-
count of the faid Teftator's Perfonal Eftate, and to
have the fame fecured and fet apart, to the End that,
in Cafe the Contingency of the Death of the Defendant
Mary Hodgfon without Children fhould happen, the
Plaintiff might receive the fame according to the Di-
re£lions of the faid Will ; and that in the mean Time
the Money arlfing from the Rents and Profits of the
faid Perfonal Eftate, might be placed out on Securities,
in order to wait the Event of the faid Contingency ;
and that all the Writings relating to the Real and
Leafehold Eftate, might be brought before the Mafter.

For the Defendants it was faid, ifi, that as to the
Leafehold, the Exchequer Annuities, and other Perfonal
Eftate, the Bill was not proper ; lince the Plaintiff at
that Time had not the leaft Pretence of Right, and pof-
fibly might never have any ; nay, that it was rather to
be prefumed he never would ; the Prefumption of Law
being, that no one mil die without Ijfue, for which
Reafon it fuppofes an Eftate-tail may laft for ever ;
and therefore if an Eftate Ihould be given to A. and
his Heirs as long as B. ftiall have any Iffue of his Body,
this would be a Fee-fimple in A. That fuppofe fome
I Years

De Term. S. Trinitatis, 1754. 303

Years hence (or very foon, as ic might happen) the
Defendant Cuthhen Hodgfon, by Maty his Wife, fhoiild
have IlTue, what fhould become of thefe Cotts which
the Parties the Defendants will have been then unne-
celTarily put to? And i P^'ern. 105. Sackvill verfus
Ayleworth was cited, where a Bill was brought in a
Lunatick's Life-time, by his Devifee, to prove his
"Will, and to perpetuate the Teftimony thereof; but ic
was determined, that the Bill would not lie, becaufe
fuch Devifee, in the Life of the I'eftator, had neither
jus in re nor ad rem^ had not at that Time, and pof-
fibly never might have, any Sort of Right ; alfo the
Lunatick, the Teifator, might recover from his Lunacy
and make another Will ; both which Reafons were ap-
plicable to the prefent Cafe, and made againft this
Bill: For the Plaintiff here had neither jus in re nor
M rem, and by Poilibility never might have any.
Again, as the Lunatick in the Cafe cited might recover,
fo the Devifee for Life in the principal Cafe might
have Iffue ; and as that Bill was, for the Reafons that
have been mentioned, held improper, fo (it was con-
ceived) the prefent Bill, on the like Conliderations,
would be deemed improper alfo.

But by the Lord Chancellor : As to what has been J^}'*^!"^ *
objeded concerning the Cofts, thefe ought clearly to brought to
be paid out of the Affets of the Teftator, who by his [^^"^1!^^,^'"^
Will has occafioned the Difficulties. Here is a Poffi- nefit of a
bility at leaft of a Right's coming to this contingent 5°"p'J"|'^JJ
Devifee, and it is reafonable that all Rights, fuch asvifedover;
they are, whether vetted or contingent, Ihould be pre- ftaii be'^mid
ferved. On the Death of Mary Hodgfon the Mother, it out of the
will be determined, whether this Right will ever veftTeSorV^"
or not, which has been adjudged not too remote a'^'''° ^y ^'^
Diftance of Time. If the Defendants were not to be c3(i'oned\he
called to an Account in their Life-time, they might ^'^'^"''y-

watte

304 De Term. S. Trinitath, I754.
♦

wafte and imbezil every Thing ; and that Eftate which
at prefent may be eafily accounted for, in Procefs of
Time, {viz^ at the Death of the Defendant Mary
Hodgfon, may be impoffible to be difcovered ; by which
Means the Devifee over may be deprived ot his Rights
and the Intentions of the Teftator defeated ; and
though there may be thefe Inconveniencies on the one
Side, I, for my Part, am able to forefee none on the
other. In the Cafe of Staines verfus Maddox, where
the Bill was for fecuring a like contingent Right) the
Matter of the Rolls made a Decree of this Nature,
which was affirmed by the Lord Chancellor King^ and
his Lord (hip's Decree (/) affirmed in Parliament.

One devifes

a Term for The fccond Qiieftion was, whether the Devife over
and'^fyf dies ^^ ^^e Exchequcr Annuities and Leafehold Houfes, and
without a more efpecially of a Moiety of the Plate and Reiidue
to 5. 'this is of the Perfonal Eftate, was good ?

a good De-

upon fucii And it was obje£led, that in the Cafe of a Devife of
Contingen- ^ Chattel Real or Perfonal to one, and if he die with-
out Ifliie, the Remainder over, fuch Remainder muft
be admitted to be void ; and in the prefent Cafe the
Devife over was, " If Mary, the Infant's Mother, fhould
*' die without any other Children or Child by the faid
" Cuthbert Hodgfon ;" which Words Child and Ijfue are
fynonymous, every Child being an Illue, and every
Iffue a Child. Moreover, the laft Devife by the Co-
dicil being in Cafe Mary the Mother lliould happen to
die without any other Children or Child, then to the
Plaintiff Studholme and his Heirs ; no Eftate ought to
pafs by thofe Words, but what can defcend to Heirs,
efpecially lince the Teftator had fome Fee-fimple Eftate,
{vizj) the Houfe at Dover, which would fatisfy the
Deviie, without carrying the Perfonal Eftate ; that in-
deed

(/) 30th of April 1728.
2

De Term. S. Trinitatis, 1734. 309

I 1 ■ — -" " '-- - ' ■ ■■ ■ " ■ ITU

deed as to the Exchequer Annuities and Leafehold
Houfes, they, being exprefly devifed, mull pals by
the Codicil to the PlaintifF, in Cafe the Devife over
were good.

Sed per Cur : There can be no Doubt but that the
Devife over to the Plaintiff, in Cafe Mary the iVtother
fiiould die without any other Child by her Hufband,
is good upon that Contingency ; and then, as to the
Qiieftion, how much Ihall be comprehended therein,
it is obfervable, that not only the Exchequer Annuities
and Leafehold are exprefly devifed, but all the Pre-
milTes ; and the Intention of the Codicil was, in Cafe
Michael the Infant Son fhould die before twenty-one,
isfc. that then the Tertator's Nephew, the Plaintiff"
Studholmcy lliould be put in the Place of the faid
Michael,

The lafl: Point was, touching the intermediate In-
tereft of the Refidue. And here it was infilled, that the
fame belonged to Mary the Mother by a neceffary Im-
plication, and it was compared to the Devife of a Free-
hold Eftate to the Teftator's Heir at Law after the
Death of J. S. in which Cafe it was manifeft the Heir
at Law could not have it fooner ; confequently J. S.
would in the mean Time be intitled to the Premiffes
for his Life. Vaugh. 259. Gardiner verfus Sheldon.

Sed per Cur : In the Cafe cited the Teftator had
declared his Intention, that the Heir at Law fhould
not have it fooner ; and there the Freehold could not
be kept in Abeyance, but muft veil in fomebody j
whereas in the prefent Cafe, there is no fuch Rule
with Regard to Perfonal Eftates, which may remain
in Sufpence. Wherefore the Profits of the Refidue
from the Death of Michael, till the Contingency hap-

VoL. III. 4 I pens.

3o5 De Term. S. Trinitatiy, 1734.

pens, are to accumulate and be added to the Capital ;
and If no Child of the Defendant Mary by her Huf*
band Cmhbert, then to go to the Plaintiff. [F]

[F] Thomas Green, Efq; poflfefTed of a large Perfonal Eftate, and
having a Daughter by a firft Wife, and a Daughter by a fecond Wife,
and having no Son, bequeathed his Perfonal Eftate (fubjed to the Pay-
ment of feveral Legacies) to his Daughter by his fecond Wife, and if
flie fliould happen to die before her Age of twenty-one, or Marriage,
and his Daughter by his firft Wife fhould have one or more Sons, he
bequeathed his faid Peribnal Eftate unto fuch Son as fliould firft attain
his Age of twenty-one -, and in Cafe his (i\id Daughter by his firft Wife
Ihould have no Son that (hould attain the Age of twenty-one, then he
gave his faid Perfonal Eftate to J. S. The Daughter by the fecond
Wife died under her Age of twenty-one, and unmiirried ; the Daughter
by the firft Wife had a Son, during whofe Infancy and on whofe
Behalf, a Bill was brought (inter af) to have the Produce of the Per-
fonal Eftate placed out at Intereft, and improved for the Plaintiff's
Benefit. Upon hearing the Caufe it was infifted, that either the Plain*
tiff\, the Infant himfelf, or his Mother, were intitled to the interme-
diate Profits i but the Court, agreeably to the Lord Talbot's, Opinion
and Decree in the above mentioned Cafe, did declare, that all the
Intereft, Income and Profits that had arifen or ftiould arife from the
fiid Eftate, from the Death of the Teftator's Daughter by his fecond
Wife, ought from Time to Time to be accumulated, added to, and
go along with the Surplus-, and that in Cafe the Plaintiff ftiould die
before his Age of twenty-one, the Intereft and Income, together with
the Surplus, ought to go and belong to fuch Perfon and Perfons as
fhould be intitled thereto, according to the Dircftions and Contingen-
cies mentioned in the Teftator's Will. Green verfus Ekins, heard be-
fore the Lord Hardwicke, December 6, 1742.

ToHr'vilU

De Term. S. Trinitatis, 1754. 3^7

Touwille verfus Naijh. c^kyy-

Lord Chan-
«//ffr Talbot.

4 Purchafed an Eftate, and having paid down Part where a
•^-*- of the PLirchafe Money, gave Bond for the Re-^X^;;-^,
fidue. The Plaintiff had an equitable Lien on the ftate, pays
purchafed Premifles^ of which the Defendant alleged ^Hl g"„j
he had no Notice at the Time of making his Pur- to pay the
chafe, but was apprifed thereof before Payment of the the Money;
Money due on the Bond. And it was contended, that Notice of an

• ' ^ r 1 • • 1 r> . equitable In-

this Notice was not materia^ lince the giving the Bond cumbrance
was as Payment ; and the Purchafer, after he had ^^^^^IP'^^^
given his Bond for Payment of the Purchafe Money, Money, tiio'
is bound in all Events to proceed, and cannot plead ^"^j^j^f^f.
at Law, that there is an equitable Incumbrance on his fieient.
purchafed Preraiffes.

Lord Chancellor : If the Perfon who has a Lien in
Equity on the Premiffes, gives Notice before a£lual
Payment of the Purchafe Money, it is fufficient ', and
though the Purchafer has no Remedy at Law againft
the Payment of the Relidue, for which he gave his
Bond, yet he would be intitled to Relief in Equity,
on bringing his Bill, and Ihewing, that though he has
given his Bond for Payment of the Refidue of his
Purchafe Money, yet, now he has Notice of an In-
cumbrance, under which Circumftances the Court
would ttop Payment of the Money due on the Bond.
This the Lord Chancellor declared, though in the prin-
cipal Cafe there was Proof of a Notice precedent to
the Purchafe, by a Letter read to the Purchafer, men-
tioning the equitable Lien on the Premiffes.

Alfo

3o8 De Term, S. Trinitatis, 1734.

Where the Alfo in this Cafe there were two Executors that
il^n^^isoniy ^^^^^^ moreover Reiiduary Legatees, and one of them,
a c/;-j/i' en for a valuable Confideration, affigned over Part of his
tie Affign-' Refiduary Share to J. N, after which, for a valuable
ment be Conlideration likewiie, he affigned over his whole Re-
ticeTvet, as fiduary Share to the other Executor and Refiduary Le-
ro legal E- ^atcc, who (as it was faid) had no Notice of the for-

ftate pafles, "^ . .-v

gui prior cji vciti Allignment.

in Tempore,
potior eft in Jure.

If there be Whcrcupon It was infiftcd, that this Legacy of the
Trs wh^aTe ^urplus was a Cho[e en J^ion, good only in Equity, and
aifo'Refidu- not at Law ; in which Cafe the Affignment that was
and^n^oT' d) P^'°^ ^" Time muft take Place, confequently the
them, for a Affignmcut made to J. N. would prevail.

valuable

Confideration, afllgns Part of his Refiduum to A. and afterwards, for a valuable Confidera-
tion, afligns his whole Refiduum to the other Executor ; if both are but Chojes en Aiiion^
the firft Affignment muft take Place.

To which it was anfwered, that though a Legacy
be a Choje en ABion, yet, when it is affigned to an Ex-
ecutor, (as the laft Affignment was) he, having a Re-
medy at Law, is in a different Situation from a third
Perfon.

Lord Chancellor : I do not fee any Difference ; for
the Thing affigned is ftill but a Chofe en Action, which
the Executor himfelf cannot come at, unlefs by A^lion
or Suit, either in Law or Equity.

It feems, if it had been a Mortgage made to the

Teflator, and affigned by one of the Executors to the

other, the latter might have entered ; but in the prin-

I cipal

Q) See the Cafe of Br^ce verfus Tbe Duchefs of Marlborough^ Vol. 2.
496.

De Term. S. Trinitatis, 1754. 509

cipal Cafe the Affignment was but of i 200/. due upon
all the Mortgages made to the Teilator from A. B. the
Father and A. B. the Son, which not being recoverable
otherwife than by a Suit in Equity, was clearly a Chofe
en ASliort.

Wych verfus Eafi India Company. ^^^^ 78-

Lord Chan-
«//i5r Talbot.

TH E Ea^ India Company were bound by Contra£l An Execu-
to make an Allowance of two Rupees pr Cent. nSr.mt™or
to the Plaintiff's Inteftate, for which the Plaintiff, the Truftee for
Admin iff rator de bonis non of his Father, brought a^egkaTto
Bill. The Inteftate, with whom the Company made fije within fix:
the Contraft, was then beyond Sea, and there died, statute of
leaving an Infant Son of tender Years. Upon the J^^^'J-^Jj^g
Death of the Inteftate, Adminiftration was granted to infant.
A. until the faid Son ftiould come to Twenty-one, ad
Ufum isf Commodum of the Infant, who at that Time
was about ■■ Years of Age. The Adminiftrator in

Truft for the Infant never commenced any Suit on
this Contra£l ; but the Son, within fix Years after his
attaining Twenty-one, brought this Bill againft the
Company, who pleaded the Statute of Limitations,
iyi-zj) that the Caufe of A6lion did accrue above fix
Years before the Suit commenced.

Whereupon it was argued, that as the Time did
not run againft the Father, with whom the Contra£l
was made, becaufe he was beyond Sea, and died there;
fo after the Death of the Father the Son was an In-
fant, and ought not to be barred or prejudiced by the
Negle£l or Default of his Truftee, the Adminiftrator
during his Minority.

Vol. III. 4 K Lord

510 De Term. S. 7riiutatis, 1734.

Lord Chancellor: The AdmlnlHrator during the In-
fancy of the Plaintiff had a Right to fue ; and though
the Cefluy que Trufl was an Infant, yet he muft be [G]
bound by the Truftee's not fuing in Time ; for I can-
A Corpora- not take away the Benefit of the Statute of Limita-
have the Be- tious from the Company, who are in no Default, and
iiefit of the ^fg intitled to take Advantage thereof as well as pri-
Limitations, vate Pcrfons ; fince their Witneffes may die, or their
^I'^'^'rhSte ^^o^chers be loft. And as to the Truft, that is only
Pe'ffon, between the Adminiftrator and the Infant, and does
not afte£l: the Company. So where there is an Execu-
tor in Truft for another, and the Executor negle£ls to
bring his A6lion within the Time prefcribed by the
Statute, the Cefliiy que Truft, or Refiduary Legatee, will
be barred ; therefore allow the Plea.

Cafe 79- tPjch vcrfus MeaL

Lord Chan-
fr/ir Talbot.

TheSecre- fN 3 Bill brought by the Plaintiff" againft the Eaft
tary and J. j^^-^ Companv, One of the Officers of the Com-

cook-keeper ir^ri • jt

of the Eafl pany was made a Defendant, m Order to ditcover
^ny weT' ^^^^ Entrics and Orders in the Books of the Corn-
made De- pany.

fendants to

a Bill for a Difcovery of fome Entries and Orders of the Companv ; the Defendants de-
murred, for that they might be examined as Witneflcs ; alfo becauie their Anfwer cannot
be read againft the Company ; the Demurrer over-ruled, left there (hould be a Failure of
Juftice, in Regard the Company are not liable to a Profecution for l\'rjury, though their
Anfwer be never fo falfe.

[G] In the Cafe of ^e Earl verfus TZt Coiinlefs of Huntingdon, Hill.
1719, the Lord Chancellor Prtr^^^r was of Opinion, but did not then
determine the Point, that a Fine and five Years Non-Ciaim (hould, in
Favour of a Purchafer, bar a Truft Term, though the Cejluy que Truft
was an Infant.

The

De Term. S. Trimtatis, 1734. 3^'

*rhe Defendant (Jemlirre(i, fliewing for Caufe that it
was not fo much as pretended by the Bill, that he was
any way interefted in the Matter in Queftion ; and that
his Anlwer, if it were to be put in, could not be read
againft the Company ; as the Anfwer of one Defendant
[H] cannot be made Ufe of againft the other ; that
the Plaintiff, if he pleafed, might examine the Defen*
dant as a Witnefs ; that by the fame Reafon, the Plain-
tiff might make the Servant of any private Perfon a
Defendant ; and that it was plain the Plaintiff could
have no Decree againft the Defendant, the Officer of
the Company* [l]

Lord Chancdhr : This is a Thing of Confequence^
which I do not remember to have been ever judicially
determined ; but fo far is plain, that the Plaintiff is
intitled to, and ought to have, a Difcovery of the
Matters charged in the Bill. It is a different Caie where
a private Perfon, and where a Company are Defen-
dants ; for the latter can anfwer no otherwife than un-
der their Common Seal ; and though they anfwer ne-
ver fo falfely, ftill there is no Remedy againft them

for

[H] One Reafon^ amongft others, why the Anfwer of one Defen-
dant cannot be nude Ufe of againft another, feems to be, becaiife, if
that were allowed, I might make a Friend Co-Defendant, who might
put in an Anfwer in my Favour, and the other Defendant would have
no Opportunity of crofs-examining to it.

[ I J It is a general Rule, that no one need be made a Party againft
whom, if brought to a Hearing, the Plaintiff can have no Decree :
Thus a Refiduary Legatee need not be made a Party, and for the fume
Reafon, in a Bill brought by the Creditors of a Bankrupt againft the
Aflignees under the CommifTion, the Bankrupt himfelf need not be made
a Party. By the Mailer of the Rolls, De Golls verfus lizard. Hill. 17324
Though, with Regard to making the Bankrupt a Party, it feems for-
merly to have been held otherwife. See 2 Vern. 32. And however the
Rule laid down by the Mafter of the Rolls may hold in general, yet the
Determination of the Lord Talbot, on the particular Circumftances of
the Cafe above reported, appears to have been founded on great Reafon
and Juftice,

312 De Term, S. Trinitatis, 1 7 34.

for Perjury. It has been an ufual Thing for a Plain-
tiflP, in Order to have a Difcovery, to make the Secre-
tary, Book-keeper, or any other Officers of a Com-
pany, Defendants, who have not demurred, but an-
fwered ; whereas, if this Demurrer Ihould be allowed,
the Officers of Companies are never hkely to anfwer
again ; and though the Plaintiff be intitled to a Dif-
covery, he would never be able to get one, confe-
quencly there would be a Failure of Juftice.

Befides, notwithftandlng the Anfwer of the Defen-
dant the Officer cannot be read againlt the Com-
pany, yet it may be of Ufe to dire£l the Plaintiff
how to draw and pen his Interrogatories, towards
obtaining a better Difcovery ; and iince no Inftance
is produced, where fuch a Demurrer has been allowed,
and it may be very mifchievous and injurious to the
Subjeft, by allowing thereof, to deprive them of that
Difcovery, to which, in common Juftice, they are in-
titled ; and as on the other Hand no Manner of In-
convenience can enfue from obliging fuch Officers of
a Company to anfwer; therefore over-rule the De-
murrer.

Cafe 80. Ex Parte Brunhr.

Lord Chan-
<:f//ffr Talbot.

AWritof nr^HE Mafter of the Rolls, upon a Petition ex

Ne exeat reg- X. Parte, granted a Ne exeat regnum againft J. S.

not to be (againft whom the Plaintiff Brunker had recovered a

SottaBiii V^^*^^'^ ^^ ^h^ Sittings after this laft Term) upon ftrong

firft filed. Affidavits, that the faid J. S. between this and Michael'

mas Term then next, (before which Time the Plaintiff

could have no Judgment) threatened to go beyond

Sea; and this Writ was granted, though no Bill had

been filed, upon a Precedent produced of the Lord

Coivpers in 1709.

z And

De Term. S.TrinitatiSy 1734^ 5^5

And no^, on Motion to fiiperfede this Writ, ^nd
difcharge the Defendant, who had been taken into
Cuftody by Virtue thereof, it was urged in Support
of the Order at the Rolls, that the Writ of Isle exeat
regnum was in the Regifter, and at Common Law, and
though originally a State Writ, yet now was made Ufe
of in Aid of the Subje£ls, to help them to their juft
Debts ; and being a Writ at Common Law, it flood
in no Need of the Authority or Interpoiition of this
Court.

Lord Chancellor : In all my Experience 1 never kneW
this Writ of Ne exeat regnum granted, or taken outj
without a [K] Bill in Equity firll filed. It is true, it
was originally a State Writ, but for fome Time (tho' not
very [l] long) it has been made Ufe of in Aid of the
Subjefts, for the Helping them to Juftice ; but ftiil, as
Culloni has allowed this latter Ufe to be made of it,
it ought to go no further than can be warranted by
Ufage, which always has been to have a Bill firtt filed*
The Precedent cited i.n the Lord Corvpers Time was
but a fingle one, and paiTed fitb filentio. Neither does
it appear, that any tJfe was made of that Writ, or
that the Party Defendant was ever taken upon it; fo

Vol. III. 4 L that

[K] Yet lee the Cafe o^ Lloyd verfus Cardy, Precedents in Chan. lyi.
where a Ne exeat regnum was granted on Affidavits, by the Mafter of
the Rolls (Sir John "Trevor) in the Abfence of the Lord Keeper TVright^
though there was no Bill in Court whereon to ground the Writ ; which
Report of the Cafe is warranted by the Regifter's Book.

[L] Towards the latter End of the Reign of King James the Firft,
this Writ was thought proper to be granted, not only in Refped of At-
tempts prejudicial to the King and State, (in which Cafe the Lord Chan-
cellor granted it on Application from any of the Principal Secretaries,
without Caufe (hewing, or upon fuch Information as his Lordfhip (hould
think of Weight) but alfo in the Cafe of Interlopers in Trade, great
Bankrupts in whofe Eftates many Subjeds might be interefted, in
Duels, and in other Cafes that did concern Multitudes of the King's
Subjeds. See the Lord Bacon's Ordinances^ N° 89.

314 Be Term. S.Trinitatis, 1734.

that this alone is not fiifficient to overturn what has

been the conftant fettled Pra£lice; and there is the

greater Reafon that this Writ fhould be taken out and

granted with Caution, as it deprives the Subje£ls of

Nor where their Liberty: Neither ought it to be made Ufe of,

is' intireiy at wHcre the Demand is intirely at Law ; for there the

Law, in Re- plaintiff has FmI Bail, and he ought not to have dou-

garu there the , "— "^ . .

Plaintiff has blc Buil, both at Law and in Equity.

BaU.

Whereupon the Writ was fuperfeded, and the De-
fendant difcharged out of Cuflody.

Cafe Si. Anouymus.

Lord Chan-
«&r Talbot.

The Court A MotloH was made by the Attorney General to dif-
Tr thrfiHn'g -^ charge an Order of the Maifer of the Rolls for
3" ^^/^["^ filing an Original nunc pro tunc, to make good a ]udg-
a Judgment ment, after a Writ of Error brought.

on Error

brought, without feme Excufe for not filing one before ; though a flender Excufe may be fuf-

ficient.

On the other Side it was urged, that a Court of
Law, and much more of Equity, ought to favour
any Thing that tended to fupport a Judgment, which
muft be fuppofed to have been obtained for a juft
Demand ; and therefore at Law, if there is any MI-
ftake in a Writ of Error to reverfe a Judgment, let
the Miflake be never fo trivial, yet, it being to re-
verfe a Judgment, the Court will not amend it. [N].

Lord

[M] So held by the Lord King in the Cafe of Pakeman rerfus Coshy\
where, becaufe the Plaintiff had brought his Adion againfl: the Defen-
dant, and had Bail, the Writ was difcharged. Lad Seal after Hillary
Term, 1730.

[N] The Statute of 8 H. 6. for the Amendment of Records, is ex-
clufive of a Writ of Error, that going more in Reverf.il thaa in Af-
firmance

lii^ ' - J L" ■im.tua, ! f

De Term. S. Trlnitatis, 1754. 31^

Lord Chancellor: Though a flight Excufe might be
fufficient to induce me to make an Order for Leave
to the Plaintiff to file an Original nunc pro tunc, ftlll
fome Excufe there ought to be ; otherwife no Perfon
will file an Original, until he fhall have been forced (/;)
to it by a Writ of Error ; and this will be in a Manner
to give away the fmall Revenue of the Crown upon
original Writs, which the King's Courts ought not to
do. And thereupon his Lordftiip difcharged the Ma-
fter of the Rolls's Order for filing the faid Original ;
the Confequence of which was, that the Judgment was
reverfed upon a Writ of Error.

Pufey verfus Sir Edward Desbouvrie.

Cafe 82.

Lord Chan-
«//«;• Talbot.

CiR Edward Desbouvrie was a Freeman of London ^ and
^ poflefled of a very great Perfonal Eftate. He had
a Wife, with whom he had compounded as to her
cuftomary Part, and had a Son, (the Defendant) to
whom he had given very confiderable Sums of Money,
in Order to enable him to trade. He had alfo one
Daughter.

firmance of a Judgment -, and the Intent of the Aft was, to fupport
original Judgments, and to avoid Writs of Error. Cartb. 368, 520.
But there is a further Reafon to be given, why a Writ of Error is
in no Cafe amendable, becaufe it is the CommifTion to the Court,
9nd the Court cannot amend their own Commiffion. See Salkeld, 49,
Thompfon verfus Crocker. It may be likewife obfeived, as material to
this Purpofe, that, after In nullo eft erratum pleaded, the PlaintilF in
Error cannot have a Certiorari ex debito Juftitio' ; and as it is difcre-
tionary in the Court, they will award it in Order to affirm, but never
to reverfe a Judgment, or make Error. Salk. 26^, Carlton vafus Mor-
tagh.

(*) See Vol. I. 412.

2 The

3l6 De Term. S. Trinitatis, 1734.

Where a The Father made his Will, giving {inter at) to his
fprleman of Daughter 1 o,ooo /. upoH Condition, that ihe fliould
Lo'idon ac- relcalc her Orphanage Part, together with all her Claim
Legacf o^f or Right to his Perfonal Ellate by Virtue of the Cu-
10,000/. left fliom of the City of London, or othervvife, and made
Fa^the^ who hls Son Executor, his Daughter being about the Age
recommend- ^f twenty-threc Years.

ed It to her ■'

to releafe her Right to her Orphanage Part, which fhe does releafe accordingly ; if the Or-
phanage Part be much more than her Legacy, though fhe was told fhe might eleft which
{he pleafed ; yet, if fhe did not know, fhe had a Right firft to inquire into the Value of the
Perfonal Eftate, and the ^antuin of her Orphanage Part, before fhe made her Ele£Uon j
this is fo material, that it may avoid her Releafe.

After the Father's Death it was agreed between the
Daughter and her Brother, that file lliould accept of
her Legacy of 10,000 /. and upon the Terms whereon
it was given her by her Father's Will, that is, fhe to
releafe all her Right by Virtue of the Cuftom, <^V,
which Releafe was accordingly prepared, and before
fhe executed it, her Brother informed her, that fhe
had it in her Ele£lion to have an Account of her Fa-
ther's Perfonal Eftate, and to claim her Orphanage
Part, and her Uncle was then prefent. But the
Daughter at that Time declared, flie would accept of
the Legacy left her by her Father, that being a luffi-
cient Provifion for any young Woman ; and thereupon
flie executed the Releale, being then about twenty-four
Years old, and the Brother paid to her the io,oco/.
and Intereft. The Daughter afterwards married one
Mr. Vujey, an Attorney at Law, who brought a Bill
to fet afide this Releafe, charging, that the Perfonal
Eftate of which the Father died poftefled, was much
above 100,000/. the Daughter's Share of which by the
Cuftom would amount to upwards of 40,000/; that
the Mother having been compounded with for her cu-
ftomary Part, the Freeman's Perfonal Eftate was . to be
I dlftributed

De Term. S. Trinitatisy 1734. 317

diftributed as if there was no Wife, confequently the
dead Man's Part was one Moiety, and the Childrens
Part the other ; and that the Brother the Defendant,
Sir Edward Deshouvrie, had been advanced in his Father's
Life-time by his Father at different Times, with fe-
veral [O] great Sums of Money, the Whole whereof
would amount to a full Advancement of the Son : So
that the Plaintiff Pufey, in Right of the Daughter his
Wife, was intitled to a Moiety of her Father the Free-
man's Perfonal Eftate.

The Defendant the Brother pleaded this Releafe.

Againfl which, on Behalf of the Plaintiff, at firfl it
was argued, that as the Bill was brought to fet afide
this Releafe, the Defendant ought not to be admitted
to plead it in Bar, the Rule being, Non potefi adduci
exceptio ejufdem rei cujus petitur dijfolutio. But the Lord
Chancellor here interrupted the Counfel, faying, this
was every Day's Pra£lice ; and that otherwile no Re-
leafe or Award could be pleaded to a Bill that was
brought to fet afide the fame.

Then it was urged, that no Computation or Account
had as yet been taken of the Father's Perfonal Eftate,
and that it could not be imagined the Daughter intended

Vol. in. 4 M to

[O] With Regard to the Advancement of a Child, it has been deter-
mined, that fmall inconfiderable Sums occafionally given to a Child,
cannot be deemed an Advancement or Pare thereof. Thus Maintenance
Money, or an Allowance made by a Freeman to his Son at the Univer-
fity, or in Travelling, i^c. is not to be taken as any Part of his Ad-
vancement, this being only his Education, and it would create Charge
and Uncertainty to inquire minutely into fuch Matters. So putting out
a Child Apprentice, is no Part of his Advancement, for it is only pro-
curing tiie Maikr to keep him for feven Years inftead of the Parent.
Hender verfus Rofe^ at the Rolls, Trin. 17 i8. But the Father's buying
an Office for the Son, though but at Will, as a Gentleman Penfioner's
Place, or a CommilHon in the Army, thefe are Advancements pro taiito.
Norton verfus Norton^ Mich. 1692. by the Lords Commiffioners, Raw-
linfon and Hukhins.

5l8 Dc Term. S. 7rinitatis, 1754.

to prefent her Brother with 30,000/. or that (he
knew what her Right was : That fhe was not apprifed
that, by Reafon of her Mother's being compounded
with, the Childrens Share, inftead of a Third, was a
Moiety ; or that her Brother the Defendant being fully
advanced by his Father in his Life-time, this was a
a Bar to him of his Orphanage Part ; and though at
Law it was faid Ignorantia juris non excufap, yet if any
one fliould take Advantage of another's Miftake in the
Law, even without any fraudulent Suggeftion or Prac-
tice made ufe of by him, it would be againft Con-
If a Man de- fcience fo to do, and they put this Cafe : Suppofe A
in Feeto5. ^ould devife Lands to B. and his Heirs, and B. Hiould
who dies in ^\q in the Life of the Teftator, and then the Teftator
theTe'ftator, dies, after which the Teftator's Heir, not knowing that
and the Te- j^y L^^ fj^g Devife to B. is void, (by B.'s dying in the
taking it that Life of the Tcftator) fhould for a Trifle releafe his
the Heir of Rjpht to 2L Valuable Eftate, to the Heir at Law of

A. IS intitled, o riri i^ ij n.j

for a trifling fuch Deviiec ; uirely iuch Releaie would not itand
Sn'ctlJeys %^^^ i [P] ^^^ ^^ ^^ ^^'^s out of the Father's Power by
andconfirms Deviic or othcrwife to debar any of his Children of
him ; Equity f^^t Share which they are intitled to by Virtue of the
will relieve. Cuftom [Q_] : So here it was feme what hard in the
Father to induce his Daughter by any Words in his
Will, to give away and releafe what Ihe had an un-
doubted Right to J and admitting there was no direct

Fraud

[P] See the Cafe of Broderick verfus Broderick^ Vol. i. 239. where a
Devifce under a Will defeclively executed, reprefented the Will as duly-
executed, and for a fmall Sum gained a Releafe from the Heir ; the
Court fet afide the Releafe.

[Q_] It has been much queftioncd, whetiier a Freeman's Will can
any way operate on the Orphanage Part. Formerly it feems to have
been held, that a Freeman had a Power to appoint by Will, that if any
of his Children fliould die within Age, then fuch Child's Part fliould go
to the furviving Child or Children, i Lev. 227. Hnmand verfus J ones,
ruled by Kehng Chief Juftice, at Nt/i ptitis, and fuid by IVylde, Re-
corder of London, to have been fo adjudged in Chancery. But latterly it
has been admitted to be otherwife. See the Cafe of Je/on verfus E!/ing-
um, Pncedenls in Chancery, 207. la the Cafe of Biddle verfus Biddle,
2 heard

De Term. S. Tri^titatis, 1734. 3^9

Fraud or Mifreprefentatlon, here was, however, (/") fup-
prejjio vert, though not fu^geflio falfi ; and in this Gale,
lince it would not be pretended that the Daughter
could have meant to give away 30,000 /. to her
Brother, though he had afked for it, therefore this
Releafe ou"ht not to be made ufe of in a Court of
Equity to bar the Daughter of that Right which fKe
did not know ike herfelf had, and much lefs intended
to give away.

On the other Side it was faid to deferve Confidera-
tion, that the Father did by his Will give this Legacy
of 1 0,000 /. to his Daughter, upon Condition that fhe
fhould releafe all her Right by the Cullom ; and though
it could not be faid here was a pofitive Injunction on
the Daughter to do fo, yet in all Probability it was in-
tended as a Recommendation by the Father, who
might rhink 10,000/. a reafonable and honourable
Provifion for the Daughter, as Ihe herfelf declared fhe
thought it was, when Ihe gave this Releafe ; and the
Father might be defirous that his Son, who was to
fupport his Name, Ihould have the Reft of his Eftare :
That the Daughter might reafonably have a great Re-
gard for the Intentions of her deceafed Father, (for
which (lie was highly to be commended) and might
thereby be induced to comply with fuch Intention, at

the

heard before the Lord Parker^ Hill. 171 8. a Freeman having a Wife
and one Child, {inter aP) devifed the Orphanage Part to the Child, and
in Cafe of the Child's Dsath before twenty-one, then to go over to the
Teftator's Father ; and it was held that this Dsvife over was void, for
that the Father had nothing to do with the Child's Orphanage Part,
which came to him by the Cuflom, not from the Father •, and were
fuch Devife over to be good, it would be a Prejudice to the Child, who
(in Cafe there were but one Child) might devife over fuch Part at four-
teen, which would take Effeft, were the Child to die before twenty-one ;
or if he fliould die Inteftate and unmarried, it would go all to the
Mother as his next of Kin, and not according to the Father's Will j
or if the Child fhould marry and die within Age leaving Ifllie, the
Widow and Iflue would be deftitute, were lijch Will to be good.

(/) See the Cafe of Broderick verfus Broderick ubi fupra.

320 De Term. S. Trinitatis, 1734.

the fame Time that fhe knew in ftri£l Juftice there
was more due to her by Virtue of the Cuttom.

That however it was plain the Brother had a£led in
this Cafe without the leaft Appearance of Fraud, when
he told her, before fhe executed the Releafe, that flie
might, if fhe pleafed, call him to an Account for the
whole Perfonal Eltate of her Father, and have her Or-
phanage Part thereof: That this being the folemn A61
and Deed of the Party, executed by her freely and
without any Sort of CompuKion or Mifreprefenta-
tion, and in Compliance with her own Father's Will ;
and fince, if the Daughter was not informed of the
Cuftom of London, it was her own Fault, and not her
Brother's ; for thefe Reafons it was faid the Deed of
Releafe ought not to be fet alide.

Lord Chancellor : I do not fee that any Manner of
Fraud has been made ufe of in this Cafe, but ftill it
feems hard, a young Woman Ihould fuffer for her Ig-
norance of the Law, or of the Cuftom of the City of
London ; or that the other Side fhould take Advantage
of fuch Ignorance. I remember well, that in this very
Cafe where the Wife has been compounded with as to
her Cuftomary Part, not only the Counfel have dif-
fered, but the Court themfelves have varied in their De-
terminations. It has for Inftance been held and deter-
mined by the Court, that if the Huiband, a Freeman
of London, has compounded with the Wife before the
Marriage as to her Cuftomary Part, this being the
Huftjand's own Purchafe, he ought to have as well his
Freeman of Wife's Cuftomary Part as his own : But now a dif-
z.on</»n com- ferent Refolution feems to have prevailed, (iv^.) that
h?s"wife'^for where the Wife is compounded with before Marriage,

her Cuftom-
ary Part before Marriage; it fhall be taken as if no Wife, and the Hufband flialPliave one
Half of the Perfonal Eftate in his own Power, the Children the other Half,

I it

De Term. S. TrinitatiSy 1754. 32.1

it fhould be taken, as If there was no Wife, and con-
fequently the Teftator fiiall have one Half, and the
Children the other (k). And if the Court themfelves
have not, till very lately, agreed in what Shares or
Proportions thefe cuftomary Parts fhall go, the Daugh-
ter, furely, might be well ignorant of her Right, and
ought not to fufter, or give others any Advantage, by
fuch her Ignorance. Neither can it be inferred with
fufficient Certainty, what the Father recommends in
this Cafe : He rather feems to leave it to his Daugh-
ter's Option, either to claim her cuftomary Part, or
releafe her Right thereto, and accept the Legacy.

It is true, it appears, the Son the Defendant did in-
form the Daughter, that (he was bound, either to
waive the Legacy given by the Father, or to releafe
her Right by the Cuftom ; and fo far fhe might know,
that it was in her Power to accept either the Legacy,
or Orphanage Part ; but I hardly think fhe knew llie In what
was intitled to have an Account taken of the Perfonal ^"""icaf-
Ertate of her Father, and firft to know what her Or- ing ought to
phanage Part did amount to ; and that, when flie fhould of his R^htj
be fully apprifed of this, then, and not till then, fhe f" ^s to be
was to mak~e her Eleftion, which very much alters the fuchReicafe;
Cafe ; for probably llie would not have ele6led to ac-
cept her Legacy, had fhe known, or been informed,
what her Orphanage Part amounted unto, before Ihe
waived it, and accepted the Legacy.

It would give Light into this Caufe, to know what
might be the Value of the Father's Perfonal Eftate at
his Death, and (if the Parties think fit) what was the
Value thereof, when the Will was made j becaufe it
has been faid to have been increafed by the Father be-
tween the Time of making his Will and his Death ;

Vol. III. 4 N and

{k) See the Note at the Bottom of Page 644 of Vol. i. where this
Ofe is msntioned.

322, De Term. S. Trinitatis, 1734.

and alfo to know, what the Son has received in his
Father's Life-Time from his Father, for or towards his
Advancement.

Therefore let the Plea ftand for an Anfwer, favlng
the Benefit thereof until the Hearing ; and let the De-
fendant the Son anfwer, not as to Particulars, (for that
I do not expe£l) but by way of Computation in grofs,
as to thefe Points. [R]

Cafe 83. Hajle-wood verfus Pope,

Lord Chan-
cellarTslhot.

N this Caufe the following Points were decreed by
the Lord Chancellor :

If I devife Firfl^ If one devifes all his Lands, Tenements, and
aKedt Hereditaments \n Dale, and the Teftator is feifed in
laments in Fee of a Mauor in Dale, fuch Manor, being an Here-
havc'a^Ma- ditameut in Dale, would pafs by this Will ; though,
nor ill £»<7/r; perhaps, it might be a Doubt, if a Man has Lands,
as it is an and alio a Manor in Dale, of which the Lands are not
Heredita- parcel, whether by the Devife of all his Lands in Dale,
Dale, will his Mauor will pafs.

pafs ; but if

I have the Manor in Dale, and alfo Land there, not Parcel of the Manor, it is a Qiteftion,

whether the Manor will pafs.

If I have Secondly, If a Man devifes all his Lands, Tenements,
CopJ-i'"''^"'^ Hereditaments in Dale, in Truft to pay his Debts
Lands in and Legacies, and the Teftator has fome Freehold and

Dale, and

devife all my Land and Hereditaments in Dale to pay my Debts ; only my Freehold (ball

pafs, if that be fufficient ; fecus, if I have furrendcred the Copyhold to the Ule of my Will.

[R] It appears from the Regifter's Book, that on the 8th of May
1 73 5' "pon the Defendant's Motion it was alleged, that the Suit was
agreed between the Parties; it was therefore prayed, that the Plaintiff's
Bill might be difmiffed without Cofts-, which, on Content of the Plain-
tiff's Counfel, was ordered accordingly.

I fome

De Term. S. Trinitatis, 1734. 32.3

fome Copyhold Lands, there, only the Freehold Lands
ftiall pals ; for his Will muft be intended of fuch
Lands and Tenements, as are devifable in their Na-
ture. Secus^ if the Teftator had furrendered his Co-
pyhold Lands to the life of his Will, becaufe this
fliews he did intend to devife his Copyhold. But
even in the firft Cafe, if the Freehold were not fuffi-
cient to pay his Debts, when the Teftator devifes all
his Lands in Truft to pay his Debts, it feems, rather
than the Debts ihould go unpaid, that the Copyhold
Ihall in Equity pafs, (/)

Thirdly, If a Man devifes his Lands to Truftees toO"e Jevifes
pay all his Debts, and dies indebted by Specialty and Edat'e m^
limple Contrail, and the Bond Creditors recover Part y."""*^ '° P'''^
of their Debts out of the Perfonal Eftate, and after- the Bond
wards they apply to be paid the Reft of their Bond ^^^'J^p^l^^}
Debts out of the Real Eftate devifed for that Purpofe ; their Debts
in this Cafe, as the Teftator intended all his Creditors pe'fo°nai e-
ftiould be equally paid their Debts, the Bond Creditors ftate; the
fiiall not come in upon the Land, until the fimple tS' Debt"*
Contrail Creditors have received fo much thereout, as flia" be e-
to make them equal, and upon the Level with the Bondo,jt of tj'e
Creditors, in Refpeil of what they received out of the ^^^^ ^-'^-'e
Perfonal Eftate. And this the Lord Chancellor faid. Bond Debts,
was what the Mafter of the Rolls had very riehtly de- ^^^^ '''<= ^°"*^

. , J O J Creditors

creed on great Conlideration. [m) ftaii have

Nothing
thereout, until the fimple Contraft Creditors fliall have received as much from the fame, as
(hall make them equal in Payment with the Bond Creditors.

Fourthly, Where one gives a fpecifick, or even a ^"/ ^f^''*^

• T 1 J T I J U- T^ I of Lands to

pecuniary Legacy, and deviles Lands to pay his Debts; pay Debts, a

Legatee,
whether fpecifick or pecuniary, (hall be paid out of the Lands, if the fimplc ContraiSl Cre-
ditoii havL- exhaufted the Perfonal Eltace.

(/) See the Cafe of Drake verfiis RobinfoHy Vol. i. 443. the like
Rdblution.

(?») Ti;is feems to have been the Cafe of Deg verfus D:g. See Vol.
2. 416.

3:4 ^^ Term. S. 7rinitath, 1734-

if a fimple Contraft Creditor comes upon the Perfonal
Eftate, and exhaiifts it fo far, as to break in upon the
fpecifick or pecuniary Legacy, thefe Legatees lliall
ftand in the Place of the Creditors to receive their Sa-
tisfaftion out of the Fund raifed by the Teftator for
the Payment of their Debts. But,

If one owes Yifthly^ Whcrc a Man dies indebted by Bond, and
Bond, and Icavcs a Perfoual Eftate, and devifes Lands to J. S. in
devifes his pgg ^^^ p'^.gg fpecifick Legacics, and the Creditor

Lands to /. ' c> r , O ' • j i •

s. in Fee, by Bond comes on the Perional Eltate to be paid his
fpedfick Le- Kond J the fpecifick Legatees ftiall not ftand in the
gacy, and Place of thc Bond Creditor, to charge the Land devi-
Sd'credi- fed, becaufe the Devifee of the Land (») is as much
tor comes ^ fpecifick Dcvlfee, as the Legatee of a fpecifick

upon the fpe- '^ -

cifick Le- Legacy.

gacy for Pa)'-

ment of his Debt ; the fpecifick Legatee fliall not ftand in the Place of the Bond Creditor,

to charge the Land, and why.

One devifes Lafily, (And which was the principal Point ) One
nStit bequeathed all his Perfonal Eftate to his Daughter,
hisDaugh- then an Lifant of about Seventeen, making her Exe-
hlsReai E- cutrix, and devifed all his Lands, Tenements, and He-
ftate to Tru- reditamcuts in Dale, to Truftees, in Trutt to pay his
to pay Debts, Dcbts and Legacies, and gave the Surplus of his Lands,
^'•. ^'=' after Payment of his Debts, to his Daughter in Tail,

mainder to . •/ ' °

his Daughter Remainder over.

in Tail, Re-
mainder over ; the Perfonal Eftate fliall in the firft Place be all applied to pay the Debts.

Hereupon it was infifted, that the Daughter ftiould
have the Perfonal Eftate exempt from the Debts, and
that the Land which the Teftator devifed to pay his
Debts, fliould be firft applied to that Purpofe; for
which was cited The Abridgment of Cafes in Equity, 271,
Adams verfus Aleyrick, a- ftrong Cafe ; and likewife a
I Cafe

(«) See the Cafe of Clifton verfus Burl, Vol. i. 678.

De Term. S. Trinitatts, 1734. 32.9

Cafe decreed at the Rolls, 20th Nb-y. 1722, Bmdnox
verfus Gratrpick, where a Man charged his Lands with
the Payment of his Debts, and gave feme Ipecifick Le-
gacies, together with the Reft of his Perfonal Eftate,
to his Brother ; in which Cafe, forafmuch as the fpe-
cifick Legacies would be exempt from the Debts, as
betwixt the Devifee of the Land and the fpecifick Le-
gatee; fo the Court declared, they could not fever the
fpecifick Legacies from the Reft of the Perfonal Eftate ;
and lince the Teftator equally intended, that the Re-
fiduary Legatee fliould have the Reft of his Perfonal
Eftate, as the fpecifick Legacies, therefore all the Per-
fonal Eftate was held to be exempt from the Debts.

Lord Chancellor: The Perfonal Eftate is the (0) natural Exprefs
Fund for Payment of Debts, and which as againft Cre- Wordl'tan-
ditors, unlefs they pleafe, the Teftator cannot exempt; '^'^^j;"'^'^'^
but againft the Devifee of his Land he may, by appro- exempt the
priating his Land as a Fund for Payment of his Debts ; ^J^^"f^^'
but even in that Cafe, according to the general Rule, Payment of
there ought to be exprefs Words to exempt the Per- ^'^''"'
fonal Eftate from the Debts, or at leaft Words very
plainly ftiewing this to have been the Intention of the
Teftator. Here the Teftator gives his Perfonal Eftate
to his Executors, which is no more than the Law
does, and is like giving the Real Eftate to the Heir,
v/hich is void. But what I chiefly ground my Opinion
upon is, that here the fame Perfon is Devifee of the
Perfonal, and alfo Devifee of the Surplus of the Real
Eftate, in Tail ; and I cannot think it was the Liten-
tion of the Teftator to exempt his Perfonal Eftate
from his Debts, for no other Reafon, but that his
Daughter might difpofe thereof by her Will under her
Age of IXventy-one, on Purpole to leave the Real
Eftate of rhe Teftator, and which was fettled on her-
felf in Tail, the niore incumbered.

Vol. III. 4 O London

326 De Term. S. TrinitatiSy 17^4.

afe84. J^ondon Jlffurance verfus Eaji India
Sri't. Company,

jr-' I 'HE Solicitor General moved to difcharge a De-
,, -■- murrer to Part of the Plaintiffs Bill, endea-

If a Demur-
rer be to
Part of the

Plaintiff's vouring to ifiew it was a frivolous Demurrer ; and
infuffic"ent^" ^^^U thougli it was but to a fmall Part only of the
1,"Rcr>d!°e-^^^^' and notwithftanding the Anfwer to the Reft of
yetthePiainl the Bill vvas moft apparently infufficient ; yet this De-
tiff cannot j^jjj-jgj. ^^j^j-jj arsLied, would ftop the Plaintiffs from put-

except, until , , ' " . r ^ • r rr •

the Demur- ting in any Exceptions to the Defendants infufficient
rucd^ ^'' Anfwer ; that no more was defired, than to have
Leave to put in Exceptions to the Anfwer to the other
Part of the Bill, otherwife the Plaintiffs might be de-
layed from getting an Anfwer, till the Demurrer Ihould
be argued.

Lord Chancellor : y^ttt this Res integral I can fee no
Reafon why, where the Defendant demurs to Part
only of the Plaintiff's Bill, this fhould ftay the Plain-
tiff's putting in Exceptions to the Defendant's Anfwer,
as being iniufficient, to another diftin£l Part of the
fame Bill. Indeed, if there was any Colour to doubt
how far the Demurrer extends, it might be reafon-
able, that the Mafter fhould not take upon himfelf
to determine the Qiieftion, or to proceed upon the Ex-
ceptions to the Anlwer. However, feeing the Courfe
ot the Court is otherwife, I will not alter it, efpe-
cially in this Cafe, where it appears, the Plaintiff has
delayed himfelf by obtaining four feveral Orders to
amend his own Bill ; and it not being pretended,
that there is any Irregularity in putting in the De-
murrer ; if there be the lealf Doubt touching the Va-
I , lidity

De Term. S. Trinitath, 1734- 32.7

lidity of the Demurrer, the Plaintiff ought to fet it
down to be argued, and not come to have it difchar-
ged upon a Motion, or to go into the Merits. [S]

[S] But if to a Bill the Defendant anfwers as to Matter of Difcovery,
and pleads only as to Relief, the Plaintiff may except to any Matter of
Difcovery before the Plea argued ; for that plainly no Matter of Difco-
very is covered by the Plea. So ruled by the Mafter of the Rolls on a
Motion to difcharge the Exceptions, and Mr. Vernon, who was for the
Motion, did afterwards admit the Courfe of the Court to be fo, 14th of
December, 1719. Note alfo, the Lord Parker fome Time before ruled
it in the fame Manner.

D E

3i8

D E

Term. S. Michaelis,

1734.

Cafe 85. Charlton ^ al\ Creditorsl^y. . .re
X?Z. of Samuel U^, deceafed^^^'''^^^^'

Defendants.

Sufannah Low, Sifter and
Admin'tftratrix of the
faid Samuel Lov), and
others, being a Mortga-
gee, and a Judgment
Creditor of the faid Sa-
muel Low,

Onepofl-effed ^JLJenRY Lotp, the Father of Samuel, purchafed a Term

of a Term J I r tr •iTi-y-^n- i

for iGoo or 1 000 Years in the Lands m QLieition, and

Years, arti- agreed to give a full Confideracion for the Inheritance ;

cles to pur- 111 i

chafe the In- whercupon the Vendor Covenanted to procure a Convey-
and by Will ^^^^ ^° ^^ ^^^^ thereof to the Vendee and his Heirs.

gives 3000 /. to his Daughter, and makes his Son Executor, and dies ; the Son afligns the
Term in Truft to attend the Inheritance, of which he takes a Conveyance in his owa
Name. Afterwards the Son acknowledges a Judgment to J. and mortgages the fame Lands
to 5. and dies infolvent; J. fhall firft be paid his^Judgment, then B. (hall be paid his Mort-
gage, and then the Daughter (being Adminiftratrix to her Brother) is intitied to her Legacy
of 3000 /. in Preference to the fimple Contrad Creditors.

2 Henry

De Term. S. Michaelis, 1754. 519

Henry Love, the Father, died before the Conveyance
made, having by his Will given to his Daughter, the
Defendant Sujannahy a Legacy of 3000/. and left Sa-
muel, his eideft Son, Executor. Samuel, the Executor
and Heir, afligned the Term in Truft to attend the In-
heritance intended to be by him purchafed, and after-
wards took a Conveyance of the Inheritance to him-
felf. Subfequent to this, Samuel confefled a Judgment
to one of the Defendants, and made a Mortgage of
the Inheritance to another of the Defendants, without
taking any Notice, or making any Adignment of the
old Term of 1000 Years, and died infolvent.

The Qtieftion was, whether Sufannah the Legatee of
the 3 000 /. and who was the Adminiftratrix of Samuel
Lorn her Brother, was intitled to a Satisfa6lion for her
3000/. out of this Term of 1000 Years, in Prefe-
rence to the other Incumbrancers ; and to have it con-
sidered as equitable Affets of Lom the Father, notwith-
ttanding the Affignment made by the Son in Truft to
attend the Inheritance. Or, whether the Judgment
Creditor and Mortgagee fhould have the Benefit of this
Term, as conne6led with the Inheritance by the Af-
fignment that had been made thereof, to attend the
fame ?

It was infifted for Sufannah the Legatee, that the
Affignment by the Son, though it palled the legal In-
tereft, fo as to prevent its remaining AlTets at Law,
yet it did not take away the Right of the Legatee,
who had a prior Demand thereon, and was at Liberty
to follow thofe AfTets in Equity, unlefs aliened for a
valuable Confideration, and without Notice ; that if
Samuel had purchafed the Inheritance without ha-
ving affigned the Term, fuch I'erm would not
have been merged, becaufe he would have had it

Vol. III. 4 P . in

330 De Term. S, Michaelis, 1734.

in (a) autre droit ; and this Affignment, being only in
Truft for himfelf, (hould have the fame Confideration
as if it had continued in the Father.

Ij)rd Chancellor : It is obfervable, that the Teftator
Benry Low the Father had in EfFeft purchafed the In-
heritance, and the Son obtained a Conveyance of the
Inheritance, in Conformity only to the Father's Inten-
tions. The Term, by this Affignment made of it by
Samuel the Son, is become not AiTets at Law; for
which Reafon the Legatee cannot purfue it fpecifically,
but muft have her Satisfadion, as for a Devafiavit, out
of the Executor's Affets ; for as this Cafe Iknds, the
legal Intereft of the Term being in Truft for the Mort-
gagor at the Time when the Mortgage of the Inheri-
tance was made, it was fo far a Fraud upon the Mort-
gagee, as it was concealed from him ; and the Truftees
of this Term of looo Years, which was affigned to
attend the Inheritance, became Truftees for the Mort-
gagee of the Inheritance. Nay, a Term afligned in
A Term af- Truft to attend the Inheritance will, in Equity, follow
&orinaU the Eftates created thereout, and all the Incum-
Truft to at- brauces fublifting upon fuch Inheritance ; and is fo
Eitance," conne£led with it, that Equity will not fufter it to be
{hall, in E- fevered to the Detriment of a bona fide Purchafer, who
all' theV^ ftiall have the Benefit of all Intereils which the Mort*
ftatescreated pagor had at the Time the Mortgage was made, unlefs

out of It and ~ o do '

all incu'm- agaiuft an intermediate Purchafer without Notice.

brances fub-

fifting upon it. But the Term being by this Means become not Aflets at Law, the Executor

who affigned the fame, is liable to the Creditors as for a Deva/iavit.

Therefore the Judgment-Creditor of the Mortgijgor

muft be firft fatisfied, according to the Priority of

Liens affe£ling the Real Eftate ; in the next Place the

Mortgagee. And as the Eftate is to be fold for the

4 Satisfaction

{a) Suppofing it lo merge, it would occafion a Dri;ajlavit. 8 Co.i^C.
I JnJ}. 26^. i. 338.^. ^

De Term. S, MichaeliSy 1734. 531

Satisfaftion of Creditors, though the Sifter who Is Ad-
miniftratrlx of her Brother Samuel, claims a Debt but
fey fimple Contra£l, on Account of the Devaftavit ;
yet having a Right, as Adminiftratrix, to retain againft
all Creditors in equal Degree, ftie fliall confequently
retain her Debt prior to all the limple Contrad Cre-
ditors of her Brother.

Cafe 86.

Lord Chan-

Ann Knight, Widov) of 7^^ . ..rr
Jacob Knight, deceafidX ^^^^^^^' tt?Zt.

John Knight, Efq; e/deft^

Son of f aid Jacob ^///gZ^r ^Defendants.
and others, j

'T^HE Bill was brought by the Plaintiff, the Widow ;fj^J°^^;

-*- of the faid Jacob Knight, againft the Defendant himrdf and
John Knight, as eldeft Son and Heir of the faid Jacob ^^Xt]o\n.
Knight, in order to compel him to rebuild and finifti ture Houfe
theVlaintiff"'s Jointure-Houfe, and to make Satisfaaion f^'"j ut"
for the Damage which Ihe had fuftained for want of '■> theSettie-
the Ufe thereof; and fet forth, that upon the Mar- jointrefs
riage of the Plaintiff, by a Settlement bearing Date ^""ss a Bill
the 1 oth of February 1 7 i o, Jacob Knight, the Defen- Hei" for a

dant's Father, fettled the Capital Meftuage in to- ^^'^"'"^^

gether with Lands of 400 /. per Annum, in the County Defendant
of Glocefter, to the Ufe of himielf for Life without ^^^7^;^;!°;
Wafte, Remainder to the Ufe of his Wife for Life, ecutor oudu
Remainder to the Ufe of the l^rft, t^c. Son of the\°^jXiZ
Marriage in Tail Male fucceflively, with Remainders that though
over : That by the faid Settlement the Defendant's Fa- cre^d'toV''^

may fue the
Heir only, where the Heir is exprefly bound; yet as the Perfonal Eftate is the natural Fund
to pay all Debts, and as the Executor may make it appear that he has performed the Cove-
nant, the Executor muft be made a Party in Equity.

. ther

552. De Term. S. Michaelis, 1754.

ther Jacob Knightj covenanted for himfelf and his Heirs,
with his faid Wife's Truftees, that the Capital Meffuage
and Premifles fhould remain to the Ules in the Setrle-
inent, without any Aft done, or to be done, by the
faid Jacob Knight to the contrary : That the faid Jacob
Knight^ the Defendant's Father, did fome Time after-
wards pull down great Part of the faid Capital Mef-
fuage ; and that he had Iflue by the Plaintiff the De-
fendant his eldeft Son ; and that he afterwards died,
leaving real AfTets of great Value to defcend to his Son
the Defendant ; and that the Plaintiff after her Huf-
band's Death, the faid Capital Meffuage not being in-
habitable, was forced to hire another Houfe for her
Habitation ; and therefore brought this Bill to compel
the Defendant to rebuild or repair the faid Capital
Meffuage j and likewife that fhe (the Plaintiff) might
be recompenced in Damages for what (he had fuffered
by being forced to hire another Houfe in Lieu of her
Jointure-Houfe.

As to fuch Part of the Bill, as prayed that he (hould
rebuild or repair fo much of the faid Capital Meffuage
as his Father had pulled down as aforefaid ; or which
fought to be repaired in Damages for want of the Ufe
thereof J and in Refpe6l of the Plaintiff's being forced
to hire another Houle in its Stead : The Defendant de-
murred, and for Caufe fhewed, that there was no
. Executor or Adminiftrator of the Plaintiff's late Hiif-
band brought before the Court by the Bill, or made
a Party thereto.

Upon the Demurrer's coming on to be argued be-
fore the Lord Chancellor, it was obje£led, that at Law,
in the Cafe of any Demand where the Heir is exprefly
bound, the Creditor has an Eleftion to fue the Heir
alone, or the Executors or Adminiilrators of the
Debtor 5 and if it be fo at Law, the fame Rule might
4 well

De Term. S. Michaelis, 1734. 353

well be allowed to pre\^ail in this Coiirr, which ought
not to put the Creditors upon the Difficulty of hunt-
ing after Perfonal AlTets, not recoverable, in all Pro-
bability, without Charge and Expence of Time ; and
therefore, as the Heir was liable alone to aniwer this
Debt at Law, fo he ought to be in Equity, and might
reimburfe himfelf as well as he could, by fuing the
Executors or Adminiftrators of the Debtor in order
thereto.

Sed Curia contra : It is true that at Law the Cre-
ditors may fue the Heir only, where he is exprefly
bound, but Equity is otherwife ; on the contrary,
in Equity, the Creditors may fue both the Heir and
the Executor, which they cannot do at Law ; fo that
the Rules of Law and Equity are different. The na-
tural Fund for the Payment of Debts is the Perfonal
Eftate, and this ought to go in Eafe of the Land. Ic
does not appear in the principal Cafe, but that the
Executor or Adminiftrator [a] may hav^e made Sa-
tisfa6lion to the Plaintiff for the Breach of this Cove-
nant, which the Executor, ^c. might have difclofed
to the Court, had he been Party to the Bill.

[A] In a Bill brought by a Mortgagee againft the Heir of a Mort-
gagor to foreclofe, it was objefted, that the Executor of the Mortgagor
ought to be a Party, becaufe it did not appear but that he might have
paid the Debt. But by the Matter of the Rolls, (in the Abfcnce of
the Lord Chancellor,) and Goldsborou^h the Regifl:er, there is no NecelTity
for making the Executor of the Mortgagor a Party ; becaufe the Bill
being only to foreclofe the Equity, the Plaintiff" need only make him
a Party that has the Equity, (viz.) the Heir, and the Courfe is fo.
Neither is the Plaintiff" the Mortgagee any ways bound to intermeddle
with the Perfonal Eftate, or to run into an Account thereof; and if
the Heir would have the Benefit of any Payment made by the Mort-
gagor or his Executor, he muft prove it. Duncomb verfus Kanjley^
PafchiS 1720. So note the Diverfuy between the Cafe above reported of
Knight verfus Knight, and this laft ; for there the Bill was to recover of
Satisfaftion in Damages for want of Repairs, i^c. and the Perfonal
Eftate is the natural Fund for that Purpofe : But here the Bill was not
to recover the Debt, but only to bar the Equity of Redemption.

Vol. in. 4 Q_ Now

334 -^^ Term, S. Mlchaelis, 1734.

Jf E uirde- "^^^ ^^ Court of Equity In all Cafes delights to do

lights to do compleat juftice, and not by Halves; As firft to de-

jufti'cerand crce the Heir to perform this Covenant, and then to

not by put the Heir upon another Bill againit the Executor to

to^ make a reimburfc himfelf out of the Perfonal Affets, which

i^f"«= f-- for ought appears to the contrary, may be more than

Heir, and to fufficicnt to anfwer the Covenant ; and where the

SuT?or°him Kxec^tor and Heir are both brought before the Court,

againft the compleat Juftice may be done, by decreeing the Exe-

Executor, ^utor to perform this Covenant as far as the Perfonal

' Aflets will extend ; the Reft to be made good by the

Heir out of the Real AiTets. And here appears no

Difficulty or Inconvenience in bringing the Executor

before the Court. On the contrary it would prevent

a Multiplicity of Suits, which a Court of Equity (^)

ought to do, wherefore allow the Demurrer.

Cafe 87- Slanntng & at verius Style y e contra.

Lord Chan-
«//»r Talbot. ^^

One by Will l?OBERT Style had a Wife by whom he had no
gives all his '*-^ Iflfue, and had three Sifters, (vi^.) the Plaintiff*
Goods°and Elizabeth, Wife of the Plaintiff" Slanningy the Plaintiff"
Implements ^„„^ Wife of the Plaintiff" Fellings and the Plaintiff
The Malt, Hannah Style, Splnfter. This Robert Style made his Will
Hops, Beer, jjj Mavch 17^2, aud being feifed in Fee of fome Real

Ale, and o- • i i -H r

therViauaisEltate, particularly a Farm or 200/. per Annumy
rno"paf!;(^^'hich he kept in his own Hands) and poffeff"ed of
but the a very plentiful Perfonal Eftate, deviled to his Wife
fixed to the' 3 ^ ^' P^^ Anniim for her Life, charged on his Real
Houfe, ftiaii Eftate, and devifed alfo to his Wife an Annuity of
notVheGuns 4° /• per Annum for the Life of her Mother, charged
*'f-d '^°Arm^ "P"" the Refidue of his Perfonal Eftate, payable quar-
in riding, terly. l"he Teftator bequeathed to his Wife his Silver
Gailir''"^ Coffee-Pot and Silver Tea-Pot, with divers other fpeci-
"* ■ 1 • fick

{b) See ant' 157.

De Term. S. Mhhae/is, 1754. 339

fick Pieces of Plate, to hold to her for Life, and after
her Deceafe the fame to go to his Godfon Robert
Style. He alfo by his Will gave the Defendant his
Wife his Tea-Table, Tea-Kettle, and all his Pewter,
Brafs, Linen and Woollen, with all his Houlhold Goods
and Implements of Houfhold whatfoever in or about
his Dwelling-HoLife, to be at her Difpofal. All his
Stock of Corn, and the Refidue of his Perfonal Eftate,
he gave to his faid three Sifters, equally to be divided
betwixt them, and made them Executors.

The three Sifters and their Huft)ands brought their
Bill againft the Widow, for divers Goods of the Tefta-
tor detained by her, w^hich were not given her by the
faid Will ; and the Widow preferred her Bill for Goods
detained by the Executors, and which (as was alleged)
ftie was intitled to by the Will.

And firft, the Defendant the. Widow claimed the
Malt and Hops in the Houfe, likewife all the Beer and
Ale therein, together with the Guns, Piftols and the
Clock ; infifting that thefe were intended by the Be-
queft of the Houftiold Goods and Implements of
Houftiold ; that they were Goods in the Houfe, and
neceflary for the Maintenance of the Family.

Lord Chancellor : Thefe Things which are Viiluals,
and whofe Ufe is in their Confumption, cannot in
their common, natural Senfe be taken to be Houftiold
Goods, and pafs under that Denomination ; therefore
they do not belong to the Widow, but ought to be
delivered over by her to the Executors the Refiduary
Legatees ; neither will the Guns and Piftols that were
in the Houfe, if ufed in riding or fliooting of Game,
pafs to the Widow by the Words Houflyold Goods ;
though thefe may in fome Senfe be. faid to be for
the Defence of the Houfe j but the Clock in the Houfe,

55<J De Term. S. Michae/is, 1 7 54.

if not fixed thereto, fhall be included within the Words
Where the Hou/Jjold Goods. Moreover the Widow, as to the Things
UfeofGoods J uie whereof is given her for Life, nuift fign an In-

IS given to ^ o _ ' o

one for Life, vcntory exprcfling thefe Things to be in her Culiody,
uf( {6r"ufe ^s given to her for Life only, and that afterwards they
muft fign an are fo bc delivered, and remain to the Uie and Bcne-
expreffi![g' fit of the GodfoH Robert Style.

that he is in-
titled to thefe Things for his Life, and that afterwards they belong to the Perfon in Re-
mainder. See Vol. I. Cafe i.

The next Qiieftion was, touching the Annuity of
40 /. per Annum given by this Will to the Widow for
her Mother's Life, charged upon the Refidue of the
Perfonal Eftate ; and here, forafmuch as the Perfonal
Eftate was liable to be in a fhort Time wafted, (pofli-
bly by the Hufbands of the Wives to whom the I'efta-
tor gave the Relidue) and the Widow by that Means
to be deprived of the Benefit of this Annuity, which
the Teftator intended fhould be duly fecured, and paid
to her quarterly for her Maintenance in all Events ;
therefore it was infifted, that the Hufl^ands of the
Wives fhould give fome Security for the Payment of
the fame.

Againft which it was faid, that there was no Rea-
fon the Executors, whom the Teftator thought fie to
intruft without putting Terms on them, fhould be
compelled to give any Security to the Widow ; but
that, as he had freely intrufted them, fhe fhould do fo
too, efpecially in this Cafe, where it did not appear,
that they or their Hufbands had committed any Man-
ner of Imbezilment or Converfion of the Goods.

Where the Lovd Chancellor .' Generally fpeaking, where the Te-
wiiidoes flator thinks fit to repofe a Truft, in fuch Cafe, until

not require, r ' '

that the Executor fhall give Security, it is not ufual for the Court to infift on it, until fome
■Vlilbehaviour ; but where one by Will charged the Refidue of his Perfonal Eftate with 40/.
per Annum to his Wife, to be paid quarterly, the Executor was ordered to bring before the
Maft«r fufEcient in Bends and Securities to be fet apart to (ecure this Annuity.

2 fpme

De Term. S. Michaelis, 1754. 337

fome Breach of that Truft be fhewn, or at leafl: a
Tendency [B] thereto, the Court will continue to in-
truft the lame Hand, without calhng for any other
Security, than wdiat the Teftator has required : But
here the Teftator himfelf has charged the Refidue of
his Perfonal Eftate with this Annuity, which he plainly
intended ftiould be duly and quarterly paid; and as
this Eftate appears to conlift of fome Bonds or Secu-
rities, let fuch Part thereof be brought before the Ma-
iler, as may be fuflicient to preferve this Annuity of
40 /. per Annum for the Widow.

Another Thing infilled upon on Behalf of the De- An Huftand
fendant the Widow was, that the Teftator allowed h^sl^P^^^^^'^
firft Wife to difpofe and make Profit of all fuch But- Marriage,
ter, Eggs, Poultry, Pigs, Fruit, and other trivial Mat- wlfe,^ for
ters ariling from the faid Farm, (over and befides what ^^"^ M^ate
was ufed in the Family) for her own feparate Ufe, profit of all
calling it her Pin-Money ; and upon the Death of the ^""'^'^p; ^
firft Wife, and until the Teftator married the Defendant PouitVy and
Style, the Teftator's Sifter the Defendant ?elling kept ^^';;j''^^J; j^
his Houfe, and had the fame Allowance, which was uf^d in the
alfo continued to the Defendant the Widow, after her ^^ 'J^^'j^ the
Marriage, by way of Pin-Money ; and it was proved in wife faves
the Caiife, that her Hulband, whenever any Perfon the Hi^fband

borrows, and
dies ; the Court will allow this Agreement, to incourage the Wife's Frugality, and the Wife
fhall come in a Creditor for this lool. efpecially there being no Defeft of Affets to pay
Debts.

[B] See Vol. 2. 163, Batten verfus Earnky. And yet we find, that
the Spiritual Court has fometimes refufed to grant the Probate of a Will
to an Executor, who has been reputed a Perfon of no Subftance, and
abfconded for Debt, until he fhould give Security for a due Adminiftra-
tion of the Afiets ; under Pretence, that the Legacies, which were confi-
derable, were in Danger of being loft •, and that they might as well
rejeft an Executor, where he declines giving fuch Security, as where he
refufes to take the Oath of due Adminiftration, which is the common
Praftice. But the Court of King's Bench has in fuch Cafe inforccd the
Granting of the Probate by a peremptory Mandamus. From the Au-
thor's Manufcript Report of the Cafe of The King verfus Raynes. See
alfo Salk. 299. S. C.

- Vol. III. 4 R came

338 De Term. S, Mich ae lis, 1734.

came to buy any Fowls, Pigs, if/c. would fay, he had
Nothing to do with thofe Things, which were his
Wife's ; and that he alfo confeffed, that having been
making a Purchafe of about i ooo /. Value, and want-
ing fome Money, he had been obliged to borrow lOoA
of his Wife to make up the Purchafe Money ; there-
fore now the Widow claimed to be paid this i co /.

To which it was anfwered, that here was no Deed
touching this Agreement, nor any Writing whatfoever,
whereby to raife a feparate Property in a Feme Covert,
which was what the Law did not favour ; that it was
no more than a Connivance or Permiffion, that the
Wife fhould take thefe Things, and continue to enjoy
them during his (the Hufband's) Pleafure, which Plea-
fure was determined by his Death ; belides, this Agree-
ment being after Marriage, was but a voluntary one,
for which a Court of Equity ufually leaves the Party
to take his Remedy at Law ; and that, in Truth, the
Hufband's Borrowing this ico/. of his Wife, was no
more than Borrowing his own Money.

But the Lord Chancellor decreed, that the Widow,
the Defendant, was well intitled to come in for this
1 CO /. as a Creditor before the Mafter ; obferving,
that the Courts of Equity have taken Notice of and
allowed Feme Coverts to have feparate Interefts by
their Hufbands Agreement ; and this i oo /. being the
Wife's Savings, and here being Evidence, that the
Hufband agreed thereto, it feemed but a reafonable
Encouragement to the Wife's Frugality, and fuch A-
greement would be of little Avail, were it to deter-
mine by the Hufband's Death ; that it was the ftrong-
eft Proof of the Hufband's Confent, that the Wife
fiiould have a feparate Property in the Money arifing
by thefe Savings, in that he had applied to her, and
prevailed with her to lend him this Sum ^ in which
I Cafe

De Term. S. Michaelis, 1754. 359

Cafe he did not lay Claim to it as his own, but fub"
mitted to borrow it as her Money.

Wherefore, and efpecially as here was no Creditor
of the Hufband to contend with, it was ordered, that
the Wife fhould be allowed to come in for this i oo /.
as a Creditor before the Mafter; and the Court cited So where the
the Cafe of Calmady verfus Calmady, where there was "reS^"fha\'
the like Agreement made betwixt the Hufband and Wife, the Wife
that upon every Renewal of a Leafe by the Hufband, ^°ogSuL
two Guineas fhould be paid by the Tenant to the Wife, ^^ ^^'^'■y Te-
and this was allowed to be her feparate Money. "ewed a '^^'

Leafe with
the Hufband, beyond the Fine which the Hufband received ; this was allowed to be the
Wife's feparate Money.

The Lady Coxs Caie. Cafe ss.

Sir Jofeph
Jekyll, M2-

OlR Charles Cox, a Brewer, in Southwark, having ^-^^ijf ^'"
^ Wife that lived for fome Time feparate from him, ^ ^^^.^^^ a
made his Addrefles to a young Woman in Order to "^'fe who
marry her, who at length, againft the Approbation offromhfm^^^
her Friends, confented to marry him. Accordinely afterwards

, '111 \xT 1 1 courted and

they were married; but the young Woman had no married ano-
Manner of Notice that Sir Charles Cox had any former '''^"^ ^^'°'

Wire then living. knew no-

thing of the
former Wife's being alive; but it being difcovered to the fecond Wife, that the former was
alive, A. in Order to prevail with the fecond Wife to ftay with him, fome Years afterwards
gave a Bond to a Truftee of the fecond Wife, to leave her looo/. at his Death, and died,
not leaving AlTets to pay his fimple ContraiSl Debts; if this Bond had been given immedi-
ately on the Difcovery, and they had parted thereupon, it had been good ; but being given
in Truft for the fecond Wife, after fuch Time as fhe knew the firft Wife was living, and
to induce her to continue with J; this was worfe than a voluntary Bond, and decreed to be
poftponed to all the fimple Contradt Debts.

Some Time after the Marriage it was difcovered,
that Sir Charles had another Wife then living, which
gave great Trouble and Uneafinefs to this fecond Wife ;

but

340 De Term, S. Michaelis, 1734.

but (lie having difobliged her Friends by the Marriage,
and Sir Charles telling her, that his firft Wife was in
Years, very infirm, and not likely to live, and that in
Cafe he Ihould furvive fuch firft Wife, he would marry
her : this Lady was prevailed upon to continue to co-
habit with Sir Charles ; and about five or fix Years af-
terwards Sir Charles gave a Bond to a Truftee of the
fecond Wife, to leave her looo/. at his Death ; and
Sir Charles foon after dying, the Plaintiff, the Lady,
brought her Bill for this lOOo/. and there happening
to be a Deficiency of AiTets to pay the fimple Contraft
Debts, the Queftion now was, whether this i ooo /.
thus fecured by Bond, ftiould take Place of the fimple
Contra61: Debts ?

It was infifted for the Plaintiff, that fhe was an in-
nocent young Lady, greatly injured by Sir Charles Cox,
who pretending to be a lingle Man, and having made
his Addreffes as fuch, had drawn her in to marry him
without the leaft Notice or Sufpicion, that he was a
married Man ; that all the Compaflion imaginable was
due to a Lady thus betrayed, who might have main-
tained an Action at Law for this Injury ; in which
Cafe, fuppofing the lOOo/. in Queflion had been given
by the Jury for Damages, it had been but juft ; and
if fo, it was furely no iefs juft in the Hulband to give
her a Bond for the like Sum.

The Mafter of the Rolls took Time to confider of
the Cafe, and at length gave Judgment, that this
Bond fhould be poftponed to all the fimple Contraft
If fuch Bond Debts owing by Sir Charles Cox. His Honour admitted,
gfven to ^^^t if ^^^ Bond had been given upon the firft Difco-
the fecond vcry that Sir Charles was married to a former Wife
Recompence then living, and by way of Recompence for that In-

fot the In-
jury done her, and thereupon (he had left A; it had been a good Bond> and to be paid before
any Ample Contract Debts.

2 j"ry,

De Term. S. Michaelis, 1734. 341

jury, and thereupon Sir Charles and this Gentlewoman
had parted, this had been a juft Bond, and for a me-
ritorious Confideratlon ; but that in the prefent Cafe
the Bond was not given until five or fix Years afi;er
there had been a Diicovery of the former Marriage,
which made it reaionable to think it was given by Sir
Charles to this Lady, rather to induce her to continue to
live with him, than upon any other Motive ; in which
Cafe the Bond would be worie than a voluntary one ;
for then it would be given for a wicked Confideratlon,
that of her living in Adultery with ^\x Charles-, and
this unfortunate Lady, whatever the Confequence had
been, ought to have left Sir Charles, after fhe had fully
difcovered he had a former Wife living ; that if fuch
Bond had been given to a lawful Wife after Marriage,
this had been a voluntary Bond, and {c) void agalnft
Creditors, much more, when given to one who was no
Wife, and upon fuch an illicit Confideratlon.

The Cafe of the Creditors of Sir cafe 89:
Charles Cox. fj;^%,

Jier of the
Rolls.

NOTHER Part of this Cafe was referved for the
further Confideratlon of the Court, and was as
follows :

Sir Charles Cox, pofTefTed of a Term for Years made Oneponbflbd
a Mortgage thereof, and died poffeffed of the Equity VeaTs'™ n-
of Redemption of the fald Mortgage, and leaving g^ges ", and
greater Debts due from him at his Death, than his Debts,T'me
Eftate would extend to pay : Whereupon the Queftlon by Bond and
was, whether this mere Equity or Redemption was pieContrad;

the Equity of
Redemption is equitable Aflets, and (hall be liable to all the Debts equally.

Vol. in. 48 only

342. De Term, S, Michaelis, 1754.

only equitable AfTets, and dlftributable equally pro rata,
among all the Creditors, without Regard to the
Degree or Quality of their Debts ; or, whether it
lliould be applied in a Courfe of Adminiftration ; in
which laft Cafe the Bond Creditors would fwallow up
all the AfTets, without leaving any Thing for the lim-
ple Contra£l Creditors.

And his Honour, after Time taken to confider of if,
delivered his Opinion with Solemnity : That this Equity
of Redemption was equitable Affets only, the Mortgage
being forfeited at Law, and the whole Eftate thereby
verted in the Mortgagee ; and it being now become
precarious and doubtful, whether it would prove worth
redeeming; alio, for that the ^antum of the Money
due on the Mortgage was uncertain, forafmuch as,
when the Executors of the Mortgagor Ihould be admit-
ted to redeem, they muft pay Coffs, which in Equity
are confiderable; fo that it cannot now be known, what
the Surplus Money on the Redemption would amount
to upon the Account taken. Wherefore this Right of
Redemption being barely an equitable Intereft, it was
reafonable to conftrue it equitable AlTets, and confe-
quently diftributable amongfl all the Creditors pro raui,
without having Refpe6l to the Degree or Quality of
their Debts ; all Debts being in a confcientious Regard
equal, and Equality the highefl Equity j accordingly it
was (d) fo decreed. But,

But where a Secondly, The Court declared, that where a Bond is
Sfil^mTruli^"^ to A. but taken in the Name of B. in Truft for A
for v^. who and A. dies ; this muft be paid in a Courfe of Admi-
M^neyJuc ^iflration J for in fuch Cafe there can hardly be any
on the Bond Dilputc touching the Quantum of the Debt, feeing the

fhallbepaid ^ b -<- > b

in a Courfe of Adminiftration ; fo if there be a Term for Years to B. in Truft for A.

{d) See I Ycm. 293, Morgan verftis Lord Sherrard.

I Principal,

De Term. S. Michaelis, 1734. 343

Principal, Intereft, and alfo the Cofts, muft be paid
to the Obligee in the Bond ; whereas in the other
Cafe, the Coits muft be paid by the Party coming to
redeem. For the fame Reafon, if a Term for Years
be taken m the Name of B. in Truft for A. this, on
the Death of A, the Cefluy que Trufi, will be legal Af-
fets ; for here the Right to the Thing is plain, and if
the Truftee contefts it, he muft, prima facie, do it on
the Peril of paying Cofts.

Thirdly, The Court apprehended, that if a fimplej'' ^^^'ii be
Contraft Creditor, on Behalf of himfelf and the Reft fimpfe Con-
of the Creditors, were to bring a Bill and obtain a ^"'^ ^i^f'^'*

o^ tor on DC*

Decree, that he and the Reft of the Creditors fhouldhaitofhim-
come in before the Mafter, and be paid all their Debts ; ^f/"}* jj^
and that an Advertifement be put in the Gazette for Creditors of
that Pur pofe : Here any Bond Creditor coming in on :^^^^\^°-^^^
the Foot of the Decree, ftiall be paid only pro rata Debts, and
with the fimple Contra£l Creditors ; for his coming Decree^ that
in, implies a Submiilion to the Decree. And this was t^^e Plaintiff

, , ^ , , _, and the Reft

thought to be clear. But, of the Cre-

ditors (hall
come before the Mafler and prove their Debts ; Bond Creditors coming hi under the Decree
(hall be paid no more than a Proportion with the funple Contra<5t Creditors.

a
Crc-

Fourthly, The Court Inclined to hold further, that ^"°! j!
11 luch Bond Creditor would lie by, having Notice of ditor lies by
the Decree, and Advertifement in the Gazette, fnot- p""' *^

.,,■),. . . ^ . r.xecutor

withiianding every one is in many Cafes obliged to Jias paid a-
take Notice of a Lis pendens) and after fuch lying by, XJfetfunder
(hould bring his Aftion at Law againft the Executor or f^^ Decree,
Adminiftrator of the Obligor ; though at Law the (^m^^ be"
latter may not be able to defend himfelf, yet his ^""""^ *°
Honour thought that in this Cafe, an Equity would S wfth the
arife in Favour of fuch Executor or Adminiftrator, '""p'^,^°""

tr2ci ^rcili**

and of the iimple Contrail Creditors, to compel the tors.
Bond Creditor to come in and accept of a Proportion
of his Debt rateably with the fimple Contrafl: Cred

11-
tors.

344 ^^ Term. S. Michaelis, 1734.

tors. But however ftrongly his Honour inclined to be
of this Opinion, he faid, it was no Part of his Judg-
ment. Neverthelefs he declared, he fhould always do
his utmoft to extend the Rule of diftributing equitable
AiTets equally amongft all Creditors. See 2 F<?r«. 43 J.
Shephard verlus Kent.

This Refolution was communicated to me by the
Mafter of the Rolls himfelf, January 17, 1734.

Cafe 90. l^qyd £/ wx' y af verfus Spillet &f al\

Lord Cban-
«&r Talbot.

A. devifes John stamp, Uncle of the two Plaintiffs the Feme
^^^AP f^\ Coverts, feifed in Fee of a coniiderable Real, and
Eftate to pofTeffed of a great Perfonal Eftate, made his Will
^id/^Hcir ^^^^^ ^^^ ^^^^ of March 1 72 1, and thereby devifed all
and Execu- his Real and Perfonal Eftate to the Defendant Spillet and
rp'ayTsf ^"other Truftee, (fince dead) their Heirs, Executors
per Ann. to and Adminiftrators, in Truft to pay i 5 /. per Annum
his two^Sj/ a-piece to the Plaintiffs his two Sillers (the Wives of
fters for their the Other Plaintiffs) for their Lives, and after fome
after feverai pecuniary Legacies thereby given, then in Truft, as to
Legacies, the the Surplus, fov thofe Pcrfons that are commonly called

burplus m T^./rn4--/7 -11 1 , 1

Trudfor the Dijlentin£; MiniJterSj particularly 3 5 /. per Annum to the
piiibnting DiiTenting Minifter at Reading, in Berks, the like An-

Minilters at . o -rr • • -n i i i-i

Ji^aJing, i^c.nuity to the Dillentmg Minuter at Wareham^ the like

and gives

300/. Legacies to his Truflees. Afterwards the Teftator, by two Deeds of a fubfequent
Date, conveys all his Real Eftate, and makes a Gift of his Pcrfon-1 Eftate to the Ufe of the
lame Truftees and their Heirs, £jff. Provifo both Deeds to be void, on his Tender of lOs. to
them. There was alfo a Provifo in the Will, that if the Sifters difputed the Will, they
fbould forfeit their Annuities. Teftator, after he had executed the Deeds, ftill kept the
fame in his own Cuftody. The Truftees refufe paying the Sifters their Annuities, who
thereupon bring their Bill, infifting that the Deed had revoked the Will ; and that there was
a refuhing Truft for them as Heirs at Law ; or at leaft that they (the Sifters) were intitled
to their 15 /. per Annum Annuities. The Defendant infifted on the Plaintiffs having fcfr-
feited their Annuities ; decreed that the Annuities ftiould be paid to the two Sifters the
Plaintiffs, but the Surplus to gp to the Diflenting Minifters.

De Term. S. Michaelis, 17^4. 54?

to him at Weymouth, in Dorfet/Ijire ; and gave 300/.
a-piece to the Defendant the Truftee, and the other
Truftee deceafed, and 20 /. per Annum to each while
they took Care in executing the Truft.

Afterwards by a Deed of a fubfequent Date to the
Will, the Teil:ator conveyed all his Real Ertate unto
and to the Ufe of the faid Truftees and their Heirs,
with a Provifo to be void, on Tender of \os. And by
another Deed of the fame Date he granted all his Per-
fonal Eftate to the fame Truftees, to be void alfo 011
Tender of the like Sum of 10 s. both which faid
Deeds the Teftator kept in his own Cuftody, and foon
after died.

The Truftees for fome Time paid the i 5 /. a-piece
to each of the Teftator's Sifters ; but afterwards refufed
to continue the Payment thereof, and did likewife re-
fufe to pay any of the DiiTenting Minifters ; but re-
ceived the Rents and Profits of the PreraiiTes to their
own Ufe.

The two Sifters and their Hufbands brought this
Bill in Equity againft the furviving Truftee, infifting
that the Deed of Conveyance of the Real Eftate, and
the Deed of Gift of the Perfonal Eftate being fubfe-
quent to the Will, did plainly revoke fuch Will ; and
the Conveyance and Deed being voluntary, without
any Confideration, and the Defendant being intended
to be but a Truftee, a refulting Truft muft arife for
the Plaintiffs the Heirs at Law ; Vv^hich was faid to be
ftill much the ftronger, in that the Plaintiffs having in-
quired by the Bill, whether the Teftator Stamp intend-
ed the Premifles ftiould be to the Ufe of the Defendant,
or that the Defendant and the other Truftee deceafed
^ ftiould receive the Profits for their own Benefit ; the
Defendant in his Anfwer had faid, he could not tell
Vol. III. 4 T whether

34^ " De Term. S. Michaelis, 1734.

whether the fald Stamp the Teftator did or did not Co
intend ; and the Plaintiffs having prayed by their Bill,
that if the Court lliould be of Opinion they were
not intitled to a refulting Truft in the whole Eftate ;
that in fuch Cafe they might at leaft be decreed
their Arrears of that fmall Annuity of i 5 /. per Ann.
a-piece ; The Defendant in his Anfwer thereto, had
infifted on there being a Claufe in the Will, tbit if the
Teftator's Heir at Law fhould difpute the Will, then
they lliould forfeit their Annuities ; and fubmitted it
to the Court, whether the Plaintiffs had not by profe-
cuting this their Suit forfeited their faid Annuities.

The Lord Chancellor declared, he very much dif-
liked the Defence that had been made in controverting
the Payment of thefe Imall Annuities of 15/. per
Annum a-piece to the Wives of the Plaintiffs, and in-
filling that they were forfeited by this their Bill ; and
obferved, that the Teftator plainly intended the Annui*
ties of 15/. per Annum a-piece to the Plaintiffs his
Sifters and Coheirs ; and that the Surplus of his Eftate
fhould go to thefe DilTenting Minifters ; that the De-
fendant's own Anfwer made it appear evidently that he
was defigned to be but a bare Truftee ; and the rather,
for that a liberal Legacy of 300/. and likewife the
20/. per Annum Salary were allowed to the Defendant;
that the fubfequent Conveyance of the Land, and
Deed of Gift of the Goods, were not defigned to pre-
judice the Charity for the DifTenting Minifters, but to
Where a ftrcngthen it ; and It was a further Argument of the

fubfequent O ' o

Conveyance Intention of the Teftator, that the Defendant fhould
vokeawTn ^^^ ^^^^ ^^^ Premiffes to his own Ufe, inafmuch as,
after the Deeds of the Land and Goods were executed,
ftill they were kept in the Cuftody of the Teftator ; fo
that as the Deeds were intended only by way of Truft
in the Truftees, it was more reafonable to eftablifh this
Truft on the Foot of the Will.

2 And

-y'

De Term. S. Michaelis, 1754. ^47

And with Regard to the Annuities; his Lordlhip a Trufiee
decreed, that the Arrears and growing Payments there- HlJ^reifJol?
of belonged to the PhinrifFs, who were intitled alfo to ^f '-"•^ '« p^y
their Colts ; and though it was prayed, that thefe i,;" ovvn
Cofts might come out of the Eftate, (which the De- P°«=''"> ^"'^
fendant urged would be the fame Benefit to the Plain- the Truft
tiffs) yet the Court denied it, as tending to leifen the ^^^''^*
Charity, and faid, the Defendant the Trultee had made
fo ill a Defence, as not to have deferved the lealt Fa-
vour by this Decree.

D E

348

D E

Term. S. Hillarii?

1734-

Cafe 91. Harris verfus Pollard^ at.

Sir Jofeph
Jekyll, Ma-

Roiil ' ' T" IT PON a Bill of Remor, one of the' Defendants

Revivor. V»^ by his Anfwer inlifted, that the Plaintiff was

,^ , _ not intitled to revive ; but this being iniifted on by

If the De- , r 111 r 1

fendant's the Anlwer only, and not by way or Plea or Demurrer,

Zifwerin°<^ "P°" ^Y iTioving at the Rolls that Proceedings might

be out, the ftand revived, his Honour granted the Motion, having

order Pro- ^^ ^^^ fame Time fpoken with the Regifter touching

ceedings to the Pra£lice. Though I apprehended that the Praftice
So though of reviving Proceedings was only upon the Defendant's

the Defen- Time for anfwering being out, or upon the Defen-
dant by his J , ^ . 5" ^ r x, n • n

Anfwer in- clant s anlwcring and not oppoling the Revivor. How-
Ms that the eygj. j-jjg Honour, when he granted my Motion, faid, the

PlaintifF IS ...^ '^ 111 1 -I •

not intitled Plaintiff ought to mew he had a good Title to revive,
forTh'ir ' otherwife at the Hearing of the Caufe he might happen
ought to be to take nothing by the Suit.

(hewn either

by Plea or Demurrer ; but if in fuch Cafe it appears at die Hearing that the Plaintiff had

no Title to revive, he cannot have a Decree.

Orlando

De Term. S. Hillarii, 1734. 349

Orlando Humphreys, Efq; and Hellen^^^^'^
his Wife, verfus Sir William Hum- ':1tZ.,.
phrejSy Bart, parties.

THE Bill was brought by the PlalntifF Orlando Hum- 1" a Bi" fof
phreySf and Hellen his Wife, againft his Father, of the'^Per-
Sir William Humphreys, Bart, for an Account of the Per- f^/^a' ^ftate
fonal Eftate of Colonel Lancajhire, deceafed. though the

Perfon who
has a Right to adminiftcr to J. S. be a Party, yet this is not fufficient, without Adminiftra-
tion atSlually taken out.

Colonel Lancajhire by his Will gave iO,oco /. to his
VJ'ife Hellen, alfo 10,000/. to his Daughter and only
Child Hellen, and after fome other Legacies, difpofed
of the Surplus of his Perfon al Eftate in Manner fol-
lowing : One Third to his Wife, the remaining two
Thirds to his Daughter, and made his Wife and his
Brother Lancajljire Executors of his Will, and died.

The Defendant, Sir William Humphreys, married the
Widow of Colonel Lanca/hire, and fome Time after
the Plaintiff Orlando Humphreys married Hellen his only
Daughter ; upon which Intermarriage the Defendant,
Sir William, made an ample Settlement upon his Son
the Plaintiff, Orlando Humphreys, and Hellen his Wife ;
but afterwards the Plaintiff falling out with his Fa-
ther, brought this Bill againft him for an Account of
the Perfonal Eftate of Colonel Lancajlnre : At the Time
of bringing which Bill, Hellen, the Widow of Colonel
Lanca/hire, and afterwards the Wife of the Defendant
Sir William, was dead, and the Brother of Colonel
Lancajhire was dead alfo ; fo that there was no Execu-
tor or Adminiftrator of Colonel Lanca/hire, Party to the

Vol. III. 4 U Bill;

3*^0 De Term. S. Hillarii, 1754.

Bill ; for which Reafon the Defendant demurred to
fnch Part of the Bill, as demanded an Account of
the Perfonal Eftate of Colonel LancafJjire ', which De-
murrer coming on to be argued before the Lord
Chancellor,

It was infifted, that the Plaintiff Hellen, Wife of the
Plaintiff Orlando Humphreys, as fhe had a Right to ad-
minifter to her Father, Colonel LancafAre, and in Re-
gard, though any other Perfon fhould by Surprize get
Adminiftration to him, yet fuch Perfon would be a
Truitee only for the Plaintiff Hellen the Daughter ; and
as the Plaintiff Hellen the Daughter, who had the only
Right to the Adminiftration, was a Plaintiff before the
Court : This was fuflicient, and the Court might order,
that the Plaintiff Hellen fliould forthwith take out Ad-
miniflration to her Father.

Lord Chancellor : There can be no Account taken of
the Perfonal Eftate of Colonel LancaJJj'ire without ma-
king his Executor or Adminiftrator a Party to the Bill ;
for aught appears to the contrary, there may be Debts
due from Colonel Lanca/Ijire, which may take up great
Part of the AfTets ; and therefore the Adminiftrator of
the Colonel muft be made a Party, elfe no proper Ac-
count can be taken; and if any Account fhould in
Fa£l: be taken, it may be all overhaled again, when
fuch Adminiftration ftiall be taken out. Therefore [A]
allow the Demurrer.

[A] See the Cafe of Cleland verfus Cklattd, Precedents in Chancery,
64. where an Objedlion of this Kind was over-ruled, and the Making
the Wife a Party, who had poiTelfed herfclf of her Hulband's Perfonal
Eftate, and difpofed of it, and who appeared to be the Perfon by Law
intitled to Adminiftration, though ftie denied by her Anfwer that Ihe
had taken Adminiftration, was held fiifficient.

Afterwards,

De Term. S. Hi liar it ^ 1754. 3^1

Afterwards, to help this Defe£l, the Plaintiff Hellen^J^^^'^f ^
the Wife of the Plaintiff Orlando Humphrey s, took out way of a-
Letters of Adminiftration to her Father, and charged STueTs^"^*
the fame by way of Amendment to the Bill, having which aiofe
obtained an Order for fuch Amendment. Unroflhe'"

But, and
therefore proper for a fupplemental Bill ; and though this was pleaded to the Bill, yet the
Plea was over-ruled ; for that fuch Matters may be charged, either by way of fupplemental or
amended Bill.

To which amended Bill the Defendant pleaded as
to that Part thereof, which prayed an Account of
the Perfonal Eftate of Colonel Lanca/Jyire, that the
Taking Adminiftration was fubfequent in Time to
the original Bill, and therefore it ought to be char-
ged by way of a fupplemental, not an amended
Bill ; and the rather, forafmuch as every Amendment,
though made after Filing the Original Bill, is fixed to,
and becomes Part thereof; fo that the Bill was filed
by an Adminiftratrix, as fuch, and yet would appear
to be filed before the Adminiftration taken out, and
confequently before the Right to fue, commenced.

But the Lord Chancellor with great Clearnefs (and
not without fome Warmth in Refpe£l: of the Delay)
over-ruled the Plea, obferving, that the mere Right to
have an Account of the Perfonal Eftate was in the
Plaintiff Hellen the Daughter, as flie was the next of
Kin to her Father, Colonel Lanca/Jjire ; and it was fuf-
ficient, that fhe had now taken out Letters of Admi-
niftration, which, when granted, related to the Time of
the Death of the Inteftate, like the Cafe where an Ex- Where an
ecutor, before his Proving the Will, brings a Bill, yet before Pro-
his fubfequent Proving the Will makes fuch Bill a good ^ate, files a
one, though the Probate be after the Filing thereof terwards

proves the
Will; fuch fubfequent Probate makes the Bill a good one.

Wherefore

3<jz De Term, S. Hillarii, 1734.

Wherefore his Lordftilp refented this Plea as an af-
fefted Delay, and held, that the Taking out Letters
of Adminiftration might be charged either by way of
Supplement or Amendment.

Cafe 93. Mallack verfus Gahojt,

Lord Chan-
eeUorTz\hot.

The Equity l"F a Fcmc before her Marriage, or the Anceftors of
tfo^otT^' ^ Feme, mortgage Lands, and the Equity of Re-
Mortgage demption thereof comes to a Feme Covert; upon a
Feme' Co-^ Bill brought by the Mortgagee to foreclofe, the Feme
vert, againft is liable to bc abfolutcly foreclofed, though during the
hermi'fband, Covcrture, and lliall have no Day given to her, or her
a Bill is Heirs, to redeem after the Coverture fhall be deter-

brought to . J

foreclofe; mined.

the Feme

Covert (hall be foreclofed abfolutely, and (hall have no Time to (hew Caufe after the Death

of her Hulband.

In a Fore- Alfo, in Cafe of a Decree of Foreclofure againft an
gainft an In- Infant, though fuch Infant fliall have fix Months Time
S.e'infant"'' ^^^^^ ^^ ^omes of Age, to fhew Caufe againft the De-
has fix cree ; yet he is not, when he comes of Age, to ravel
h^^comef ^of into the Account ; nor is he fo much as intitled
Age, to (hew to redeem the Mortgage, by paying what is reported

Caufe, ^c. , , . 1 • • 1 J n. x^ • if r^

yet he cannot due, but IS Only intitled to mew an hrror m the De-
ravel into the cree. Both theic Points were clearly laid down by the

Account

nor even re- Lord Chancellor, as agreeable to the conftant Prac-

deem, but ^J rg"]

only(hew^an"^'^* L^J

Error in the

Decree. j-g-j j^ ^j^^ ^^^^ ^^ Lyne vtx^m Willis, heard at the Rolls, 13th of

May, 1730. this was admitted by the Counfel on both Sides, and alfo

by the Court, to be the fettled Pradlice.

D E

3^3

D E

Term. Pafch^,

1735-

Fo-wler verfus Foixler. c^bs^:

Lord Chan-
f^//isr Talbot.

THE Defendant's deceafed Hufband, in Confi- Hufband on
deration of a Marriage then intended, and ^^- {[eAi^i.tir
terwards folemnized, and of a conliderable Portion ^«««« ^}^-
brought by the Defendant, fettled i oo /. per Annum in r^'ft fo'r"his
Truft, for her feparate Ufe for Pin-Money j two Years J^'^^^'f-^jf"
Arrears whereof became due, and then the Hufband which be-
made his Will ; wherein exprefline great Affe£l:ion for '^°'"^^ "\^'-

. _ ^ ♦-'- " _ rear, and

his Wife, he gave her a Legacy of 500/. After the then the Huf-
Making of the Will another Year's Arrear incurred, ^J^^'^^^j;^"^
and then the Hufband died. The Qiieftion was, whe- wife a Le-
ther the 500/. Legacy, being more than was due for |7ter° whkii
Pin-Money, fhould be deemed a Satisfadion for the faid 'Nereis a fur-

• . -, thcr Arrear

Arrears ? of t^c Pin-

Money, and
then the Hufband dies ; this Legacy being greater than the Debt, decreed, even in the Cafe
of the Wife, to be a Satisfaition of the Arrears of Pin-Money due before the Making of
the Will.

Vol. III. 4 X Firfl,

_;*^

3^4 De Term. Pafch^^ 1735.

Firfti The Lord Chancellor admitted it to have
been the general Pra£lice, where there is a Debt due
from the Teftator to a third Perfon, and the Legacy
given to fuch Perfon is as much, or more than the
Debt, to hold fuch Legacy a Satisfaction of the Debt ;
and this being eftablilhed as a Rule, (notwithftanding,
were it a new Point, he lliould hardly have come into
it, and it had with great Reafon been urged in Oppo-
fition to the Maxim, that a Man ought to he jufi^ before
he is bountiful', that where there are AlTets, the Tefta-
tor may with as much Reafon be conftrued (a) both
juft and bountiful, yet) it muft be of very ill Confe-
quence to unfettle or alter it ; becaufe at that Rate no
Counfel would know how to advife his Client.

Parol Evi- Secondly, Though in fome Cafes Parol Evidence had
ing'^theTe- t)sen allowed, in Order to fhew that the Teftator de-
ftator's In- figned to gIve fuch Legacy, exclufive of the Debt ;
to be admit- yet his Lordftiip faid his Opinion was, not to admit
^^- fuch Evidence; for then the Witneffes, and not the

Teftator, would make the Will.

Thirdly, Admitting this to have obtained as a general
Rule, it was next to be conlidered, his Lordftiip faid,
whether a Wife ought to be excepted out of fuch ge-
neral Rule. Now it was true, there had been, on
fome Occalions, and in fome particular Cafes, a Di-
ftinClion made in Favour of a Wife, fo as to pre-
fer her to any other Legatee, as in thofe of 77;^
Duchefs of Beaufort verfus The Lady Granville, in the
(b) Houfe of Lords, and (c) Ball verfus Smith, by the
Lord Harcourt, where the Wife, being Executrix, and
having an exprefs Legacy, was alfo held intitled to the
undifpoled Surplus ; yet even with Regard to this the

Court

{a) Salk. 155. (J>) In December 1710. (r) In 1712.
2

De Term. Pafcba, 173^.

5?s-

Court had varied in their Determination^. However,
lince no Precedent had been alleged in Favour of the
Wife, as to the Point in Qiieftion, he thought that
the Legacy given to her being greater than the Debtj
it ought to be conftrued a Satisfa6lion of fuch Debt,
and that there was no Reafon to except the Wife ouE
of the general Rule. But that,

Fourthly, The Legacy could not be pretended to be
a Satisfaftion of a Debt incurred after the Date of the
\Vill, and which at that Time might polTibly (d) never
become due.

Fifthly^ Where Pin-Money is fecured to the Wife, Where Pin*
and it appears, that the Hulband notvvithftanding pro- ^jj°"j^ j\ J^
vides the Wife with Clothes and other NeceiTaries, this, Wife, and
during fuch Time as the Wife is fo provided for by the fjj, i,er In
Hufband, will be a (e) Bar to any Demand for her Ar- Clothes and

/>_.,- "^ •' Neceflaries ;

rears ot Pin-Money. this is a Bar

as to aiiy Arrears of Pin-Money incurred during fuch Time*

(d) See Salk. 50S, and Vol. r. 409, Vol. 2. 34.3.

(e) See Vol. 2. 84, Powell verfus Hankey and Cox,

-J. —

D E

3^6

D E

Term. S. Trinitatis,

^735

Cafe 95. Miller verfus Miller &° af.

Sir Jofeph
Jekyll Ma-

^Rom *''" i^\ ^ ^ having a Wife and a Son that was his only

Rolls. ■ ■ .

_ , . \ / Child, two Days before his Death made his

One having >r:, . . ' , ■' , . ._.^ ,

by his Will \\'ill, giving thereby to his Wite i 50 /. per Amum, in
WiTe6oo/ ^""§ Exchequer Annuities, during her Widowhood.
in Money, After which the fame Day he made a Codicil, by which
S(fordered^ he gave to his faid Wife a further Exchequer Annuity
his Servant and 6oo /. in Money, to be paid her immediately after
hbwlf/, °his Death. Subfequent to this, and about an Hour
then prefent, before his Death, the Teftator having called to his
Notes, pay- Servant tp reach him his Pocket-Book, took thereout
able to Bear- j.^^,Q Bank Notcs for 200/. each, and another Note

er, amount- / i • n

ingto6oo/. tor 100/. (not being a Calh Note, or payable to
had not d'one ^^^*^^0 ^^^ which Notes he ordered his Servant to de-
enough for liver to his Wife (then prefent) adding, that he had
this Gift 'is "o^ ^o"s enough for her. But the Wife for fome
additional, Time declined takin<i thefe, having, as (he faid, enough

and Ihall not , , . ^ , • 1 i • • i • c ?

be c-.nftrued already, and tor that it would injure their Son, who

a Payment

of the former Legacy in the Teftator's Life-time.

2 was

De Term. Jl Trinitatis, 1759. 397

was the Refiduary Legatee in the Will. Neverthelefs, at
Length (he was prevailed on by her Hufband to accept
of the two Bank Notes and alio the other Note. After
which the Teftator by Word of Mouth gave her his
Coach and a Pair of his Coach-Horfes, bidding three
Witnefles then prefent take Notice of it, and that he
was in his Senfes, who accordingly made a Memoran-
dum thereof in Writing.

On a Bill brought in the Name of the Infant Son by
his Prochein Amy, againft the Widow and the Executors
for an Account of the Teftator's Perfonal Eftate, it was
inlifted on Behalf of the Plaintiff, that (ince by the Co-
dicil a Legacy of 600 /. was given to the Wife, payable
immediately after the Teftator's Death, the Delivery of
thefe two Bank Notes amounting to jutt the Sum of
600 /. was a Payment of fuch Legacy in the Teftator's
Life-time ; and with Regard to the other Note for
1 00 /. which was not payable to Bearer, that was
merely a Chofe en ABion, and confequently could not
pafs by a Delivery thereof. Alfo as to the Coach and
Horfes, thefe were not delivered in the Teftator's Life-
time, for which Reafon the Widow could have no
Claim to them.

Mafler of the Rolls: The Gift of the 5oo /. con-^^'^y^'y^r
tamed m the Bank Notes was a Donatio cauja mortis, mortis, DeK-
which operates as fuch though made to a Wife, for it J^^J^^^the
is in Nature of a Legacy, but need not be proved (a) Party in his
in the Spiritual Court as Part of the Teftator's Will, ^^"dfj;,";^;
Neither are Gifts of this Kind good, unlefs made by wa wife,
the Party in his laft Sicknefs. And though in theture^of"aLe-
principal Cafe the Sum be the fame with the 600 /. ga<^y» ''"^
Money Legacy given by the Codicil, yet the Manner proved witia
of giving thefe Notes, together with the Expreflions ^"^^ ^'"•
, Vol. IIL 4 Y then

{a) For it operates as a Declaration of Truft upon the Executor. See
yol. I. 441. the Cafe of Lawfon verfus Lawfon throughout.

3^8 De Term. S Trini talis, 173^"-

then made ufe of by the Hufband, declaring that he
had not fufficlently provided for his Wife, manifeftly
Ihew them to have been defigned as additional. On the
other Hand, the Wife by dechning at firft to accept of
them, appears to have been no craving Woman.

'^^h *^rT ^""^^ ^^■'^" ^^ '•^ '■^^ Note for i oo /. which was mere-
ofaBondorly a Chofe en Aftion, and muft ftill be lued in the
ChofeenJc-^^^Q of the Execiuors, that cannot take EfFe£l as a

iion by way . '

of Donatio DoYiatio caufi mortis, in as much as no Property therein
Neutrcat could pafs by the Delivery, much lefs can the Widow
any Thing be iutiflcd to the Coach and Horfes, of which there
J^h^^jth^out^^''2S no (b) Delivery in the Teftator's Life-time.

having been

delivered iji the Teftator's Life-time by him or his Order.

Cafe 96. Kinx^ verfus J^/V/je; £^ Ennis.

Lord Chan- d d

«//*/• Talbot.

On an ^pjpeal from a Decree at the Rolls.

Re"d!rptTon^TrHE Bill was, that a Mortgage made by the Te-
of a Copy- -■- ftator of a Copyhold devifed to his Nephew,
devifed wth- flight be difcharged out of the Perfonal Eftate of the
out being Tellator, and if that not fufficient, out of the Reft of

furrcndered , „ i ■i-.n

to the Ufe of the Real Eitate.

the Will.

Every The Teftatoi Thomns King, feifed in Fee of fome

Mortgage, freehold Lands, and alio of fome Copyhold Lands in

thou tin no

Covenant or Hackney, in Middlefex, had mortgaged the Copyhold
S:"Mone^v ^ ^°^ 3 50 A to the Defendant Ennis, who was admitted
implies a'' upou the faid Mortgage.

Loan, and

every Loan implies a Debt ; therefore an Heij of a Mortgagor fliall compel an Application
of the Perfonal Eftate to pay off a Mortgage, notwrithftaiiding there was no Covenant, ^c.
from the Mortgagor.

{b) Admitting the Coach and Horfes not to pafs to the Widow by
way of D^ndlo caufd vwrtis, why could fhe not be intitled to U^em as by
a Nuncupative Will .-'

2 The

De Term. S. Trinitatis, I7]9. 599

The Teftator made his Will dated the firft of July
1730, whereby reciting, that he had furrendred the
Copyhold to the Ufe of his Will, he devifed the Copy-
hold Premiffes to his Nephew the Plaintiff and his
Heirs ; and after all his Debts paid, he devifed all the
Reft and Relidue of his Eftate Real and Perfonal to his
Son the Defendant Thomas King and his Heirs, leaving
his faid Son Executon

The Plaintiff the Nephew brought his Bill againft
the Teftator's Son and the Mortgagee, fetting forth,
that there was a Bond for the Payment of the Mort-
gage Money, which the Mortgagee by his Anfwer con-
feffed, (and note, this Bond was admitted at the Hear-
ing at the Rolls) and the Words of the Will being, A Dcvife of
" That after all the Teftator's Debts paid, the Rett after' o^bts
" and Refidue of all his Real and Perfonal Eftate v^'^'^-> '=* ^
" fhould go to his Son j" this was faid to import, Debts on the
that (c) till all the Debts were paid, nothing was devifed ^*"*^-
to fuch Son ; or that, when the Debts fliould be paid,
then and then only he fliould be intitled to the Refidue
of the Teftator's Real and Perfonal Eftate. Where-
upon his Honour decreed, that firft the Perfonal Eftate
fliould go to pay oft" this Mortgage Debt, and after-
wards the Real Eftate devifed to the Son, and then the
Rents and Profits of the Real Eftate that had been re-
ceived by the Son fince the Father's Death.

And now upon an Appeal by the Defendant the Son,
he did not bring the Mortgagee to Hearing, and it was
neither proved that the Teftator had furrendered the
Copyhold to the Ufe of his Will, nor that there was
any Bond or Covenant for the Payment of the Money ;
confequently it was objected, ifl. That the Copyhold
was not well devifed by the Will. And idly. That

this
{£) See the Cafe of Harris verfus Ingledew^ ant' 91.

3^0 De Term. S. Trinitatis-, 175?.

this was no Debt ; that in the Cafe of the South-Sea
Loans it had been folemnly determined, that the Bor-
rowers were not [perfonallyj liable to pay the Money
borrowed ; and that in the Cafe now under Coniidera*
-tion, a very great Hardfliip was endeavoured to be
thrown upon an only Son, who, were he to pay this
Mortgage Debt, would be left deftltute ; wherefore the
Demand was not to be favoured in Equity.

To which it, was anfwered, and fo ruled by the
Court, that where a Copyholder has mortgaged his
Copyhold and the Mortgagee is admitted, as in the
prefent Cafe, the Mortgagor not having the legal Eftate
of the Copyhold in him, has no Eftate that he can
furrender, and therefore may {d) devife the Copyhold
Premlfles without any Surrender.

As to the fecond Point, the Court was of Opinion,
that every Mortgage implies a Loan, and every Loan
implies a Debt ; and that though there were no Cove-
nant nor Bond, yet the Perfonal Eftate of the Bor-
rower of Courfe remains liable to pay off the Mort-
gage ; and for this was cited a Decree of the Lord
Harcoun in the Cafe of the Mortgage of a Ship, where
the Ship was taken at Sea, and there was no Covenant
for Payment of the Money ; and though the Ship
could not properly be faid to be in Nature of a Pawn
. or Depofimm, lince the Mortgagor had failed with the
fame to Sea ; neverthelefs the Executors of the Mort-
gagor were decreed to pay the Money for which the
Ship was mortgaged. Which Cafe the Lord Chan-
cellor faid he well remembered, and that it was fo in
the Cafe of Wel/Ij (e) Mortgages, where no Day cer-
I . tain

(d) The fame Point was determined (inter al') in the Cafe of 5//W-
wicke versus Slrudwicke, by the Lord Chancellor Piirker, Pafcha; 1720.

(f) See Salk, 449, Cope verfus Ceff, and Vol. i. 291. Howell verfus
Price.

De Term. S. Trinitatis, 17 5S'. 361

tain is appointed for the Payment, but the Matter
left at large ; and that with Regard to what had been All tk
£ud of the South-Sea Loans, it had been always taken, l^j^^s were
that the Company gave Credit to the Stock only that advanced on
was pledged, and took no Notice of, nor made the the Swck,''
leall Enquiry after, the Ability or Circumftances of "''f'l°"t '"■
the Borrower, but depended intirely upon the Stock, the Ability

ot the Bor-
rower,

Wherefore the Decree of the Rolls Was affirmed
upon thefe two Points, (yin^) that one may devife an
Equity of Redemption of a Mortgage of a Copyhold
without having furrendered it to the Ufe of the Will 5
and alfo, that every Mortgage implies a Debt, for
which the Mortgagor's Perfonal Eftate is liable, al-
though there be no Bond or Covenant for the Payment
of the Mortgage Money.

Spettigue verfus Carpenter, LldcL^

cf //or Talbot.

/^^N a Bill to fet afide an Award, the Cafe was : After an a-
^-'^ There were feveral ftated Accounts between the Z\ tw^kte
Plaintiff and Defendant, whereby confiderable Sums ^° confirm
were due from the Defendant to the Plaintiff, but the miiHon fo as
Arbitrator, without Regard to any of ihefe Hated Ac- ''""'''^.'f.

1 A u- -ITT- 1 • • Sood within

counts, made up an Account his own Way, bringing the Aa of
in the Plaintiff indebted to the Defendant 25/. and^^^j°^3'
awarding the former to aflign over to the latter a
Mortgage which he had on the other's Eflate, upon
which mutual Releafes were to be given.

The Plaintiff underflanding what Award the Arbi- a Party fub-

trator was about to make, fent a Meffenger about two ■"'"'"= '^^"^

or three Days before the Time for making the Award fued the Ar-
bitrator to

defer making his Award until he ftiould fatisfy him as to fome Things which the Arbitrator
took to be againft him ; though this was within two or three Days belore the Time for
making the Award was out, yet the Requeft not being complied with, the Award was held ill.

Vol. III. 4 Z was

361 De Term. S. Trinitatis, 1739.

was expired, to let the Arbitrator know, that the
PiaintifF defired him to defer making his Award, until
he Ihould talk with him about his Demands, to fup-
port the ftated Accounts, and know what Obje£lions
were made againft them. However, the Arbitrator
would not defer making the Award. The Submiffion
was confirmed by an Order of the Court of Chancery,
but fuch Confirmation was after the Award was made.

For the Defendant it was infilled, that this Submif-
fion being confirmed by an Order of the Court, pur-
fuant 10 the Statute of the 9th and loth of JK 3. cap.
15. it could not be fet afide, but for Corruption, or
fome other undue Means -, and that in Point of Time
the Party was confined to make his Complaint even as
to that, before the End of the next Term after the
Award was made.

The Lord Chancellor called for the A£1, and having
read it, took Notice, ifi, That it is thereby provided, that
where the Submiffion is confirmed by Rule of Court,
the Award that Jljall be made fhall be conclufive to both
Parties, and the Performance of it inforced by Procefs
of Contempt of the Court j fo that within this Aft, the
Confirmation mufl be prior to the making of the Award.
idly. That with Regard to the Time within which the
Complaint was to be made, it was in this Cafe impoffi-
ble for the Party to apply within a Term after the
Award made, becaufe the Submiffion was not confirm-
ed by an Order of this Court until the End of the next
Term after making the Award, i^dly. That with Re-
fpeft to the Reafons allowed by the A£1 for fetting
afide the Award, they are Corruption, or other un-
due Means. Now it was afting unduly to proceed
in making the Award, when the PiaintifF had defired to
be heard againft the Arbitrators determining in Contra-
di£lion to io many Itated Accounts.

I And

De Term. S. Trhutatis, 17 3 S*- 3^?

And though it was anfwered, that this was within
two or three Days before the Time for making the
Award expired, and with an Intent that no Award
IhoLild be made ; and though it did not appear, that
the Plaintiff was ready to be heard within the Time;
yet, forafmuch as here feemed to be juft Ground for
the Plaintiff to defire to be heard, and in Regard it
would be difficult to affign a Reafon for rejedling fo
many ftated Accounts, fo lately allowed and'paffed be-
tween both the (ubmitting Parties, the Court fet afide
the Award with Cofts.

Sir Edvjard Bettifon verfus Alhinia<^^^^9^-
Farringdon and her two Sifters. fi-rlZ't.

IR Edrpard Bettifon, deceafed, was Tenant in Tail of Jff^,ia!med
a coniiderable Ellate in Kent., Remainder in Tail by vim.e of
to the Plaintiff's Father, Remainder to Sir Edward Bet- ?„ t!^? el"
tifon, deceafed, in Fee. Sir Edrpard Bettifon did by peftant on

Tenant in

Leafe and Releafe make a Tenant to the Prxcipe, and rrirrdy'ing
fuffer a common Recovery, declaring the Ufes to him- without if-
felf and his Heirs ; After which, on his dying Inteftate thc'Hc:ir
and without Iffue, the Defendants, his three Sifters, ^:^»^^.|';^^*J^
entered on the Premiffes ; and now, on the Death of Defi-mbnts
the Plaintiff's Father, the prefent Sir Edward Bettifon Z'^'^!^^""
brought a Bill to difcover what I'itle the Defendants General of
had, who by their Aniwer Ihewed, that their Brother, -n^^nrand
the late Sir Edward Bettifon, did execute the faid Leafe by their An-
and Releafe, and alfo fuffered this Recovery to the Ufe thaTthei^^ '
of himfelf in Fee, referring to the Deeds in their brother, the

y^-i n 1 " Tenant in

Cultody. Tail, fufFer-

ed a Reco-
very, decJaring the Ufe to himfelf in Fee, and refer to the Deeds in their Cuftody ; the Court
ordered, before the Hearing, the Defendants to leave with their Clerk in Court the Deeds
making the Tenant to the Pracipe, and leading the Ufes of the Recovery.

The

3^4 De Term, S. Trinitatis, 173^.

The Plaintiff, on Motion, without Notice, obtained
an Order from the Mafter of the Rolls, that the De-
fendants fhoiild produce, and leave with their Clerk in
Court, the Leafe and Releafe. Upon which I moved
the Lord Chancellor to difcharge fuch Order, for that
as the Defendants were Sifters and Heirs at Law to Sir
Edward Bettifon lately deceafed, and alfo Heirs to Sir
Ednrard Bettifon the firft Anceftor, and claimed under a
common 'AiTurance, the Court would not affift the
Plaintiff in picking Holes in their Title, nor compel
them, at leaft not before the Hearing, to produce their
Deeds ; that both Parties were Volunteers, in which
Caie it was not ufual for the Court to interpofe, or
give the leaft Afliftance to either.

Lord Chancellor : Though both Parties are Volunteers,
yet it is of fome Weight, that the (/) Honour of the
Family is defcended on the Plaintiff; and as at the
Hearing you admit the Court would do what has been
defired, fo it is for the Benefit of all Parties, that it
fhould be done before the Hearing ; for if the Deed be
a proper one to make a Tenant to the Precipe, the
Plaintiff will go no further, which will put an End to
the Suit. And the Defendants, by referring to the
Deeds in their Anfwer, have made them (g) Part
thereof. Wherefore I think the Order that has been
made at the Rolls a reafonable one, and will not fee
it alide.

(/) See the Cafe of The Earl of Suffolk verfus Howard, Vol. 2. 17S.
where this Cafe is mentioned in the Note.

(^) ^are. Whether the bare Referring to a Deed, without fetting it
for[h inhiec Verba, will make it Part of the Anfwer ? and fee ant' 135,
the Cafe of Hodfon verfus The Earl of IFarrington.

Chaplin

De Term. J. Trinitatis^ I???* 3^9

Chaplin verfus Chaplin. cafeg^.

Lard Chart'
«//«r Talbot.

'pORTER Chaplin, on his Marriage with i^«» hisonehasa
*^ Wife, fettled a confiderable Eftate of Inheritance ^"^"'^"^''«
on himfelf for Life^ Remainder as to Part on his Wife and"fs kill
for a Jointure, Remainder as to the Whole upon the La^dH
firft and every other Son of the Marriage in Tail Male, Fee^ and of
with Remainders over. Porur Chaplin had one Son and y^J^JJJj^
three Daughters, and being feifed of fome Fee-limple his Wiii de-
Lands, and particularly of an Eftate of about 30/. /'^f Jimpie 'Lnda
Annum^ not included in the Settlement, and likewife t^^'si^^ug'^-
feifed of a Leafehold Eftate for three Lives, did by his leavfng aiT*
Will devife all his Fee-fimple- Lands (except the Lands J'^ Children
of about 30/. per Annum) to his three Daughters in His widow
Fee, and gave feveral fpecifick Legacies, without ma- p^'j.^y'jj
king any Difpofition of the Lands of about 30/. ^^r both Eftates,
Annum, or of the Leafehold Eftate for three Lives, and J^ ^"^cij-"
died indebted by Bond in the Sum of 3000 /. and up- dren; and in
wards, and leaving Debts by fimple Contrafl: to very by'lle'sof '
near the Amount of his Perfonal Eftate, and leaving and Daugh-
all his Children Infants. th^MoXr,

for an Ac-
count of the Perfonal Eftate and of the Rents and Profits of the Real Eftate, the Motbet
fwears, that fhe has paid Bond Debts due from the Teftator out of the intailed Eftate, and
afterwards dies infolvent. As the Anfwer cannot be read againft the Daughters, and there
is no other Evidence, and fince the Guardian ought to have paid the Bonds only out* of
the Fee-fimple Eftate ; Payment fliall be intended to have been made only out of the Fundj
which ought to have borne it.

His Widow entered as Guardian to her Son, and
alfo to her three Daughters, upon their feveral E-
ftates, and in her Anfwer to a Bill brought by her
Infant Children to have an Account of the Real
and Perfonal Eftate of her late Hufband Porter Chap-
lin, file fvvore, that flie, during the Infancy of her
Son and Daughters, received the Rents and Profits of

Vol. III. 5 A the

^66 De Term, S. Trimtatis, I7?S'-

tlie Eftate fettled on the Son, and of the Fee-fimple
Eftate that was devifed to the Daughters, and that
out of the Rents and Profits of the Son's fettled Eftate
fhe payed the Bond Debts. Afterv/^ards the Mother
died infolvent.

Lord Chancellor : The Anfwer of the Mother cannot
be read againft the Daughters, who do not claim un-
der her ; it can only be read againft herfelf and her
Reprefentatives ; and fince it is not read to charge
her, but to charge her Daughters, it cannot be read
at all. ^

But then it being infifted, that the Bonds being paid
out of the fettled Eftate belonging to the Son, the
Mother's Adminiftrator ftiould ftand in the Place of the
Bond Creditors, and be intltled to recover the Money
againft the Fee-fimple Eftate devifed by the Teftator,
the Obligor in thefe Bonds, to his three Daughters, and
confequently, by the Statute of fraudulent Devifes,
liable to the Payment of the Bond Debts ;

Lord Chancellor: The Anfwer of the Mother not
being to be read againft the Daughters, and there be-
ing no other Evidence, I will preiume, that the Mo-
ther applied the Rents and Profits of the Daughters
Eftate towards the Payment of thefe Bonds, as far as
the fame would extend j for this is what in Juftice (he
ought to have done, in as much as the Rents, iffc. of
the Lands devifed by the Obligor were liable to the
Bonds in the Devifees Hands, and the Rents of the
Lands fettled on the Son were not liable: This I will
rather prefume, than that the Mother did what Ihe
ought not to have done, in applying the Rents, isfc. of
the Son's Eftate, that was iectled, towards the Dif-
charge of thefe Bond Debts, to which it was not liable.
And his Lordihip declared it was not material, whe-
2 tber

De Term. S, Trinitatis, 1739. 367

ther fhe did in Fa£l: apply thefe Rents, ilfc. of the
Daughter's Eftate towards the Bonds; for ttill thefe
Bents, i^c. when received by the Mother, fliall be
taken to reimburfe her what fhe had paid out of the
Son's fettled Eftate to the Bond Creditors ; for this
Money was at Home, when received by the Mother, One dies in-
and muft go towards reimburfing her, and finking her ^^^^^^ ^^^
Demands arifing by her having paid the Bond Debts, feifed 'in Fee
It was further held by the Lord Chancellor, that the Lani7'part
Lands permitted to defcend to the Son, the Heir at of which he
Law, muft be liable to the Bonds in the firft Place [A], J^^^ ^^.^^^
before the Lands deviled to the Daughters, and before Part he per-

1 r T" 1 T • IT) its to de- •

the Ipecinck Legacies. fcend to his

Heir; the
Lands defcehded fliall in" the firft Place be liable to pay the Bonds.

In the next Place, there arofe a Qj.ieftion, whether,
as the Leafehold Eftate made to the Father for three
Lives, came to the Son on the Death of the Father,
the Parol Iliould not demur during the Infancy of the
Son?

[A] The Reporter here adds the following Note : The Reafon why,
where a Man dies indebted by Bond, and devifes fome Lands to J. S.
and leaves other Lands to defcend to the Heir at Law, not mentioning
them in his Will, the Lands defcending to the Heir fhall be firft ap-
plied to pay the Bond Debts, is, becaufe the Applying the Lands de-
vifed to J. S. to pay the Bond Debts, would difippoint the Will, which
Equity will not permit, if it can be avoided j whereas it no way difap-
points the Will lo fay, that the Lands not mentioned fhould be in the
firft Place liable to pay the Debts. But it feems it would be otiierwife,
if the Teftator had devifed the Lands, though to his Heir at Law ; for
though fuch Devife were void, (as to the Purpofe of making the Heir
take by D>-'fcent) yet it Ihews the Teftator's Intent, that the Heir fhould
have this Land; and therefore (I take it) the devifed Lands to J. S. and
the other Lands devifed to the Heir at Law, fhall in this laft Cafe con-
tribute in Proportion to pay the Bond Debts. Alio, for the abovemen-
tioned Reafon, (I fliould think) the Lands permitted to defcend to the
Heir at Law, and not mentioned in the Will, fhall be applied to pay
the Bond Debts before a fpecifick Legacy, left otherwife the Teftator's
Intention fhould be dilappointed.

Whereupon

368 De Term. S. Trinitatis, 1739.

Lands are Whereupon his Lordflilp held, that in the Cafe of
^'"Tu'^t/' Lands in Fee defcending on an Infant, the Parol fliall

and his Heirs . . ^ . -r i r t

for three demur in Equity as well as at Law ; becaule an In-
dira^'hf" ^^"^ ^^ equally incapable of defending himfelf in one
Heir does Court as in the other ; and the equitable AlTets may
Def5nt,^fo be of as great Value as the legal; but where a Leafe
as to have his ig made to a Man and his Heirs, during three Lives,
mSe the° the Heir does not take by [B] Defcent, but as a fpe-
Paroi de- ^.j^j Qccupant, and fuch fpecial Occupancy was not lia-
takel as fpe- blc to pay Dcbts, uutil the Statute of Frauds made it
*^'^'^dio' Aflets; and though it be called a defcendible Free-
had it been hold, it is not leally a Defcent, being no more than
^f ^Un£\n if ^^^^^ 1^^'i t)een a (h) Defignation of any other Pertbn
Fee defcend- by Name to enjoy the Eftate for three Lives, after the
infant'/the Death of the Father, inftead of the Heir at Law.

Parol fhould

have demurred in Equity as well as at Law.

fnce^df""^' Laftly, In the principal Cafe, the three Daughters
Mainte- had two fcveral Sums of 1 0,000 /. left them, to take
Guar'ditli^ Effe£l: on their Father ?orter Chaplin^ dying without
muft be in jfTue Male that fhould attain the Age of Twenty-one,
what'^the'in- charged on feveral Terms for Years commencing on
h "d ''^? ^^^^ Contingency ; but the Daughters had otherwife
to what falls very little to fublift on; and the Mother had a very
wa^rds"" plentiful Jointure of about 1 000 /. per Annum, out of
which, for feveral Years, the Daughters were main-
tained ; and on the Son's dying without IlTue Male be-
fore Twenty 'one, the Daughters became intitlcd to the
additional Sums above-mentioned ; whereupon, after
the Mother's Death, on an Account taken of her Ai-

fets,

[B] For the fame Reafon, where a Diireifor makes a Leafe to a Man
and his Heirs, during the Life of J.S. and the LefTee dies, living 7. <S.
this (hall not take away the Entry of the DilTeifee. i Inji. 239.

(b) See ant* 263, the Cafe of Low verfus Burron,

De Term. S; TrinitatiSy IV^S"- 3^9

fets, her Adminiftrator demanded a liberal Allowance
for the Maintenance of thofe Daughters, who were
now fo plentifully provided for.

But by the Lord Chancellor: The Allowance to be
made to the Mother for Maintenance, mult have Re-
gard to what the Daughters were intitled to at the
Death of their Father ; and, until the Contingency
fell in, (hall not exceed the Income of fuch their ori-
ginal Portions.

Margaret and Ann Tour ton verfus cafe loo.
Flon^er &f al\ ^tZ..

yOHN Claud Tourton, a great Banker at Paris, made
his Will, and thereby gave feveral Legacies, and
made one Thelufon, a French Proteftant, Reliduary Le-
gatee, and one Hammond^ an Advocate of the Parlia-
ment at Parisy Executor, and died.

The Teftator had two Brothers, who were both dead ;
but each of them left a Son, who were (or at leaft al-
leged they were) next of Kin to the Teftator Tourton j
and thefe two Nephews commenced a Procefs at Paris
to fet alide this Will, pending which Suit, both the
Nephews died, and their Mothers, the now Plaintiffs,
took out Letters of Adminiftration to their refpeftive
deceafed Sons out of the Spiritual Court at Paris, and
then proceeded in their Suit to fet afide the Will of
Tourton. Whereupon a Sentence was obtained to fee
afide that Part of the Will, by which the Refiduum
was devifed to this Thelufon, by Reafon (as was faid)
that he was a Proteftant. The Sentence at Paris alfo
ordered, that Thelufon ftiould account for fo much of
the AlTets as he had received, to the now Plaintiffs,

Vol. IIL 5 B and

370 De Term. S. Trinitatis, 17 3 S*-

and deliver up to them all Securities, Books and Wri-
tings relating to the Perfonal Eftate of Tourton the Te-
ftator. Hammond the Executor died, and one Panfier
took out Letters of Adminiltration in the Prerogative
Court of Canterbury, with the Will of Tourton the
Banker annexed.

And now the Plaintiffs, the Mothers, brought their
Bill againft the Defendants Flower, and Fanfier the Ad-
miniftrator with the Will annexed, fliewing, that fe-
veral Bonds, Mortgages and Securities belonging to
Tourton the Banker, were taken in the Name of the
Defendant Flower, for which the Defendants ought to
account.

The Defendant Flower demurred, there being no Re-
prefentative of the Teftator Tourton before the Court ;
for though Vanfier, the Adminiftrator with the Will
annexed, was made a Defendant, yet it did not ap-
pear, but that Hammond the Executor had made a Will,
and left an Executor ; in which Cafe the Adminiftra-
tion granted by the Archbilhop of Canterbury to Panjier
would be void.

One fues as But by the Lord chancellor : Here being an Adminl-
wr^Jr'y^s ftration taken out of the Archbilhop's Court, I will
without look upon the fame to be good.

ftiewing,

that y. S. died Inteftate ; yet an Adminiftration taken out of the Arcbbifliop's Court fhall

be intended to be a good Adminiftration.

Then it was faid for the Defendant, that admitting
the Demurrer to be ill, for that there was a Repre-
fentative of the Teftator Tourton before the Court, ftill
there wanted proper Parties; becaufe there ought to
be Adminiftration taken out by the Plaintiffs, the Mo-
thers, to their Sons. Now, though the Mothers had
obtained Letters of Adminiftration in the Spiritual
I Court

anew aC
ore

De Term. S. Trinitatis, 1735'. 371

Court at P^w, yet this was Nothing to the Purpofe, t^o'Jj"'"^^!,'^^
as it could not be taken Notice of in our Courts ; and in a foreign
though, it was true, this was not the Demurrer upon p°"'x J,^/'
Record, yet the Defendant was at Liberty to demur at taken Notice
the Bar ore tenus, cZtT

Lord Chancellor : The Defendant may demur at the One may de-
Bar ore tenus ; and this Demurrer, for want of the [Je B?r
Plaintiffs having taken out a good Adminiftration to'^'"'^> but
their Sons, is a fufficient Caufe, for without it the bct"g a°no|yl
Plaintiffs can have no Right, and our Courts can take ^d, he can-
no Notice of what is done in the Spiritual Court be- cofts.
yond Sea; Therefore the Demurrer muft be allowed,
but tpithout Cofls ; becaufe the Demurrer on Record
was an ill one, and the Plaintiffs not to blame to argue
it ; but then neither ought the Plaintiffs to have Cofts,
the Bill appearing to be ill, and to want Parties, for-
afmuch as proper Adminiftrators to the Sons are not
before the Court.

Jslote; "What is faid in i Vern. 78, Durdant verfus
Redman, that Cofts ought to be paid for a new De-
murrer infifted on at the Bar ore terns, is Dot now
the Practice.

Taylor verfus Sharp. cafc loi.

Lord Chan-
cellor TaJbot.

IN this Cafe it was laid down as a Rule by the Lord if a Decree
Chancellor, that if a Decree be obtained, and that ^^a'Sied,
Decree inrolled, fo that the Caufe cannot be reheard fo '^lat the
upon Petition ; the Party grieved can in no Cafe fet be*rchSrd!
afide this Decree, or obtain Relief againft it by an ori- then there is
ginal Bill ; for then the Decrees of the Court would but by'fin/'

of Review,
which muft be on Error appearing on the Face of the Decree, or on Matters fubfequent
thereto, as a Releafe, or a Receipt difcovered fince.

372. De Term. S. Trinitatis, 1759.

be oppofite and contrary one to the other, which
would breed the utmoft Gonfufion. Wherefore the
only Remedy in fuch Cafe is by Bill of Review, which
mult be either for Error appearing upon the Face, of
the Decree, or upon fome new Matter, as a Releafe,
Receipt, ^c. proved to have been difcovered fince; for
unlefs this Relief were confined to fuch new Matter,
it might be made Ufe of as a Method for a vexatious
Perfon to be oppreffive to the other Side, and for the
Caufe never to be at Reft.

Cafe 102. J/ick verfus Edivards.

Lord Chan-
ctUorTzVoot.

Lands are A Ucvifcd Lauds to B. and C. and the Survivor of
and'l. Ind * them, and the Heirs of fuch Survivor, in Truft
S^wivor^° fell. The Eftate was decreed to be fold, and ic
in Truft to being referred to the Matter to fee, whether the Par-
feii; though j-jgg j,Q^^jj make a good Title, the Mafter reported,

the Inheri- . o ' i • i ^ i

lance be in that the Parties could' not make a good Title, there
ye^Te^Tru- ^^^"g "^ Fce-fimple in the Truftees, for that the Re-
iiees by a maiuder in Fee could only be vefted in the Survivor,
mXTgood^'^^ it was uncertain, which of the two Truftees would
Title by E- be the Survivor.

floppel.

Whereupon, Exceptions being taken to the Matter's
Report, the Lord Chancellor held, that the Truftees
joining in a Fine of the PremilTes would pafs a good
Title to the Purchafer by Eftoppel {i) ; that here the
Fee was in Abeyance, and as, where the eldeft (A) Son
of Tenant in Tail levies a Fine, and furvives his Fa-
ther, though he afterwards dies without Iff'ue, yet this
will pafs a good Title, as long as the Tenant in Tail
1 has

{i) ^(Sre, If any Thing could operate by way of Eftoppel in ;his
Cafe, bccaufe an Intereft paflfed? See i Inft. 45. a. 47. b.
. ^k) Brad/lock verfus Scovel, Cro. Car. 434, 543.

De Term. S. Trinitatis, 175^*. 37?

has Iflue, and thereby conclude the youngell Son,
who muft derive his Defcent from the eldeft, not-
withftanding the latter at the Time of the Fine le-
vied had nothing : So in the principal Cafe it was
certain one of thefe two Truftees muft be the Survi-
vor, and intitled to this future Intereft ; confequently
his Heirs claiming under him would be eftopped, by
Reafon of the Fine levied by their Anceftor, to fay
Vartes finis nihil habuerunty although he that levied the
Fine had at that Time no Right or Title to the con-
tingent Fee.

And it being faid by the Counfel, that the Heir of
the Devifor would join in the Conveyance to the Pur-
chafer ; his Lordfhip replied, that the Heir's joining
would fupply the want of proving the Will, but that
in every other Refpe6l: it would be void. And the
next Day his Lordfhip cited the Cafe of Weak verfus
Lower, in Pollexfens Reports, 54, where a Fine was
adjudged to pafs an Eftate not vefted, by way of E-
ftoppel, and to convey the Intereft of fuch Eftate which
accrued by the Contingency happening afterwards.

Lux f on verfus Stephens. ?^]'°^'

■*■ Lord Chan-

cellorT^\hot.

T^HE Plaintiff was the eldeft Son and Heir of J. 5. An Heir at
-*- and claimed as Iffue in Tail under a Settlement. ^ olfcridlnt!
The Defendant intitled himfelf under the Will of Te- anJ'nfiftso"
nant in Tail, and ftiewed that the Tenant in Tail had j,e{ha'ii have
fuftered a Recovery. The Plaintiff brought a Bill for '^'^ Cofts,
a Difcovery of the Writings and of the Deed of Settle- goes^againft
ment, and the Defendant infifted that the Intail was '''"Ij ?^"' '^

' an Heir at

cut oft by a Recovery. Law be

Plaintiff, and
mifcarries in his Suit, he (hall not have Cofts ; but on his Suit appearing to be groundlcl's,
fliall pay Cofts,

Vol. III. 5 C The

374 ^^ Term. S, Trinitatis, 1739.

The Caufe being heard, it was decreed that the
Writings fiiould be brought before a Mafter, and the
Bill retained for a Twelve-Month ; and in the mean
I'ime, the PlaintifF to try his Title in an Ejeflment.
Accordingly the Plaintiff brought an Eje£lment, when
a Verdidl: was found for the Defendant,

And the Matter coming on upon the Equity re-
ferved touching Cofts ; on the Behalf of the Plaintiff it
was obje£led, that he was an Heir at Law, and ap-
peared now to be a dilinherited Heir ; that he had a
probable Caufe of Suit ; and it was enough for him to
lofe his Eftate, without being punilhed with Cofts into
the Bargain, which would be affliBionem affli^o addere.

Lord Chancellor : When an Heir is made a Defendant
to a Bill brought to prove a Will, there he fliall have
his Cofts; (/) but in the prefent Cafe he is Plaintiff,
and comes here for the Aid of the Court, and to be
furnifhed with the Deed of Settlement, which Aid he
has had ; and at Length it appears that this his Appli-
cation to the Court was groundlefs, for that his Title is
barred by the Common Recovery of his Anceftor,
which prima facie is to be prefumed regular, and there
is no Fault in the Defendant, nor any Reafon he fliould
lofe his Cofts. On the contrary the Plaintiff", in con-
tefting the Common Recovery fuffered by his Anceftor,
appears to have been in the Wrong, and ought to pay
the Cofts of the Suit.

(/) Even though he crofe examines the Plaintiff's Witneffes, and re-
fufes to releafe his Right ; otherwife if he examines WitnefTes of his
own. See Vol. 2. 285. Biddulpb verfus Biddulpb.

Margaret

De Term. S. Irinitatis, 1759. 37?

Margaret Sharp verfus Richard Carter ^"'^ '°'^'
and William Evans. ^!tii?Zou

ON E William Jennings was feifed in Fee of the Defendant
Manor or Turner s Court in Oxprdjhire, and ha- anfwer what
ving no IfTiie nor Wife then Hving, and having a Sifter, cuffhim of'
the Plaintiff, that was his Heir at Law, (but whom he Mainte-
never correlponded with, nor Ihewed any Kindnefs to, buyi^,^g pre!
having frequently declared he would leave his Eftate to ^'^[ifcd Rights
his Wife's Son, one John Evans, with whom in his statute of
Life he had intrufted the Management of his Eftate 3^ ^^- 8.
and Concerns, and to whom he had given the Keys of
his Clofet where all his Writings were) : This William
Jennings made his Will dared the 5th of November
173 I, whereby he devifed the PremifTes to the faid
John Evans in Fee. But the Plaintiff^ fet up another
Will made fubfequent to the former, and bearing Date
the 18th oi January 1731-2, whereby the faid Teftator
Jennings deviled the Premifl'es to his Sifter the Plaintiff
Margaret Sharp in Fee. There were fome Circum-
ftances by which it appeared, that the Plaintiff Mar'
garet Sharp did herfelf feem to miftrull the Will under
which file claimed. But at Length flie brought an
Ejeftment, which being tried at the Aflifes at Oxon,
file there recovered a Verdift. Alfo fome Part of the
PremifTes being in Leafe, and the Leales in the Pof-
feflion of the Defendant Evans, who claimed under the
firft Will, the Teftator's Sifter Sharp brought her Bill
in this Court againit the faid John Evans, Ihewing that
the Leafes then fublifting of good Part of the Premifl'cs
did hinder the Plaintiff's Proceeding in the Ejeifmenr,
and praying that the Matter might be tried by an Iffue,
Devijavit vel non.

The

37^ De Term. S. Trinitatiy, 1737.

The Court direfted the faid IlTue to be tried at the
Bar of B. R. by a fpeclal Jury, which accordingly was
tried, and a Verdift found for the Plaintiff" the Tefta-
tor's Sifter.

Whereupon a Decree was made, that the Plaintiff
fhould hold and enjoy the Premifles ; and that the
Defendant Evans Ihould deliver up all the Deeds
and Writings to her. The Title Deeds were demand-
ed of the Defendant Evans, and he, for not delivering
them, imprifoned in the Fleety where he died. And
now the Plaintiff Margaret Sharp the Sifter brought a
Bill againft the Defendant Carter and William Evans, the
Son and Heir of the faid John Evans, fetting forth
thefe Recoveries of the two Verdifts j that the De-
fendant Evans's Father died in Prilon in Contempt,
without having delivered up the Title Deeds ; and that
the Defendant Carter had got feveral of thefe Deeds in
his Poffeftion, pretending to have made a Contrafl with
the faid John Evans (the Devifee by the firft Will) for
the Purchafe of the Real Eftate late of the faid William
Jennings, and to have advanced fome Money on that
Account ; and the Bill charged, that if the Defendant
Carter did make any fuch Contraft, it was afcer he had
Notice of the Will under which the Plaintiff claimed ;
and that fuch Money was advanced by the Defendant
Carter on Account of Suits, and to carry them on.

As to fuch Part of the Bill as prayed a Difcovery of
any and what Monies were paid or advanced by the
Defendant Carter to Evans, on Account of the Suits in
the Bill mentioned, or for carrying on the fame ; it
appearing that the Defendant Carter was not a Party
to the faid Suit in the Bill fo charged to have been
carried on : The Defendant Carter demurred thereto ;
I for

De Term. S. Trinitatis, 175^. 377

for that the Praying of fuch Difcovery had a Tendency
to charge the Defendant with Maintenance. Alfo, as
to fuch other Part of the Bill, which fought to dif*
cover any Contrafl or Agreement made or fuppofed
to be made between the Defendant and the faid Evans,
for the Defendant Carters becoming a Purchafer of any
Part of the Real Eftate in the Bill mentioned to have
been late the Eftate of the faid William Jennings ; the
Defendant pleaded the Statute of 3 2 H. 8. cap. 9. fe^.
2. made againft Selling or Contrafting to fell any pre-
tenjed (/. e. controverted) Rights or Titles, " Whereby
*' the Perfon bargaining, giving or felling, their An-
** teceflbrs, or they by whom they claim, muft have
*' been in PoiTeflion of the fame, or of the Reverfion
*' or Remainder thereof, or have taken the Rents or
Profits thereof, by the Space of one whole Year next
before the faid Bargain, ^c. made ; upon Pain that
he that fhall make any fuch Bargain, Sale, Cove-
** nant, Promife or Grant, fhall forfeit the whole
" Value of the Lands, ^c. fo bargained, ^c. and
" that the Buyers and Takers thereof knowing the
*' fame, fliall forfeit alfo the Value of the faid Lands,
** ^c. fo by him bought and taken as aforelaid, one
** Moiety to the King, the other to the Informer."
And in Regard that, if any fuch Contra£l or Agree-
ment had been made betwixt Evans and the Defen-
dant Carter for his becoming a Purchafer of the Pre-
mifles, it was made after that Evans was put out of
PolTellion by Order of this Gourt, and a Receiver ap-
pointed for the fame ; the Defendant pleaded the
laid Statute of 32 H. 8. and that the Plaintifl's feek-
ing fuch Difcovery did tend to fubjeit the faid Defen-
dant to the Forfeiture of the Value of the Land in the
Bill charged to have been contracted for ; and the De-
fendant difdaimed any Right to the PremifTes otherwife
than by a Mortgage that he had thereon, and diiclaimed
Vol. III. 5 D any

378 De Term. S. Trinitatis, 17 ^S*-

any Right to the Title Deeds ; and by his Anfwer
faid, he had delivered back all the Taid Deeds to the
Mortgagor Evans, from whom he received the fame.
Alfo, the Defendant by his Anfwer faid, that at firft
he lent i oo /. to the faid Evans on his Bond only, and
that he afterwards lent another i oo /. to the faid
Evans., and took the faid Evans's Mortgage of the faid
Manor for his Security.

It was faid for the Defendant Carter, that the Bill
as to him, being only for the Title Deeds, and he
having fvvorn that he had delivered all of them back
to Evans the Mortgagor, from whom he had received
them ; the Reft of the Charge of the Bill could not
be relevant ; but now appeared to be thrown in only
to fatisfy the Plaintiff's Curiofity, or to fubje£l: the
Defendant to further Trouble on fome Criminal Pro-
fecution ; and that the Advancing of Money towards
carrying on a Suit to which the Defendant was no
Party, muft be Maintenance, iinlefs where the Perfon
fo advancing, i^c. be the Hufband, Father, or Guar-
dian, and fo on that Account allowed to difburfe the
Money ; and that if this were but doubtful, the Gourc
ought not to compel an Anfwer.

On the other Side it was urged, that the Advancing
Money, unlefs the Party advancing was to have Part of
the Thing recovered, is not Maintenance.

Lord Chancellor : Unlefs every Advancing of Money

towards carrying on a Suit for a third Perfon, be

A Perfon in- Maintenance, (which I think is not) then the Defen-

th'^^Premilres ^^'^^ C<?rf^r cannot in the prefent Cafe be guilty

(asaMort- thereof J becaufe he appears to be a Party intereft-

gagee) tho'

he be no Party to the Suit, may expend Money in fupporting the Title, without being guilty

of Maintenance,

A ed

De Term. S. Trinitatis, 1739. 37P

ed {m) by Virtue of the Mortgage fo made to him
as aforefaid ; and though he be no Party to the Suit,
yet as he claims a Mortgage on the Eftate, he may
lay out Money in fupporting the Title: Wherefore
this not being Maintenance, the Demurrer is ill.

But the Plea of the Statute of 52 H. 8. againft
Contra£ling for pretenfed, i. e. controverted Rights,
feems to be good. Not that I think the Appointing The Ap-
a Receiver is, in every Cafe, a Turning the Party Receiver \
out of PofTeffion. For Inftance, where an Infant is "°' '" ^'^
intitled, in fuch Cafe there can be no Colour to fay, Turning the
that the Appointing a Receiver (which is truly and p^'iL°"' °^
properly the Hand of the [C] Court) puts the In- as where a
fant out of PolTeffion. But where there is an adver- ^^'^'^.'^".'%
fary Suit, and two Perions (as m the preient Cafe, an infant's
the Plaintiff Sharp and Evans) are contending for the ^,0^03^
Right, and the Plaintiff Sharp brings her Bill againft the Re-
Evans, in order to recover the Polleflion ; and Sharp feirlon ^is t°hc
having on the firft Verdift obtained by her, procured r-^^ffcffi'm of
a Receiver to be appointed, and fuch Receiver having but on the'
been, on the laft Verdi6l that was recovered at the ^pp^J"^'"? *
Bar of the King's Bench, ordered to furrender up an adverfary
the PofTeffion to the Plaintiff Sharp : I cannot in this ^"'^' ^\

-*■ where the

Cafe, call the Poffeffion of the Receiver, the Poffef- PiaintifF in
fion of the Defendant Evans; but rather the Pof- p'^"^<="^

' has recover-

feffion of the Plaintiff" Sharps who appears to have ed a Ver-
the Right to the PremilTes. Neither can I fay or t,!f^ 'r^!'^

ceiver's Pof-
feflion feems to be the Poflefllon of him that has the Riglit to it.

(m) See Mo. 656.

[C] For this Reafon the Come will proceed to put a Receiver in
Poffeffion in a fummary Way, and will order the Tenants to attorn
to him, and grant him a Writ of Affillance, without firft awarding
an Injunflion for the Poffeffion, which in other Cafes u, the ufual Pro-
cefs. 4th of 0^. 17 1 8. by the Lord Parka:

hold.

380 De Term. S. Trinitatis, 173^.

hold, that the Defendant Evans was the Perfon in
Pofleflion for a Year next before the Defendant G?r-
ter% Contrafting for the Purchafe of the Eftate ; and
fince it may be putting a Difficulty on the Defendant
Carter to compel him to anlwer to this Part of the
Bill, I do therefore allow the Plea of the Statute of
32 H. 8. againft the Contra£ling for pretenfed (or
controverted) Rights or Titles.

D E

38i

D E

Term. S. Michaelis^

1735-

Blue verfus Marshall &' Ux'. cafe 105.

Lord Cban-
<■<■//»>• Talbot.

On the Defendant's Exception to the Mcifier's
Report, after Hearing.

THE PlalntifF was the Widow of jfames jB/«^, Tho>, gene-
who by his Will gave a Legacy of 200/. tolngfalExI
Truftees, in Truft for the Teftator's Wife for her Life, ^cutor or
and afterwards for his Daughter the Defendant, ^w» compound-
Mar/Jjall, for her Life, and afterwards to her Children i"S°'' ';'^-
the Plaintiffs. The Bill was brought to compel the Debt, muft
Defendant Marjhall, and his Wife, (who, on the Exe- "'^^''^J^l
cutor's Renouncing, had taken Adminiftration to her yet, it th'is
Father with the Will annexed) to pay this 200/. into J^J^"^'^^"^^^
the Hands of the Truftees, to the Intent the Plaintiff, the Benefit
the Widow, might have the Intereft for her Life, ifbte, it'L
The Defendant inlifted upon Want of AfTets. **" Excuie,

Vol. IIL y E On

38z Dc Term. S, Michael'is, 1759.

On the Hearing of the Caufe the Decree was, that
the Defendants (hould account for fuch Part of the
Perfonal Eftate of the Teftator Blue, as came to the
Defendants Hands, or to their Ufe. The Mafter re-
ported, that the Teftator Blue was polTeffed of a Term
for lixty Years in a MefTuage and Lands at Bethnal
Green, in Middlefex, which the Teftator had let to
one Dallotp for thirty Years, at i oo /. per Annum,
which Leafe was decreed, among other Things, to be
fold for the Payment of the Teftator's Legacies ; and
that at the Time of the Death of the Teftator there
was 125/. due for one Year and one Quarter's Rene
of the faid Meft'uage and Lands ; that after the Te-
ftator's Death there was i cc /. more due for a Year's
Rent ; and that the faid Dallotp the 1 enant loon after
became infolvent, and unable to pay the laid Arrears of
Rent, being 225/. upon which the Defendant Mnrfljall,
and his "Wife, without confulting the Plaintiff, relealed
to the faid Dallorv not only the faid Arrears of Rent
amounting to 225 /. but alio gave him 20/. out of his
\_Marfl)alh~\ own Pocket, upon Condition that the Te-
nant fliould forthwith quit the Pofleffion of the faid
Alelluage, which accordingly he did ; and thereupon
the Leafehold Premiftes were fold for the Purpofes in
the Decree ; but the Mafter charged the Defendant
with the faid Arrears of Rent of 2 2 5 /. it being the
voluntary A61: of the Defendant to releafe them ; but
allowed the Defendant the 20 A which he had paid out
of his own Pocket. Upon which the Defendant ex-
cepted to that Part of the Mafter's Report.

And for the Plaintiff it was obje£led, that whenever
an Executor, Adminiftrator, Guardian, or Truftee, will
of his own Accord releafe a Debt, this being his vo-
luntary A61:, he ftiall anfwer for it j and the rather
I in

De Term. S. Michaelis, 17 3^** 38?

in the preient Cafe, for that the Defendant, who made
the Releafe, ought to have firft afked the Plaintiff
for her Confent to the Making of the Releafe ; or, in
Cafe of Obiliinacy in her, to have applied to the Court
for their Direflions in the Matter ; and though it
might be true, that the Tenant was at that Time in-
folvenr, yet hereafter he might hecortie folvent, and
able to pay the Rent ; whereas, in Cafe the Tenant
fhould ever become capable of paying the Rent, this
Releafe would extinguilh it; and as to the Gaining of
the Poffeffion, that was of no great Value, there being
a Provifo in the Leafe for the Landlord's Re-entry in.
Cafe of Non-payment of the Rent ; fo that the Te-
nant's giving up the Poffeffion was no more, than
what the Landlord could recover by Law, without the
Confent of the Tenant.

Lord Chancellor contra : The Defendants are decreed
to account for all the Perfonal Eftate that came to
their Hands, or to their life ; but thefe Arrears of
Rent were neither received by them, nor did they
come to their Ufe ; and the Tenant becoming infol-
vent, the Eftate has not fuffered by this Releafe, in
Regard, if the Arrears of Rent had not been releafed,
the Defendant could never have gotten them, when the
1 enant was unable to pay them ; and if the Tefta-
tor's Eftate has not fuffered on Account of this Re-
leafe, there is no Reafon it fhould gain thereby.
The Defendant feems to have done Nothing, but
what was prudent. A vexatious Tenant may put his
Landlord to great Troub-le and Delay, by a wrongful
Detainer of the PofTefTion, and by damaging the Eftate
in the mean Time, and may force the Landlord to
Eje£lments, Writs of Error, and Bills in Equity, by
Means of which he may lofe not only his accruing
Rent, but his Cofts of Suit j fo that this Releafe feems
to be for the Benefit of the Teftator's Eftate.

Neither

384 De Term. J". Michae/is, I'J'^').

Neither will I make a Difference between the 20/.
allowed by the Defendant, and the Releafe of the Ar-
rears of Rent ; for both were but one intire Coniide-
ratlon for the Tenant's quitting the Pofllffion ; and
by the fame Reafon that the Defendant has been al-
lowed the one, he ought to be allowed the other. It is
moreover a ftrong, prefumptive Argument, that the
Defendant has a£led fairly, and according to what he
thought was for the Advantage of the Ellate ; lince the
other Defendant, his Wife, is to have the Benefit of
the 200/. (now fued for) after the Widow's Death,
for the Advancement of her and her Children, and
confequently is a Sufferer by the Tenant's becoming in-
folvent, as well as the Widow.

Therefore allow the Exception, and let not the De-
fendant be charged with thefe Arrears of Rent.

Cafe 106. yjipto/f verfus y^Jhton.

On an appeal from a Decree at the Rolls.

Lord Chan-
ff//«r Talbot

One devifes '-y^ H E Cafe was thus : The Teftator , had no more
\,cocrsouth -■- than 5360/. South Sea Annuity Stock, but by his
^'^ Sfock to 'yyjii bequeathed the Sum of 6000/. South Sea Annuity
the feftator Stock to Truftces, in Truft to fell and inveft in Land
''**6o/' no ^° ^^ fettled on his Nephew the Plaintiff for Life,
more than Remainder over ; and until the Purchafe fhould be
£ii^paf°/' niade, the Nephew to have the Interert or Dividend
and the Reft of the South Sea Annuity Stock for his Life. The
tor's Perfo-^Qi^^l^it)'^ was, whether the Reft of the Teftator's Per-

nal Eftate

not be obliged to make it up 6000 /, but U might be gtlierwife, if the Teftator had no

Stock at all.

2 fonal

De Term. S Michaelis, I73<^. 389

fonal Eftate, which was very confiderable, ftiould be
liable to make it up 6000 1, or whether no more pafTed
by the Will, than the Stock which the Teftator was
pofTeffed of at the Time of making his Will^ and at
his Death ? .

The Matter of the Rolls had decreed, that no
more pafTed by the Will than the 5 3 60 A South Sea
Annuity Stock, which the Teftator was pofTefled of.
And now the Caufe coming on before the Lord Chan-
cellor upon an Appeal,

It was argued for the Plaintiff, that the Deficiency
ought to be made up out of the Reft of the Teftator's
Perfonal Eftate ; for that here was plainly a Miftake in
the Teftator, who intended the full Legacy of 6^000 /.
that this was a fpecifick Legacy, which in Law is fa-
voured, and allowed a Preference before others ; that if
the Teftator had at that Time had no Stock at all, the
whole Legacy muft have been made good out of the
Reft of the Perfonal Eftate ; and there feemed to be
ftill more Reafon to fupply this fmall Deficiency ; and it
was compared by Mr. Fa-xiakerly to the Cafe in 2 Leon,
of a Man's deviling his Land in fuch a Place, where
he happened to have no Land, but had Tithes, and it
was held, that the Tithes ftiould pafs.

But the Lord Chancellor affirmed the Decree at the Specified Le-
Rolls, obferving, firfl. That though fpecifick Legacies fomTiie^ "*
have in fome Refpefts the Advantage of thofe that are ^w^^ they

r 1 • 1 • 1 • . have the Ad-

pecuniary, lo as to be paid in toto, and not in Aver- vantage, fo
age, on a Deficiency of Aflets ; yet in other Refpe£l:s '" °^^'"^
they are diftinguiflied to their (a) Difadvantage from ofLvIn-
pecuniary Legacies ; as fuppofe they ftiall have been ^^^^' "'^ p^*
loft or aliened by the Teftator in his Life-time, they ones.
muft then fail in toto.

(a) See Vol. i. 540, Hinton verCus Pink.

Vol. III. 5 F Secondly ^

386 De Term. S. Michaelis, 173^.

Where the Secondly , That where one devifes a Debt due to him,
^ifeToebt ^f^^^ which the Debtor, uncalled upon, pays in the
and after- Debt to the Teftator in his Life-time ; this would cer-
Svel It,' or tainly be no Ademption of the Legacy ; here being no
even calls it ^Q^ Jone by the Teftator himfelf, but by the Debtor,
Cafe is this who might obligc the other to receive his Money ; and
an Ademp- ^ j^^j. [^^ indeed he thought it would be, where the Te-
Legacy. ftator himfelf fiiould (b) call for the Debt, feeing this
might be done from an Apprehenfion of fuch Debt
being in Danger, and with a Defign to fecure it, and
being Perfonal Eftate, and not diminifhed by remain-
ing in the Teftator 's Cofter, inftead of the Hands of
the Debtor, it may well pafs by the Will.

But that, thirdly, in the principal Cafe it did not
appear the Teftator ever had more than the 5360/.
South Sea Annuity Stock ; and regularly fpeaking, with-
out fome plain Words manifefting an Intention to that
Purpofe, no Property fhall pafs, but what the Teftator
was himfelf poiTefted of; that it is more natural to
fuppofe a Man intends to give what he has, than what
he has not ; that in the Cafe cited from Leonard's Re-
One has noports, the Tithes were held to pafs, as thefe are iffuing
but" hi" '^' «^^t of the Land, and are Part of the Profits thereof;
Tithes there, b^^t principally, becaufe the Teftator having no Lands
all his^ La^nd there, the (c) Whole muft otherwife have been rejected ;
'"/• ''^e and fo pofiibly in the principal Cafe, had the Teftator,
they are ifTu- when lic made his Will, iffc. had no Stock at all, the
ing out of Whole i-nipht have been to be made good out of the Reft

the Land, -in t i i

and Part of of the Pcrtonal Eitate ; whereas the Stock he was then
Sere^offftaii po^eft'ed of does in fome Meafure fatisfy the Will.

pafs.

(l^) See Vol. I. 465, Earl of Thomond verfus Earl of Suffolk \ and
Vol. 2. 470, 471, Ford verfus Flemming.

(f) Agreeably to the Cafe of Day verfus Trz^, Vol. i. 286.

Goodnyn

De Term. S, Michaelis, 17 j^*. 587

Goodvjyn verfus Lifter. cafe 10;.

Lord Chan-
<-f//i7r Talbot.

(Thomas Goodwyn, the Plaintiff's Father, entered The Statute
•»■ into Articles \mth Thomas Poole, dated the 17 th oi^lf^^fj"^^^
March, 1729, for the Purchafe of a Tenement called *« convey,
Har dings-Millwood, by which Poole covenanted for him- to plain and
felf and his Heirs, to convey the faid Tenement be- ^'p^^''

c 1 n r fi r ■ i-^ rults, not

tore the 2 lit or March then next enluing ; and intofuchas
Confideration thereof, Goodvpyn covenanted to pay 705 /• or^Suc'-
the Purchafe Money. tjve only.

Poole died in the December following, before any Con-
veyance was made in Purluance of the Articles : Upon
whofe Death the Premiffes in Qiieftion defcended to Hart'
nah the Wife of Thomas Lifler, and Elizabeth the Wife
of William Ford, (two of the Daughters of the faid
Poole) and to Richard Bagnal, an Infant, the eldeft Son
of Mary Bagnal, the third Daughter of the faid Poole,
Goodtpyn the contra6ling Purchafer died, and the Plain-
tiff, as his eldeft Son, and Heir at Law, brought this
Bill to have the Eftate conveyed according to the
Direflions of his Father's Will, upon Payment of the
Purchafe Money by the Executors therein named. To
this Bill amicable Anfwers were put in, fubmitting to
the Dire£lion of the Court.

The only Queftion was, whether the two Daughters
of Thomas Poole, and Richard Bagnal the Heir at Law
of the third Daughter, were Truftees within the a£1:
of 7 Ann^c, cap. 19. intitled, " An a£1 to enable In-
fants, who are feifed or poffeffed of Eftates in Fee
in Truft, or by way of Mortgage, to make Con-
veyances of fuch Eftates j" for if they were within
that Statute, then they might be decreed to convey,

though

388 De Term. S. Michaelis, 1739.

though Richard Bagnal was an Infant : But if the Ar-
ticles did not raife a Truft within that Statute, in fuch
Cafe the Plaintiff could only have a Decree, that the
two married Daughters, who were of Age, fliould con-
vey immediately what was veiled in them by Defcent;
and that he (hould hold the Share of the Infant till
he came of Age, with Liberty for the Infant then to
Ihew Caufe, why he fhould not convey fuch Share
according to the Articles.

Lord Chancellor: There can be no Doubt with Re-
gard to exprefs Trufts by Deed, but that an Infant,
being a mere Truflee, may be ordered to convey ;
and there is no Inconvenience in directing an Infant
to part with an Eftate, which is of no Benefit to
him. But the prefent Qiieftion is, whether this, be-
ing a Truft only by Conflru6iion of Equity, be within the
A61 ; and here I incline ftrongly to the Negative. In-
deed, with Regard to its being a Truft, there can be
no Doubt, but that it is fo ; for whenever one Man
enters into Articles for the Sale of an Eftate, and agrees
to convey it to another, in Conlideration of a Sum of
Money engaged to be paid by that other Perfon ; from
the Time the Articles ought to be performed, the one
becomes intitled to the Eftate, and the other a Credi-
tor for the Purchafe Money ; and fo there can be no
Difficulty in decreeing a Performance of the Articles.
But I cannot think conftruftive Trufts to have been
within the View of this A£1 of Parliament, which does
not make Provifion for Infants to convey in Purfuance
of the Decrees of this Court, but only gives Power to
make Orders in a fummary Way, in Cafes that are
originally plain, and uncontroverted by the Parties.

Wherefore, this Cafe feeming to his Lordfliip to be
left to the Common Law, as that ftood before the Ma-
king of the A£t, it was decreed, that the two Daughters
I fhould

De Term, S. Micbae/is, 17 5^ y^9

ihould convey imnlediately, and that a Dsy ihould be
given for the Infant Ba^nAl to Ihew Caul'e within fix
Months after he lliould come of Age, with Liberty to
the Plaintiff to apply to the Court, in Cafe any Prece-
dents could be found, where fuch conllruftive Trufts
had been held to be w^ithin that Statute. See Vol. 2.
549, Ex Parte Vernon, [a]

[A] A. owed feveral Debts, and by his Will devifed Lands in Fee to
an Infant, charged with all his Debts and Legacies : The Perfonal Eftatc
was greatly deficient, and the chief End of the Bill was, that the Infant
might be enabled to fell fo much of the Real Eftate, as would fuffice for
the Payment of the Debts and Legacies. It was admitted the Infant
could not (as yet) be faid to be a bare Truftee for the Creditors, i^c. fincc
he had the Surplus (the greatell Part of the Eftate) to his own Ufe-, but
it was infifted, that when the Mafter fhould have afcertained the Debts,
fet out what were the proper Lands to be fold, and what would be fuffi-
cient for the Payment of the Debts and Legacies, then the Infant as to
thefe Lands would be a bare Truftee ; and as this ASi. was remedial,
and made to fupply what was before a Defeft in the Law, it was but rca-
fonable to inlarge it by the rnoft favourable Conftruiflion.

Cur' : It is very true, this is a remedial Law; but ftill the principal
Cafe is not within it, in Regard the Ad only extends to Cafes where the
Infant is a bare Truftee originally, and at the Death of the Teftator, not
•where he is made fuch by feveral fubfequent Ads done by a Mafter, in
fetting forth what Debts and Legacies there are, how tar the Perfonal
Eftate is deficient, and what Part of the Land is fit to be fold; which
Report will confift of feveral Matters, which the Infmr, when of Age,
may be advifed to controvert ; and therefore this will not render the In-
fant a Truftee for thefe Lands within the Ad. For which Reafon the
Court refufed to make a Decree, that the Infant fhould join in the Sale,
but direded the Mafter to take an Account of the Debts and Legacies,
and of the Perfonal Eftate, and what Deficiency there was therein, as
alfo what Part of the Real Eftate was fitteft to be fold ; the Infant to
convey when of Age, unlefs he ftiould ftiew Caufe to the contrary within
fix Months after he ftiould come of Age. At the Rolls, Anonymous,
Trinity Vacation, 1730.

See 4 Geo. 2. cap. lo. whereby Ideots, Lunaticks, ^c. or their Com-
mittees, by the Diredion of the Lord Chancellor, may affign over their
Trufts or Mortgages, and be ordered to make fuch Conveyances, in like
Manner as Truftecs or Mortgagees of fane Memory.

YoL. III. 5 G Dnh

390 De Term, S. Michaelis, 17 ^S*-

Duke of Somerfet verfus Cookfon.

Cafe 108.

Ltrd Chan-
f^/for Talbot.

ABiiiHesw^TpHE ignite of Somerfet, as Lord of the Manor of
Delivery of -*- Corbvidge, in Northumberland, (Part of the Eftate
an Altar- ^f j.j^g Piercvs latc Earls of Northumberland) was in-

riece or o- , -^ . /^ -i

ther Curiofi- titled to an old Altar-Piece made of Silver, remarkable
ty m Specie, f^^ ^ Greek Infcriptlon and Dedication to Hercules. His
Grace became intitled to it as Treafure Trove within
his faid Manor. This Altar-Piece had been fold by
one who had got the PofTeffion of it, to the Defendant,
a Goldfmith at Nerp-Caftle, but who had Notice of the
Duke's Claim thereto. The Duke brought a Bill in
Equity to compel the Delivery of this Altar-Piece in
Specie, undefaced.

The Defendant demurred as to Part of the Bill, for
that the Plaintiff had his Remedy at Law, by an Ac-
tion of Trover or Detinue, and ought not to bring his
Bill in Equity ; that it was true, for Writings favour-
ing of the Realty a Bill would lie, but not for any
Thing merely Perfonal ; any more than it would for
an Horfe or a Cow. So a Bill might lie for an Heir-
Loom ; as in the Cafe of Pufey verfus Pufey, i Vern.
275. And though in Trover the Plaintiff could have
only Damages, yet in Detinue the Thing itfelf, if it
can be found, is to be recovered ; and if fuch Bills as
the prefent were to be allowed, half the Adions of
Trover would be turned into Bills in Chancery.

On the other Side it was urged, that the Thing
here fued for, was Matter of Curiofity and Antiquity ;
and though at Law, only the Intrinlic Value is to be
recovered, yet it would be very hard that one who
comes by fuch a Piece of Antiquity by Wrong, or it
I may

. De Term. S. Micbaelis, 173^. 391

may be as a TrefpafTer, fhould have it in his Power
to keep the Thing, paying only the Intrinfic Vahie
of it : Which is like a Trefpaffer's forcing the right
Owner to part with a Curiolity, or Matter of Anti-
quity, or Ornament, Nolens volens. Befides, the Bill
is to prevent the Defendant from defacing the Altar-
Piece, which is one way of depreciating it ; and the
Defacing may he with an Intention that it may not be
known, by taking out, or eraling fome of the Marks
and Figures of it ; and though the Anfwer had denied
the Defacing of the Altar-Piece, yet fuch Anfwer could
not help the Demurrer ; that in itfelf nothing can be
more reafonable than that the Man who by Wrong de-
tains my Property, fhould be compelled to reftore it to
me again in Specie ; and the Law being defe£live in
this Particular, fuch Defe£l: is properly fupplied in
Equity.

Wherefore it was prayed that the Demurrer mighc
be over-ruled, and it was over-ruled accordingly.

Lav) verfus Laii).

ji.

Cafe 10^.

Lord Chan-
'cellorTd\bot.

By the Intereft which he had in the Commit- ^^l^^^'
" lioners of Excife, procured for his Brother B. a theCommiA
Supervifor's Place in that Office, and in Confideration ETcire,"eets
thereof, B. gave a Bond for the Payment of i o /. pey •»" o^'^^ '/^
Annum to A, by Half-yearly Payments, as long as B. of the Reve-
fhould continue in the Office. B. died, havin^ for ""^ ^."'^^^•
lome Years omitted the Payment or this annual Sum faieration
of 10/. whereupon A. fued the Bond againft ^^'^^f^^^^j.foj
Widow and Executrix of B. who at Law pleaded a to pay iiim
fliam Plea of Payment, and now brought this Bill to .^/^^f^';
be relieved aEainll: the Bond, enjoys the

^ Place; Equi-

ty will re-
lieve againft
Pq^ the Bond.

392. De Term. S. Michael'n, 173^*-

For the Defendant it was obje£ied, that the Bond
was admitted to be good at Law by the Plaintill's not
being advifed to plead the Statute of 5 <o^ 5 Edvp. 6.
againft the Sale of Offices ; neither truly in this Cafe
could the A£1 be pleaded, being made Ion" before the
Excife became a Branch of the Revenue ; that the Law
being with the Defendant, it would be hard to take
the Benefit thereof from him, efpecially when he was
not Plaintiff in Equity, prayed no Aid of this Court,
and had been guilty of no Fraud ; that though the
Bond in Qiieflion had on a (d) former Occafion, been
called a Place-Brocage Bond, and repreiented as equally
mifchievous with a Marri:.ge-Brocage Bond, yet it
could with no Reafon or Juitice be relembled to a
Marriage-Brocage Bond, which had indeed at Length,
in the Cafe of Potter verfus Hall, [B] (though after
great Litigation and Difference in Opinion) been con-
demned in Equity, with a View to obviate a growing
Mifchief, occalioned by Servants and other mean Per-
fons taking thefe Bonds for procuring Marriages into
great Families, which produced very unequal Matches,
to the unfpeakable Uneahnefs and Difcomfort of
Friends on Account of fuch Alliances : Whereas the
prefent Cafe could be attended with no fuch Inconve-
niencies ; for if the Officer who gave the Bond, Ihould
be thereby induced to a61: corruptly, or be guilty of
Extortion, he would be punifhable in another Manner,
by Indi£lment for luch Corruption or Extortion ; and
2 if

{d) On a Motion for an Injundion, which the Court granted in
'January, 1733.

[B] This was a Bond for affilling in promoting a Marriage, which
afterwards took Efted. The Caufe Was heard tirft betore Sir John
Trevor, Mafter of the Rolls, who relieved againft the Bond ; afterwards
the Lord Somwers reverfed the Decree at the Rolls, but the Lords re-
verfed the Decree of Reverfal. Cafes in Pari. y6. See alfo the Cafe of
Roberts verfus Roberts, ant* 76.

De Term. S. Michaelis, I73<7. 393

if found Guilty, would forfeit his Place : That it
could be no Objeflion that the whole Salary or Profits
belonging to an Office ought to be received by him
that executed it, for this was frequently otherwile, and
yet tolerated both in Law and Equity. Nay, in fome
of the greateft Offices of the Courts in Weftminfler'
Hall, the Deputy who executed the Office had com-
monly but a fcanty Allowance, the greateft Part of
the Profits going to the Principal, who underwent
none of the Irouble.

But by the Lord Chancellor : Bonds and Engage-
ments of this Nature are highly to be difcouraged.
Merit, Induftry and Fidelity, ought to recommend Per-
fons to thefe Places, and not Intereft with the Com-
miffioners, who, it is to be prefumed, had they known
from what Motive the Plaintiff at Law applied to them
on Behalf of his Brother, would have reje£led him.
The Officer's giving Money to a Friend of the Com-
mlllioners for his Intereft, is altogether as bad as giving
Money, or a Bond for Money, to the Commiffioners
themfelves, which undoubtedly would have been re-
lieved againft. It is a Fraud on the Publick, and
would open a Door for the Sale of Offices relating to
the Revenue. I'he Taking away from the Officer
what the Commiffioners and the Treafury think to be
but a reafonable Reward for his Care and Trouble, and
an Incouragement to his Fidelity, muft needs be of the
moft pernicious Confequence, and induce him to make
it up by fome unlawful Means, fuch as Corruption
and Extortion. And though the Excife was no Part of
the Revenue at the Time of making the Statute of
^ i5f 6 Edw. 6. yet there may be good Ground to
conflrue it within the [C] Reafon and Mifchief of

Vol. IIL 5 H that

[C] Ir is no new Thing, but ufual, that an Intereft raifed by a fub-
fequenc Statute, Ihould be under the fame Remedy and Advantage as

394 ^^ Term. S. Michaelis, 175?-

that Law, which is rather a remedial than a penal
one.

But fnppofing it to be a good Bond at Law, fo are
all Marriage-Brocage Bonds j which yet are juftly con-
demned in Equity, as introdu6live of infinite Milchief;
and their having been much litigated and conterted,
fortifies the Opinion that prevailed at laft ; for it fhews
what was the Senfe of the Supreme Court of judica-
ture, after the Inconveniences of fuch Bonds had been
fully weighed and experienced.

Wherefore fince Engagements of this Kind are like
to occaiion Corruption and Extortion in Offices, by
having the Profits of Places feparated from the Places
themfelves, let the Bond be delivered up, and a per-
petual Injun£lion awarded thereon ; and though this
be a new Cafe, let the Defendant pay Cofts.

an Interefl: exifting before. Thus at Common Law, no Acceptance of
a Collateral Recompence could bar a Wife of her Dower. But the
Statute of ly H. 8. made a Jointure to be a Bar, which at that Time
extended only to a Jointure made by Aft executed in the Hufband's
Life-time. Afterwards the 32 o^ H. 8. enabling a Man to devife his
Lands, it was held, that if a Man were to devife Lands to his Wife in
Satisfaftion of her Dower, and fhe fhould accept them, this would be a
Bar within 27 //. 8, 4 Co. 4. a. b. becaufe it is within the fame Equity
and Reafon, and the Diverfity is in the Manner only, not in the
Thing. So Exchequer Bills, though created and made valuable by a
Statute fubfequent to that of 12 Car. 2. cap.^o. for erefting the Poft-
Office, yet are portable within the Intent of the faid Aft of 12 Car.
2. and, on a Letter in which fuch Bills were inclofed, being loft out of
the Office, the Poft-Mafters were held chargeable. From the Lord
Ch. Juft. Holt's Argument in the Cafe of Lane verfus Cotton and Frank-
land, in the Reporter's Manufcript. See alfo Salk. 1 7. And it is ob-
fervable, that though the three other Judges of B. R. differing in Opi-
nion with the Chief Juftice, Judgment was given in that Cafe for the
Defendants, yet on a Writ of Error being brought in the Exchequer
Chamber, the Defendants are faid to have made Satisfadlion to the
Plaintiff, which put an End to all further Proceedings.

Sir

De Term, S. Michaelis, 173^;'. 399

Sir William Humphreys verfus his Son^^^^ no.
Orlando Humphreys, i^dchan-

■* -^ «//«r Talbot.

TV/f R' Humphreys had brought a Bill agalnfl: his Father^, brings a
^-^^ Sir William Humphreys, to recover divers Sums ^'^^ ^gainft
of Money from the Father, and inter af a Bond of ver divers
20,000/. entered into in 1704, for the Payment of ^^"""^ °" ^"

niiri Account,

1 0,000 /. and Intereit at the End of the Year. and aifo

10,000/. on
a ftale Bond of above 20 Years ftanding. The Defendant demurs as to what related to the
Bond, for that the Plaintiff might fue at Law. The Demurrer being allowed, the Obligee
in the Bond fues the Bond at Law and gets a Verdi£l:, after which the Defendant brings his
Bill to be relieved againft the Bond, as having been fatisfied ; the Court ordered an Injunc-
tion, for that there was Reafon to grant Relief in Equity, though the Defendant had de-
murred to the Bill brought on the Bond.

The Defendant dertiurred as to that Part of the Bill
that prayed Relief on the Bond, or to recover the
Money due thereon ; for that the Plaintiff had a Re-
n>edy for the fame at Law ; the Bond appearing to be
in his Cuftody, and taken in his own Name. This De-
murrer was argued and allowed. Afterwards the Son,
Mr. Humphreys, brought an A61:ion at Law on this Bond,
and on Solvit ad diem pleaded, obtained a Verdift, (^7:^.)
that the Money fecured by the Bond was not paid.

Upon this Sir William brought his Bill, fetting forth,
that this Bond for 10,000/. was entered into without
any ConfiJeration, and intended only to be in Force
until lome Settlement Ihould be made on Mr. Hum*
phreys by his Father, who upon his Son's Marriage in
1707, had given him io,oco/. and covenanted to
give him 10,000/. more; and that a Purchafe in
Ejfex of 1 000 /. per Ann. had been fettled on the Son
in PofTeflion ; alfo that the Bond was afterwards thrown
afide amongi't ufelefs and neglefled Papers as a Thing of
no Value, and had been fatisfied by Stocks of the
4 Father

396 De Term, S. Michae/iSy I75'>.

Father that had been transferred to the Son, or to his
Order, fpecifying the Particulars.

Mr. Humphreys, to fuch Part of the Bill as prayed
Relief againft the Bond, pleaded the Verdi6l: and the
former Demurrer put in by Sir William, and allowed.
And it was argued, that this was properly triable at
Law ; and after that the Court, and even Sir William,
had declared themfelves of that Opinion : And the De-
fendant having accordingly been at Law and recovered
there, the Father, Sir William, muft not now be admitted
to fay it is proper in Equity, and not at Law ; for that
would be going backward and forward, and dealing ill
with the Court ; and was (as Mr. Strange obferved) a
Departure, which is no more to be endured in Equity,
than it is at Law.

After a Plea Upon a Motion for an Injunflion to ftay Proceed-
can 'be 'n"^ ^ngs ou tlic Bond, the Court faid, that after a Plea
Motion for put Jq there can be no Motion for an Injun6T:ion.
tionjTiii'^the But at the Inftance of the Plaintiff, it was ordered
Plea is ar- t [jgf. j-j^e Plea fliould come on the next Day to be ar-
gued among the Exceptions, with Leave, that if tha
Plea fliould be over-ruled, then the Plaintiff Sir Wil-
liam Humphreys might move at the fame Time for an
Injun6i:ion.

Accordingly the Plea coming on to be argued, after
hearing Counfel, the Lord Chancellor declared, that
this Bond being a ftale one, of about thirty Years
ftanding, and the Money due thereon not having been
demanded for very many Years, and the Suit on the
Bond on the Son's Part being improper in Equity, Sir
William Humphreys might reafonably expe£l: prima facie
to have met with Succefs at Law, it being a Rule, that
after twenty Years and no Intereft paid during that
Time, a Bond Ihall be prefumed to be fatisfied, unlefs
I fomething

gued.

De Term. S, Michaclis, 17 59. 397

fomething appears [Dj to anfwer that Length of
Time ; fb that the Plaintiff Sir William Humphreys had
Reafon to infill by way of Demurrer, that this was
proper at Law; where if it had gone for him, it had cut
every Thing fhort, and made an End of the Demand ;
but though this Matter be now found againft the Obli-
gor, it is neverthelefs hard to fay, that he Ihall be
barred of any Equity he may have againft the Bond.
As fuppote the fame were really intended only to fe-
cure a Proviiion for the Son, until a Settlement fliould
be made, which Settlement has accordingly been made :
Or fuppofe the Bond has in Fa£l been fatisfied by a
Transfer of the Father's Stocks, or any other way,
furely there can be no Doubt, but that the Obligor,
under thefe Gircumflances, ought to be relieved, con-
fecjuently it is no Bar to fay to the Father, " You al-
" leged this Bond was properly triable at Law, which
" has been fo done, and therefore you can have no
" Relief in Equity." Now if this be fo, then the
Anfwer which Jhould fupport the Plea being general,
and not anfwering the particular Charges in the Bill,
the Plea will be infufficient, and mull be over-ruled ;
and the Plaintiff having by the Order, Liberty to apply
for the Injunftion, it is a Motion of Courfe, and mull
be granted. But this Controverfy being between an
aged Father and an only Son, was, the Court faid, fit
to be agreed ; and thereupon it was recommended to
Mr. Attorney General on the one Side, and 'Mr. Verney
on the other, to endeavour to compromife the Dif-
ference, and end the Matter amicably.

[D] The Producing a Receipt for Interefl: within twenty Years, in-
dorfed on a Bond by the Obhgee, (though the Time when Ibch Receipt
was written and figncd did not appear otherwife than by the Indorfement
itfelf) has been held fufficient to take off the Prefumption of Payment.
See the Cafe of The Lord Barringtoti verfus Scarle, in Parliament, Feb,
1730, upon a Writ of Error from the Exchequer Chamber.

Vol. IIL 5 I Robinfon

»ettr

398 De Term. S, Michaelis, I73<J.

Cafe in; Rob'tufon &f af vcrfus Tonge, Dunn

Lord Chan- CT Ul .

«//«r Talbot.

^^^ Ufon the Majiers fpecial Report.

A Bill was brought by the Creditors of Tonge^ a-
"^^ gainft the Defendant Dunttj who was his Admini-
ftrator, and againft others, for the Recovery of Debts
due to the Plaintiffs on Bond from the Inteftate. And
on hearing the Gaufe, the Court made the ufual De-
cree for the Defendant to account, and the Mafter to
be at Liberty to ftate any Thing fpecially.

The Mafler ftated, that Tonge the Inteftate died in-
debted by fome Judgments that were recovered againft
him in his Life-time ; and his Death happening in the
Vacation, feveral of his Creditors, who had Warrants
of Attorney for Judgments, entered their Judgments
which related to the firft Day of the preceding Term,
and confequently, to the Inteftate's Life-time ; though
in Faft fuch Judgments were not figned till after the
Inteftate's Death ; and likewife, that the Inteftate died
indebted to feveral by Bond ; and that the Defendant
Dunn having been bound as Surety only for the Inteftate
in fome Bonds and Judgments, took out Adminiftra-
tion to him, being advifed, that he might thereby pay
off thofe Debts for which he himfelf was bound, as
Surety for the Inteftate : That Dunn the Adminiftrator
paid off two Judgments entered in the Inteftate's Life-
time, amounting to 300 /. and paid off fome Judg-
ments entered in the Vacation following after the In-
teftate's Death, but which by Relation {ut fupra) had
a Retrofpe£l: to the firft Day of the Term which was in
the Inteftate's Life-time, though not aftually figned till
after his Death ; and that the faid Adminiftrator paid
2 fome

V M - i .

De Term. S. Michaelis, 17 ^'J. 1^^

fome Debts by Bond, and difburfed and advanced fo
much Money, as to have overpaid lOo/. beyond what
he had received ', and that there were no more Perfo-
nal Affets left, nor any Real Affets, but an Advowfon
in Fee, which had defcended to the Heir, and which
on an Appeal to the Houfe of Lords, had been ad-
judged to be AlTets to pay Debts, where the Heir was
bound, and which Advowfon had been lince by Order
of the Court iold, and the Money paid into the Bank,

On this Cafe thus ftated the Lord Chancellor gave
his Opinion :

yirfl:^ That as to the Judgments recovered againft
the Inteftate, and entered in his Life-time, they muft
be undoubtedly preferred. Alfo,

Secondly, That with Regard to the Judgments oh where by
Warrants of Attorney entered after the Inteftate's Fr^aui, "t''is
Death, as thefe related to the firll Day of the Term, <"^''J^. that
when the Inteftate was alive, the fame were good Judg-ftaii not bind
ments from that Time ; for the Statute of Frauds, ^^^^''^g"^
which ena£ls, that no Judgment fhall bind Land, but signing, this
from the Signing, concerns only Purchafers, and not [^' p^'^^jj^^'^
Creditors [E] ; ^o that as to Creditors this remains as fes, and
it was at Common Law. But^ between"* "^

Thirdly, Creditors, a
Judgment
entered in the Vacation relates to the firft Day of the preceding Term.

[E] The late Earl of fVinchelfea died feifed of fome Lands in Fee,
and confiderably indebted by Judgment and fimple Contrafb, and after
the Dearh of the faid Earl, and before the EiToin Day of the next fol-
lowing Term, many of the Judgment Creditors delivered Fieri Facial's
to the Sheriff, and took the Goods and Furniture in Execution ; where-
upon the fimple Contrail Creditors petitioned, (for it did not come be-
fore the Court ;pon a Bill) that the JiKigment Creditors might be paid
out of the Land J or at leaft, that as to lo much as the Judgment Cre-
ditors had, by taking ic from the Perfonal Eftate, exhaufled the fam'e;
they (the fimple Contract Creditors) might ftand in their Place, and be
paid out of the Land.

Sed

400 De Term. S. Michaelis, 1735'.

Tfmdly, The Qiieftion was, what Remedy the Ad-
mlniftrator fhoiild have, with Refpecl to the Money
which he had paid out of his Pocket beyond the Per-
fonal AlTets? And here it was reprefented to be very
hard, if he fhould lofe any Part of that ; for which
Reafon it was faid, that as to the Judgments, and more
efpecially thofe that had been obtained in the Inteftate's
Life-time, and which the Adminiftrator had paid, he
ought to ftand in their Place ; and as thefe Judgment
Creditors might have come on the Real Affets for
their whole Debts, fo fhould the Adminiftrator that
paid them.

^.owesMo- Lord Chancellor: As to the Judgments which the
^2uiT^' Adminiftrator has paid, both thofe which were entered
me.us znd in the Teftator's Life-time, and alfo thofe entered in
Snteftatl ^^^^ Vacation after his Death, fo far he has duly ad-
HisAdmini-niiniftred : But when he went further, and paid Bonds
the jud^T beyond the Affets, he muft ftand in the Place of thofe
ments and Bouds, and there being no Perfonal Affets, muft be

fome of the • '^ i • i i i r» i

Bonds, and contcut to come lU pro rata only with the other Bond
pays more Creditors, for a Satisfa6lion out of the Money arifmg
fonai Eftate by Sale of the Advowfon, which is Real Affets.

comes to ;

what the Adminiftrator paid on the Judgments muft be allowed him, but as to what he paid

on the Bonds, he muft come in pro rata witli the other Bond Creditors out of the Real Afiets.

Sed per Cur' : This Rule of Equity is very jufl-, but not applicable to
the prefent Cafe : Here, the Judgment Creditors having lodged their
Writs of Execution with the Sheriff in the fame Vacation that the Party
died, it relates to the 'Tejfe of the Writ, as to all but Purchafers ; anil
confequently by Relation, the Perfonal Eftate of which the fimple Con-
tract Creditors would avail themfelves, as being in the PoffefTion of the
Earl at his Death, was not fo, being evicted from him in his Life-time
by the Execution -, and therefore the fimple Contradl Creditors fecm to
be without Remedy, as to fuch of the Affets as have been feifed by
thefe Executions. Finch verfus the Earl of JVinchelfeay Hill. Vac. 1719.
by the Lord Parker. Sed qiure.

z But

De Term. S. Michaelis, 1 73s'. 4^^^

But then it was objefted by the Solicitor General^
that the Advowfon was not liable to the Demands on
the Inteftate's Eftate ; for that at Common Law no
Real Eftate could be extended, and that an Advowfon
is not extendible on an Elegit ; that the Statute (e)
only made Medietatem Terr<e liable to an Extent ; alfo
that Nothing can be extended on an Elegit, but what
the Jury may put an Eftimate on the (/) yearly Value
thereof; now no yearly Value can be put upon an
Advowfon, much lefs upon the Moiety of an Advov/-
fon ; and if the Cafe in i Infi. 374. h. be Law, that
an Advowfon in Fee is AlTets, yet it may not be ex*
tendible on an Elegit.

Lord Chancellor: It feems hard, to maintain that An Advow^-
Things incorporeal, or lying in Grant, are not extend- i°g to?" '
ible on an Eleeit. However, the Queftion here is, not ^i'j '^ Real

^^ • Afiets and

whether an Advowfon be extendible, but whether it (as it ieems)
be Aflets, which has already received a Determination ext^'d^We in
in the Houfe of Lords ; and indeed as it may be fold,
and comes to the Heir by Defcent, it is reafonable it
fliould be Affets.

Memorandum ; In this Cafe it was infifted, that the
Adminiftrator could not pay a Bond Debt after a Bill
in Equity brought againft him by another Bond Cre-
ditor, and Notice, the faid Bill being in Nature of an
A£lion at Law ; in which Cafe fuch Adminiftrator
would not be permitted to pay a Bond Creditor with*
out having given him Judgment ; which the Court
feemed without Difficulty to allow. [Fj

(e) Weft. 2. cap. 18. (/) 3 Cro, 359. by Jndcrfon C.J.

[F] Neverthelefs this Point does not appear to have been fully fettled
till lately. In the Cafe of Darjion verfus Tbe Earl of Orford, Hill. 1701.
where Jl. and B. were both Creditors by Specialty of '/. S. who died,
and left an Executor, againft whom ^. brought a Bill in Equity for a

Vol. III. 5 K Difcovery

401 De Term. S. Michaelis, 17 3 S*-

Cafe 112. Clwderin^ verfus We [I ley ^ al\

5/>Jofeph ^ J ^

Jekyll, Ma-

•r'oIiV''' npHE Plaintiff, feifed in Fee of a Coal Mine, made
Leafe of a -*- ^ Lcafc thcrcof for twenty-one Years (relerving
Coal Mine 3 Rent) to A. who declared a Truft of this Leafe, {vi^i.)
ingaRent; that he was a Trurtee, as to the Coal Mine, for five
A the Lef- federal Perfons, to each of them one Fifth.

fee, declares

himfelt a Truftee f6'i- five Perfons, to each a Fifth; the five Partners enter upon, work, and
take the Profits of the Mine, which afterwards becomes unprofitable, and the Ledee infol-
vent j the Cejluy que Trujls not liable, but for the Time during which they took the Profits.

Difcovery of AfletS, add to be paid his Debt, and pending fuch Suit,
the Executor voluntarily, and without Suit, paid 5.'s Debt : Upon an
Account decreed on A.'% Bill againft the Executor, the latter craved an
Allowance of this Payment, and it was decreed by the Lord Keeper
Wright^ that the Executor fhould not have an Allowance thereof ; lee-
ing, that before Payment made, a Bill in Equity was brought by A.
of which the Executor had Notice ; and a Bill in Equity is equivalent
to an Adion at Law, pending which Aftion an Executor cannot make
a voluntary Payment, of any Debt. From this Decree an Appeal was
afterwards brought in the Houfe of Lords, where the Decree was re-
verfed -, and the Reafon on which the Lords principally grounded their
Decree of Reverfal was, for that as the Debts were of equal Degree,
and fince a Decree of the Court of Chancery cannot be pleaded at Law
to an Adlion brought againft an Executor upon another Debt of equal
Nature ; therefore fuch Executor might juftify the Payment of another
Debt of equal Nature, even pending a Bill in Equity. From a Note
communicated to the Reporter by Mr. Bodd, (afterwards Lord Chief
Baron of the Exchequer^ who was of Counfel on the Appeal. It is
however now become the eftabliflied Doftrine, that a Decree of the
Court of Chancery is equal to a Judgment in a Court of Law: And
where an Executrix of A. who was greatly indebted to divers Perfons in
Debts of different Natures, being fued in Chancery by fome of them,
appeared and anfwered immediately, admitting their Demands, (fome of
the Plaintiffs being her own Daughters) and other of the Creditors fued
the Executrix at Law, where the Decree not being pleadable, they ob-
tained Judgments •, yet the Decree of the Court of Chancery, being for
a juft Debt, and having a real Priority in Point of Time, not by Fic-
tion and Relation to the firft Day of Term, was preferred in the Order
of Payment to the Judgments, and the Executrix protedted and indem-
nified in Paying a due Obedience to fuch Decree, and all Proceedings
againft her at Law ftayed by Injundtion. Morrice verfus The Bank of
England. Decreed firft at the Rolls by Sir Jofepb Jekyll in Aug. i-]25*
which was affirmed by the Lord Talbot in Nov. 17^6, and his Lordfliip's
Decree affirmed in Parliament in Alaj, 1737.

4 The

De Term, S. Michaelis, 1739. 403

The five Partners entered upon, worked the
Mine, and took the Benefit of it ; but fome Time
after, the LefFee becoming infolvent, and the Mine
unprofitable, it was flung up and abandoned by the
feveral Partners : Upon which the LeflxDr brought his
Bill againft the LelTee and the feveral Partners in or-
der to compel them to pay the Rent in Arrear, and
alfo the accruing Rent ; iniifting, that though the Leafe
was made to a Truftee, yet it being declared by him
to be in Trull for thefe feveral Perfons, as Tenants in
Common, it was the fame Thing as if it had been
made to them originally, or as if the Leifee had af-
figned it to them ; in either of which Cafes the Cefl;uy
que Trufis would have been liable for the Rent, and to
the Covenants in the Leafe, until fuch Time as they
fliQuld have afligned it over. Befides, as thefe Ceftuy
que Trufis, while it continued a beneficial Leafe, were
to have the Profits, fo on the other Hand it was rea-
fonable they fhould abide by the Lofs of it. ^i femif
Commodum, /entire debet i5f Onus.

But by the Mafier of the Rolls: The Aflion at Law
lies againft the LelTee only, by the Landlord, who giving
Credit intirely to Inch LelTee, is debarred of his Re-
medy againft any other. And there feems to be ftill
lefs Realon to charge the Cefluy que Trufis for the future
accruing Rents, fince, as theie are no otherwife chargeable
than as Aftignees, they are at Liberty, by Aifigning over
their Leafe, to get rid of it, and thereby to determine
that Privity of Eftate, in Refpe£l: of which only it can
be pretended that they are liable. Wherefore, feeing in the
principal Cafe the LeiTor has no Remedy at Law againft
any but his LelTee, upon the Credit of whom, and of
whofe Covenants, he has let the Mine; and fince he
has made Choice of him as the Perfon liable for his
Rent, I think, as againft the Cefiuy que Trufis^ the Bill

ought

404 De Term. S. Michaelis, 1735'-

ought to be difmllTec!. Sed [G] qu^cr ', for it feems,
that whilft the Cefluy que Trufls received the Profits,
they ftiould be liable to the Rent, though not after-
wards.

[G] In the trinity Term following this Caufe came by Appeal before
the Lord "Talbot, who decreed one Reed, the LefTee (who made Default)
to pay to the Plaintiff the Contribution Monies he had received from
each of the Cejluy que Tru/is, towards Working and Carrying on the Coal
Mine ; and if that fhould prove not fufficient, the Cejfuy que Trujis that
were living, and the Reprefentatives of fuch as were dead, and who
were all before the Court, to contribute each one Fifth towards Satisfying
the Plaintiff the Arrears of Rent that had incurred during the Time
they had concerned themfelves in taking the Profits. The Plaintiff to
have back the lo/. Depofit.

D E

>• -m

409

D E

Term, S. Hilkrii,

1735-

£x Parte Ro'wlandfon, cafe ng.

Lord Chan-
cel/orTalbot,

H E Cafe was, John Crosfield and James Birket if ^. and B.
were Partners in Trade, and bound jointly and agjji^it-
feverally in their joint and feveral Bond to the Peti- ly and feve-
tioner RowUndJon. 27th of 06t. 1734, a joint Com- "j'j;,J° ^1;^
iniflion was awarded againft Crosfield and Birket, who to fue them
were found Bankrupts, and their Eftate and EfFe£ls {l^j^aiiy ""^ijuj
made over to Aflignees, in Truft for their Creditors. 'f he fues
Afterwards a feparate Commiffion was fued out againft he^cTnnotfue
each of the Partners, and each upon this Commiffion ^^f,"" ^f''^

, ^ _ ' * rally> for the

was alio round a Bankrupt. Pendency of

the one Suit
may be pleaded in Abatement of the other : By the fame Reafon, if A. and B. Joint-traders,
become Banicrupt, and there are joint and feparate Commiflions taken out againft them, and
j1. and B. before the Bankruptcy, become jointly and feverally bound to 'J. S. J. S. may
diufe under which Commiffion he will come, but fliall not come under both.

The Petitioner proved his Debt under all three
Commiffions, and received a Dividend under the joint

Commiffion of Shillings in the Pound ; and

iiaving alfo applied to the Commiffioners under each of

Vol. III. 5 L the

40(J De Term. S, Hil/arii, 173^'-

the feparate Commiffions, to be let into his Dividend
under fuch feparate Commiflion, and being by them
refufed, in Regard of his having received the fame
under the joint Commiflioni, he now appHed to the
Lord Chancellor to be admitted to receive his Divi-
dend under the feparate, as well as under the joint
Commillions.

The Lord Chancellor at firft inclined to think, that
the Petitioner being a joint and a feparate Creditor,
ought to be at Liberty to come in under each of the
Commiffions, provided he received but a lingle Satif-
faftion ; but the next Day his Lordihip held, that as
at Law [a], when A. and B. are bound jointly and
feverally to J. S. if J. S. fues A. and B. feverally, he
cannot fue them jointly; and on the contrary, if he fues
them jointly, he cannot fue them feverally, but the one
Action may be pleaded in Abatement of the other : So,
by the fame Reafon, the Petitioner in the prefent Cafe
ought to be put to his Ele£lion, under which of the
two Commiffions he would come ; and that he fhould
not be permitted to come under both; for then he
would have received more than his Share; but his
Lordihip faid he would hear Counfel, if they had any
Thing to obje£l againft this Order.

Whereupon it was now offered, that it was true, if

at Law two Men are bound jointly and feverally in a

Bond to J. S. the Obligee may either fue the Bond

jointly againft both, or feverally againft each, at his

Election ; but on his fuing them jointly and feverally

at the fame Time, the Pendency of one Suit may be

pleaded in Abatement to the other ; but the Reafon

of this is, for that if the Obligee fues the Obligors

jointly,
I

[A] If three are bound jointly and feverally, the Obligee cannot fue
two of them jointly, for this is fuing them neither jointly nor feverally.
Roll. Abr. 148.

De Term. S, Hillarii, 1 7 39*. 407

jointly, and recovers Judgment, the Plaintiff in fuch
Cafe is at Liberty to take as well the joint, as the
feparate Effects of each of the Obligors in Execution.
Now-, in fuch Cafe, he can have no more than all the
Effects of each, confequently during fuch joint Suit it
would be fruitlefs, and indeed vexatious, to bring a
feparate Action againft each of the Obligors ; but that
Nothing could be inferred from hence againft a juft
Creditor's taking under each of thefe Commiflions, the
Utmoft Advantage allowed him by Law; and that the
Bankruptcy of the Debtor ought not to hinder him
of fuch Advantage, fo as he did not receiv^e a double
Satisfa£lion.

For which Purpofe a Cafe was cited, as determined
by the Lord King^ Sept. 6, 1732. where a joint Com-
miilion iffued verfus Stainer, Jones and Prefiland, who
were Partners and Joint-traders ; and one Rice Vaughan
proved a Debt of 3251/. under the Commiffion, and
received a Dividend of 4 s, in the Pound.

Afterwards Rice Faughan, having likewife a feparate
Bond from Stainer for the fame Debt, fued out a fepa-
rate Commiffion for it againft Stainer, and petitioned,
that the Commiffioners and Aflignees under the joint
Commiflion might deliver up the feparate Effects of
Stainer, in order that the Petitioner might receive a
further Satisfaflion towards his Debt out of Stainer s
feparate Eftate. On the other Hand the joint Credi-
tors petitioned, that the feparate CommilTion might be
fuperfeded ; forafmuch as Rice Vaughan, on whofe Peti-
tion the feparate Commiffion had iffued, had been al-
lowed for the fame Debt under the joint Commiffion,
(t;/;^.) 4 s. in the Pound. But it was ordered, that the
Affignees under the joint Commiirion ftiould deliver up
the feparate Effects of Stainer, to the End they might
be applied to pay the feparate Bond.

And

4o8 De Term. S. Hill ar it, 173^.

And it was infifted, that this was a Cafe in Point;
for here Rice Vaughan was a joint Creditor of all the
Partners, and alfo a feparate Creditor of one, and had
proved his Debt, and taken his Dividend under the
joint Commiflion ; notwithftanding which he was al-
lowed Relief as a feparate Creditor for the fame Debt.

If two Joint- BLit the Lord Chancellor obferved this Difference
aPartnerftiip between the Cafes : In that which had been cited, there
Debt, and ^^.^g ^ fingle Bond given as a collateral Security for the

one of the 00 J

Partners fame Debt, by one of the Partners only ; but in the

llTcoifai"'^ P""^^P^^ Cafe, the Bond upon which the Petitioner
rai Security would fcek Relief under the feparate Commiflion, was
S'thiToebt "ot only for the fame Debt, but given by both the Par-
herethe joint fies J and the Plea in Abatement would have been pro-
rued forYy per, had the Bond been fued at the fame Time both as
the Partner- g joint and feveral Bond, which cannot be, where there
tor%omay IS ouly a feparate Bond. Then taking this to be the Rule
likewife fue ^j. L^w, that 3 ioiut and feveral Bond cannot be fued

the Bond gi- i i ' • i i • • i j r ii

ven by one at one and the lame Time both jomtly and ieverally,
dL'.'''^"' but that the Obligee muft make his Eledion; fo ic
ought to be (he faid) in the principal Cafe. And this
would beft anfwer the general End of the Statutes con-
cerning Bankrupts, which provide, that all Debts {hall
be paid equally, as in Confcience they are all equal;
that it is upon this Foundation, that Debts of a Part-
nerftiip have been ordered to be firft paid out of the
Partnerlhip Effefts {a\ and that afterwards the joint
Creditors, when the feparate Creditors are fatisfied,
may come in upon the feparate Effects, but not before ;
and fo vice verfa the feparate Creditors are to come firft
on the feparate Effe£ls of the Partners, and if thefe not
fufficient, then on the joint Effefls of the Partners, af-
ter the Partnerihip Creditors are paid.

(a) Vide ant* 23, Horfy\ Cafe.

z And

De Term. S. Hi liar it y 1739. 409

And therefore, that there might be an Equality
in the principal Cafe, his Lordfhip ordered, that the
Petitioner fhould make his Eleilion, whether he would
come in for a Satlsfaftion out of the Partnerftiip, or
the feparace Effefls, but not out of both at the fame
Time ; however, his having received his Dividend out
of the joint EfFe6ls, on the joint Commillion, whilft
this Matter was in Sufpenfe, was not to bind him ;
and provided he brought that back again, he might
come in for a Satisfaflion out of the feparate Ef-
fects ; and he to have a Month's Time to make his
Ele6lion,

Heard bf Ux verfus Stamford. ^'^' "4-

Lord Chan-
celltrTaXhoU

A Feme Sole was indebted to her Sifter in 50/. by a Woman
Note ; (he married, and brought a Perfonal Eftate 'soil, mar-'"
to the Value of 700 /. to her Hufband, with whom '^'^> ^nd
file lived about a Year and a Qiiarter, and then died ; tion'to her '
the Creditor by Note never recovered Judgment againft hufband,

J o o 3nQ dies *

the Hulband and Wife, and the Debt remained unpaid. Equity will
The Hufband, on the Wife's Death, adminiftred to the T !^.^'p ^^^^

•r -n -1 1 • n ^ Creditor a-

Wife. The Silter married, and with her Hufband brought gainft the

a Bill againft the Defendant, and finding that the Cbofes Z vie 01
en Adion, of which the Wife died pofTelTed, were not what he re-
fufficient to pay the 50/. Debt, which the Wife owed thi^Wife!
diim Sola ; it was prayed, that the Defendant the Huf-
band, for fo much as he had received out of the
clear Perfonal Eftate of the Wife upon his Marriage,
fiiould be made liable to anfwer the Plaintiff's De-
mand.

And it was infifted to be but common Reafon and

Juftlce, that as' the Wife was the Owner of a vlfible

Vol. III. 5 M Effate,

41 o De Term. S. Hillarii, 17 3S'-

Eftate, upon the Credit of which the PlaintiflF might
have intrufted her ; fo he that had fuch Eftate fhould
pay the Debt, which he might well afford to do; that
it would be a Cafe full of Hardihip, if a Feme Sole,
who in ready Money, Goods, Jewels, Terms for Years,
^c. might be worth 10,000/. and might owe 1000/.
if fuch Woman fhould afterwards marry, and die, that
on her Death her Hufband fhould go away with the
1 0,000 /. and not be obliged to pay one Farthing of
his Wife's Debt ; this would prove of the moft perni-
cious Confequence to the Creditors ; whereas, on the
other Hand, the Hufband could have no Reafon to
complain of being liable to anfwer their Demands, as
far as he had received a Fortune with his Wife ; that
the Author of a Book, intitled The Office of Executors,
(a Book well efteemed) Chap. 17. touching a Feme
Covert's being Executrix, takes Notice of this Cafe as
a very hard one, and indeed recommends it as proper
for the Conlideration of a Court of Equity ; that ac-
cordingly the Court has granted Relief under fuch
Circumifances, as appears from the Chancery Reports,
295, Freeman verfus Goodham^ where a Feme dum Sola
bought Goods, but did not pay for them, and after-
wards married, and died, having brought a good Por-
tion, which came to the Hands of her Hufband, who,
on the Creditor's Filing a Bill againft him, to be paid
for the Goods, demurred. The Lord Chancellor ISlot'
tingham over-ruled the Demurrer, faying with fome
Earneftnefs, that he would alter the Law in that Point.
So in the Cafe of Powell verfus Bell, Abridgment of Cafes
in Equity, 16. Precedents in Chancery, 256. it was de-
creed, that the Wife who had contra£led Debts dum
Sola, being dead, the Hufband Ihould account for what
he had received with her, and fhould be fo far liable
to her Debts ; and there Mr. Vernon is faid to have
informed the Court, that he had often known it fo
held. It was moreover infifted, that' one Precedent
I relieving

De Term. S. Hi liar it y 173^. 41 1

relieving a Creditor was more to be regarded than three
to the contrary.

Lord Chancellor : It is extremely clear, that by Law
the Hufband is liable to the Wife's Debts only during
the Coverture, unlefs the Creditor recovers Judgment
againft him in the Wife's Life-time ; and I do not fee
how any Thing lefs than an Adl of Parliament can
alter the Law. The Wife's Chofes en AStion are Affets,
and will be liable, but thefe, it feems, are not fuffi-
cient in the principal Cafe to anfwer the Demand. In
the Cafe of Freeman verfus Goodham there was fome
Reafon for the Court to be provoked, when the Goods
themfelves continued, after the Death of the Wife, in
the Hands of the Hufband, who notwithftanding refufed
to pay for them. It is true, it appears the then Lord
Chancellor over-ruled the Demurrer ; but what was
done afterwards, what Decree his Lordfhip made,
whether the Caufe was ever heard, or whether the
Bill was not difmifTed, does [B] not appear. Neither
in the Cafe of ?owell verfus Belly is any Notice taken

what

[B] Upon fearching the Reglfter's Book it appears, that in the Cafe
of Freeman verfus Goodlmd t? e cont' (not Goodham) the Defendant had
married the Teftator's Widow, who had bought Goods of the Teftator's
Executors •, that after the Widow's Death, the Executors bringing
their Bill {inter al') to be fatisfied for thefe Goods, the Defendant de-
murred, which Demurrer was on the i8th of December 1676 over-ruled
by the Lord Chancellor ; that afterwards on the Hearing of the Caufe
the 2d of December 1678, the Defendant infifted that his Wife had a
Property in thefe Goods at the Marriage, which were Part of her Por-
tion ; but neverthelefs to avoid further Trouble, and in Cafe an Aflign-
ment of fome Leafehold Effates mentioned in the Caufe were made to
him, (though he was not liable by Law fo to do yet) by his Counfel
he offered to pay for the Goods, whereupon the Decretal Order runs
thus : " That the Defendant Goodland do pay to the faid Executors the
" Sum of 350/. reported due to them on Account of the faid Goods,
" accordittg to his Offer aforefaid." So that this being a Decree in
Confequence of the Defendant's Offer, here appears to be no exprefs
Determination in the Point ; however, it is very probable that the
Defendant perceiving which way the Opinion of the Court inclined
on arguing the Demurrer, was induced to make the above mentioned
Oifer.

412. De Term. S. Hi//arii, 1759.

what Eftate the Wife had in her own Right, and what
as Adminiftratrix to her former Hulband.

So on the jf J relieve againft the Hufband becaiife he had fiif-
where aWo- ficient with his Wife wherewith to fatisfy the Demand
man indebt- [^ Qiieftion ; by the fame Reafon, -where a Feme in-
marries and dcbted dum fola afterwards marries, bringing no For-
p nfonTo ^^^^ ^^ ^^^ Hu{band, and Judgment is recovered againit
her Hufband, the Hufband, after which the Wife dies, by the fame
whl'iifjudg- Reafon (I fay) I ought to grant Relief to the Hufband
mem is re- againft fuch Judgment, which yet is not in my Power,
fuch i:)ebt7 confequently there can be no Ground for a Court of
and then the Equity to intcrpofe in the prefent Cafe. If the Law

Wife dies, -'. •' n j i i i • • • u i

Equity will as It now Itands be thought inconvenient, it will be a
not •■eiieve gQQ^ Reafon for the Legiflature to alter it, but till that
gainft the is donc, what is Law at prefent, muft take Place.

aga
Judgment

The next Morning the Cafe of The Earl of Thomond
verfus Earl of Suffolk, {b) was cited to have been ad-
judged by the Lord Macclesfied, wherein this was one
of the very Points in Quertion ; and the Lord Macclef-
fieldj for much the fame Reaions as had been given by
the Lord Talbot, denied to relieve a Creditor of the
Wife dum fola againft the Hufband who furvived, and
on the Marriage had fufficient Perfonal Ei^ate where-
with to anfwer her Debts. Whereupon the Lord
Chancellor took Notice, that although the Matter
now in Qiieftion was inconfiderable in Value, yet the
Cafe itfelf was of great Confequence ; for which Rea-
fon, if the Counfel for the Plaintiff were diffatisfied,
he would, he faid, hear them again to it. But the
above mentioned Cafe of the Earl of Thomond being in-
iifted on as in the very Point, the Counfel acquiefced,
and did not ftir the Matter again, {c)

{b) See Vol. i. 470. where this Cafe is referred to In the Note,
(f) Note ; the fame Point had been determined by the Lord King
in the Cafe of Jordan verfus Foley, Trin. 1 1 Geo. i .

I Smith

De Term. S. Hillarii, 173^. 413

Smith verfus Turner. ^^^^^ "5-

Lord Chan-

ff//w- Talbot.

I 'H I S Caufe was heard, and there appearing to the After the
-*- Court fome Reafon to fufped that the Defen- defendant
dant had a Deed in his Cuftody, it was ordered that amined on "
he fliould be examined on Interrogatories touching the ii^^erroga-

tones 3ncl

Deed. Accordingly he was examined, and denied his Publication
having the Deed, and all the Circumftances relating p^'^"''.^''^

o ' o PlaintifF

thereto. ought not to

have a Com-
miflion to examine Witnefles in order to falfify the Defendant's Examination ; this tending
to multiply Caufes, and make them endlefs.

The Mafter certified notwithftanding, that he
thought it reafonable the Plaintiff who prayed a Gom-
million to examine WitnelTes, in order to fallify the
Defendant's Examination, ftiould have one. And now
on Motion for fuch Commiilion, and after hearing
Counfel on both Sides,

The Lord Chancellor ordered, that the Plaintiff
fliould not have fuch Commiffion ; for at this Rate
three or four Cauies might fpring out of one ; and
though there could be no Mifchief in examining
the Party himfelf, yet the Examining Witneffes after
Publication paffed, efpecially where it may relate to
the Matter in Iffue, is againft the Rule of the Court,
'and may be greatly inconvenient, and make Caufes
endlefs.

Vol. III. 5 N King

414 J^^ Term. S. Hi//arii, I73<

Cafe 1 1 6.

Lord Cban-
(eilerTaibot.

King verfus Withers,

[In Domo Procerum.]

?&n^nd"f HTHE BUI was brought for the Recovery of a Le-
Daughter, -■- gacy of 3 ^oo /. givcii by the Will of Charles
dI^JS '^ Withers^ the Father, to Henrietta Maria his Daughter.
2500/. at The Cafe was ; Charles Withers, the Father, had a Wife
21, o^ Mar- named Dorothy^ and one only Son Charles Withers, and
nage which Qj^g only Daushtei Henrietta Maria, afterwards married

Ihould hrft 1 i<I • -/T t-> r^-

happen; and to the Plamtiti Dr. King.

if his Son

(hould die without Iflue Male of his Body then living, or which afterwards fhould be born,
then his Daughter to have at her Age of 21, or Marriage, which (hould firft happen,
3500/. over and above the faid 2500/. and in Cafe the Contingency of the Son's fo dying
fliall not happen before the Daughter's Age of 21, or Marriage, then (he to receive the faid
additional Sum whenever it fhall happen. After which the Teftator intails his Real Eftate,
fubjedt to the above mentioned Charge, on the Heirs of his Body, Remainder to his Brother
in Fee. The Teftator dies, the Daughter marries, has Iffue, and having attained 21, dies.
Her Hufband adminifters to her ; after which the Teftator's Son dies without Iflue Male ;
the 3500/. fliall not fmk, but on the Perfonsl Eftate proving deficient, ftiall be raifed for
the Benefit of the Daughter's Adminiftrator.

"O"

Charles Withers the Father was feifed of a Real Eftate
of 900 /. per Ann. and poffeired of a great Perfonal
Eftate, and by his Will dated 3 June 1697, ^^^J exe-
cuted, gave to his Daughter Henrietta Maria 2500/.
at her Age of twenty-one, or Marriage, which ftiould
firft happen, declaring his Intention and Meaning to
be, that if his Son Charles Withers Ihould die without
Iffue Male of his Body then living, or which afterwards
Ihould be born, then his faid Daughter Ihould have and
receive at her Age of twenty-one, or Marriage, which
fhould firft happen, 3 500 /. over and above the faid
2500/. After which he intailed his Real Eftate on the
Heirs of his Body, with Remainder to his Brother An-
drew Withers in Fee, and dire£led, that in Cafe the
faid Contingency of his Son's dying without IfTue
4 Male

De Term. S. Hi liar it, 1739. 419

Male fliould not happen before his Daughter's Age
of twenty-one, or Marriage, then (he (hould receive
and be paid the faid 3 500 /. whenever it might after
happen, and made his "Wife Dorothy, his Brother Andrero
Withers, and one John White, Executors, declaring fur-
ther, that his Land before mentioned in his Will Ihould
be liable and chargeable with the Payment of this
3 500 /. whenever it might become due and payable.

In Augupi ^^97i Charles Withers the Teftator died.
Charles Withers the Son intermarried with Frances Wa-
veil, by whom he had IfTue three Daughters, the De-
fendants. The Plaintiff Dr. King married Henrietta
Maria, the only Daughter of the Teftator Withers the
Father, and had Iffue Charles King now living. Hen-
rietta Maria, the Wife of the Plaintiff Dr. King, died,
having attained twenty-one, and the Plaintiff Dr. King
adminiftred to her. Charles Withers the Son died with-
out Iffue Male, leaving his faid three Daughters. Do-
rothy Withers likewife died, and the Perfonal Eftate
being deficient, the Plaintiff Dr. King brought his
Bill to recover this additional Portion of 3500/. and
Intereft.

nth of July 1735, the Lord Chancellor Talbot de-
clared, that the faid 3500/. was and is a fublifting
Charge on the Teftator's Real Eftate, and decreed an
Account of the Perfonal Eftate, and of the Rents and
Profits of the Real Eftate devifed by the Teftator
Charles Withers for the Payment of his Debts and Lega-
cies ; and that this 3 500 /. ftiould carry Intereft from
the Death of Charles Withers the Son, together with
Cofts of Suit.

From this Decree the Defendants appealed to the
Lords, and infifted, Firfl, That the additional Portion
of 3 500 /. was given to the Teftator 's Daughter Hen-
rietta

4i6 De Term. S. Hillarii, I73S'-

rietta Maria upon two Contingencies, rv^. upon Charles
Withers the Son's dying without Iffue Male living at his
Death, and upon her the faid Henrietta Marias at-
taining her Age of twenty-one, and that both thefe
Contingencies ought to have happened in the Life-time
of the faid Henrietta Maria, otherwife the conditional
Legacy could not vefl: in her fo as to be tranfmiilible
to her Adminiftrator as a Charge on the Real Eftate,
and to be raifed thereout in Prejudice to the Appellants,
the Coheirs at Law, but ought to link in the Inheri-
tance, agreeably to thofe {d) many Determinations in
the Courts of Equity, where in the Cafe of Portions
given to younger Children, payable out of Lands at
a future Time, before which Time fuch Children have
happened to die, it has been held, that the Portions
did not veft, nor were raifable for the Benefit of the
Executors or Adminiftrators of fuch Children, but
ought to link for the Benefit of the Heir or Remainder
Man.

Secondly, It was obferved, that this additional Por-
tion of 3 500 /. was not made payable to the Executors
or Adminiftrators of the faid Henrietta Maria, the late
Wife of the Plaintiff Dr. King ; which fliewed, according
to them, that it was the Teftator's Intention, that the
faid Sum iliould not be paid to her Executors or Admi-
niftrators out of his Real Eftate, which he had intailed
on his Family, nor go to a Stranger who had before
received a Portion of 2500/. with the Daughter, and
who had made no additional Settlement on her, in Re-
compence for fuch additional Portion : And though it
might be objefted, that Poftibilities or Contingent In-
terefts go of Courfe to Executors or Adminiftrators,
even though the Legatees die before the happening of
the Contingencies j yet this was faid to hold only
2 where

{d) Sfee the Cafe of Parj^ht verfus Pallet, 2 Vint. 2^6. i Vern.
i04, g2i.

De Term. S. Miliar it, 1739. 417

where the Contingent Intereft arifes out of a Perfonal,
not out of a Real Eftate.

On the other Side It was anfwered, that it appeared
to have been the Intention of the Teftator to make a
Provifion for his only Daughter, not barely by giving
her a Portion of 2500/. to be paid at her Age of
twenty-one, but alfo an additional Legacy of 3 500 /.
payable on a Contingency of his only Son's dying with-
out IlTue Male then living, which had happened.

That the Teftator's Daughter Henrktta Marias cry-
ing in her Brother's Life-time could not be any Ob-
jedion to her having the additional Legacy of 3 5C0 /.
fince it was particularly direfted by the Will, that
though the Contingency fhould not happen before her
attaining the Age of twenty-one, or Marriage, yet
fuch additional Legacy fhould be paid whenever the
Contingency ftiould afterwards happen, without an-
nexing any Reftriftion thereto, or adding the Circum-
ftance of the Daughter's being then alive. And in
another Part of the Will the Teftator expreily declared
his Intention to be, that the Lands and PremiiTes
thereby devifed to his Son Charles, with Remainder in
Fee to his Brother Andrevp, fliould be liable to and
chargeable with the Payment of the faid 3500/. when*
ever it might happen to become due and payable^
which (hews the ftrongeft Intention imaginable in the
Teftator, that the faid 3500 /. fliould be a Charge on
his Real Eftate on the Death of his Son Charles without
IfTue Male, whenever fuch Event might happen, whe*
ther the Teftator's Daughter Henrietta were at that
Time living or not ; that thefe Claufes feemed inferted
on Purpofe and with a particular View to prevent the
Qiieftion that had now been ftarted ; for being taken
together, it was hardly pofTible for the Teftator to have

Vol. Ill, 5 O exprelfed

41 8 De Term, S. Hi liar ii, 17 3S'.

exprefled himfelf in more explicit and decifive Terms ;
that the Cafe of Jack/on verfus Farrant, Precedents in
Chancery 109. and 2 F<?r«. 424. was determined agree-
ably hereto ; laftly, that the principal Cafe differed
intirely from that of Poulet verfus Poulet, \\'here the
Daughter dying about the Age of nine Years, had con-
fequently no Occafion for a Portion j whereas here
the Daughter lived to be married and left a Child,
and this additional Provilion might juilly be prefumed
to have contributed fomewhat to the Advancement of
her in Marriage.

For which Reafons it was prayed that the Decree
might be affirmed, and it was affirmed accordingly
with Cofts 1 6 March, 1735.

D E

419

D E

Term. & Michaelis^

1717.

Dominus Rex verfus Johaini Bigg.

Argummt before all the Judges at Serjeants Inrij

in Fleet-Street.

THIS was a fpeclal Verdi6l found at the Old- One with
Bailey, where the Prifoner, John Bigg, was in- ^''.'"°"
difted for rafing out an Indorfement of 90 /. made on out a Re-
a Bank Bill for 100/. which is made Felony without "'p\''T'°

, _ J on the In-

Clergy, by a late Att of the 8th and 9th of W. 3.fidc of a
Chap. .9. Par. 5S. 8".t„S':'„

Indorfe-
ment ; this held to be Rafing an Indorfement within 8th and 9th of IV. 3. Cap. 19. 5^7. 36.
and to be Felony without Clergy.

The Indl£lment fet forth, that on the 19th Day of
February, 17 14, and long before, one Joflnia Adams
was intruded and employed by the Governor and Com-
pany of the Bank of England, to fign Bank Notes for
the faid Company, for the Payment of Money by them
2 payable :

42.0 De Term. S. Michaells, 17 17.

payable : That afterwards the fame Day and Year, the
faid Joflma Adams being fo intrtifted and impowered by
the faid Company, did make a certain Bank Note
under his own Hand, and figned by himfelf on Behalf
of the Company, dated the 19th of February, 17 14,
by which Note the faid Joflma Adams, on Behalf of the
faid Company of the Bank of England, did promife to
pay to Mr. James White, or Bearer, one Hundred
Pounds on Demand: That afterwards on the 2 2d of
February, 1 7 1 4, on Behalf of fhe faid Company of the
Bank of England, the Sum of Ninety Pounds, Part of
the faid Sum of one Hundred Pounds in the faid Note
mentioned, was paid to the Bearer of the faid Note ;
and that thereupon, on Behalf of the faid Company,
^loddam jcriptum, AngUci an Indorfement on the faid
Note, was duly made and written, fpecifying, that
90 /. was paid the fame 2 2d oi February, 17 14: That
the Prifoner John Bigg, endeavouring to make an unlarp-
ful Gain to himfelf, and to defraud the Company of the
Bank of England of great Sums of Money ; after the
Payment of the faid 90 /. and after the faid Indorfe-
ment made upon the faid Note, (tv^.) on the firft of
March in the lame Year, felonioufly erajit that Indorfe-
ment upon the faid Note, Contra Pacem Domini Regis,
^ contra for mam Statui in hoc cafu nuper edit' ^ provis\

Upon Bigg the Prifoner's pleading Not guilty to
this Indiftment, the Jury found a fpecial Verdi£l, (r/^J

They found, that the faid Joflma Adams on the
faid 1 9th of February, 1 7 1 4, was intruded and im-
ployed by the Governor and Company of the Bank of
England, but not under their Common Seal, to fign for
the Company, Bank Notes for the Payment of Money
payable by the Company : I'hat the faid Jofjua Adams
being fo intrufted and imployed as aforelaid, on the
19th of February, 1714, did make the Note in Wri-
I ting

De Term. S. Michaelis, 17 17. 421

ting mentioned in the Indiilment, figned under the
faid Jojljua Adams % own Hand, on Behalf of the faid
Company ; by which Note the faid Joflma Adams, on
Behalf of the faid Company, promiied to pay to Mr.
James White, or Bearer, on Demand, the Sum of one
hundred Pounds; that on the faid 2 2d Day o{ Febrw
ary, i 7 1 4, on Behalf of the faid Company, the faid
90 /. Parcel of the faid Sum of one hundred Pounds
in the faid Note contained, was paid to the Bearer of
the faid Note ; and that on the faid Payment, on and
acrojs the Writing of the faid Note, the Words and Fi-
giures following, (vi^.) iz February, 17 14, paid ninety
Pounds, were in due Manner, on Behalf of the faid
Company, written with red Ink upon the Face and In"
fide of the faid Note ; that the faid John Bigg, on the
firft of March in the faid Year, after the Payment of
the faid 90 /. and the Infcription thereof on the faid
Note, by a certain Liquor to the Jury unknown put
by the faid John Bigg upon the Words and Figures fo
written upon the faid Note with Red Ink as aforefaid,
the fame Words and Figures totalitir expunxit tf delevit.

Alfo the Jury found, that at the Time of Making
the A61 of Parliament, intitled, An A61: for making
good the Deficiency of feveral Funds therein mention"*-
ed, and for enlarging the Capital Stock of the Bank
of England, and always afterwards, to the 28th of No-
■vember, 16^6, the Way only ufed for Indorfing of
Bank Notes was, by Waiting on the Backfide of the
faid Notes v/ith black Ink ; but that afterwards, upon
the 28 th of November, 1696, and from thenceforth to
this Time, the Way that was only ufed was, to write
all the Payments of any Part of the Money paid on
thefe Notes, upon and acrofs the Writing of the faid
Notes, with red Ink, in Manner and Form as is above
mentioned to be written on the faid Note ; and that
fuch Infcriptions, from the faid 28th of Novem. 16^6,

Vol. III. 5 P hitherto

411 De Term. S. Michae/iSy 17 17.

hitherto have been, and are commonly called Indorfe"
ments ; and if upon this whole Matter the Court Ihall
be of Opinion, that the Prifoner is guilty of the Fe*
lony charged upon him in the Indi£lment, then they
find him Guilty ; if the Court Ihall be of the contrary
Opinion, then Not guilty.

My Lords,
I am of Gounfel with the Prifoner, who, I muft
admit, has been guilty of a very great Mifdemeanour
or Offence ; but the Queftion now before your Lord-
(hips is, whether the Faft, as found by this fpecial
Verdi£l:, be Felony ?

I fhall beg Leave to fpeak to the Cafe upon thefc
feveral Points :

Firfl, Whether this JofJma Adams appears to have
been well empowered, on Behalf of the Company of
the Bank of England, to fign Notes for the Payment
of Money by the Bank ? And I humbly take it, that
on this fpecial Verdift, but more particularly the Ne-
gative Words of it, I mean, as it is found, that there
was no Authority under the Common SeaU it appears Adams
was not well empowered to lign this Note on Behalf
of the Company; and therefore, that in Stri£lnefs it
is not, as to this Purpofe, a Bank Note, and confe-
quently that it is no Felony to rafe it, or to rafe an
Indorfement made upon it.

Secondly, Whether this Receipt of the 90 /. Part of
1 00 /. mentioned in the Note, (the Receipt being writ-
ten on the Inlide and Face of the Note) can be faid to
be an Indorfement within the A6t ? And I humbly hold
it cannot be faid to be an Indorfement, and confe-
quently, that the Prifoner cannot be guilty of rafing
an Indorfement on a Bank Note.

1 Thirdly,

De Term. S, Michaelis, 17 17. 42.3

Thirdly J Whether the Prifoner's Taking out this Re-
ceipt by applying to it a Liquor unknown to the Jury,
can be called a Rafing of this Indorfement? And I mud
beg Leave to hold, that it cannot be called a Raling
of this Indorfement.

Fourthly, Whether the Indi£l:ment be good, it being
for Rafing the Infcription, AngUce, the Indorfement,
on the Bank Bill ? And this I take not to be good.

Fifthly, Whether the Verdifl, as found, be fuflici*
ent, it not being found, that the Prifoner rafed out
this Indorfement for the Sake of Lucre, or with an In*
tent to defraud or cheat the Company of the Bank of Eng*
land ? And I take it that the Verdi£l, as found, is not
fufficient, as to that Matter.

As to the firft Qiieftion, whether Jojhua Adams was
Well empowered by the Bank to fign this Note ? The
Company of the Bank of England are a Corporation
Aggregate, a Body Politick, fubfifting only by Fi£lion
and Suppofition of Law, which is invifible, and can
a£l: or fpeak only by its Common Seal ; fo that the
Common Seal is the Hand and Mouth of fuch a Cor*
poration.

Formerly it was held, that a Corporation Aggregate
could not do any Thing without Deed, 15 H 8. 12.
Afterwards, it is true, for Conveniency's Sake, it was
allowed to aft in ordinary Matters without Deed, as to
retain a Servant, Cook, or Butler, P/ow. 91.^. 2 Saund,
305. or to appoint a Bailiff to take a Diftrefs, 3 Lev*
107. But in Cafe of any Thing of Confequence, or a Corpora-
in the Employing any one to a6l on their Behalf in g^te can do
a Matter which is not an ordinary Service, a Corpo- p°^J"^ °^

quence, or that is not an ordinary Service, without Deed.

ration

42-4 ^^ Term. S, Michaelis, 17 1 7.

ration Aggregate cannot do that without Deed. This
is the very Diftin£lion taken in Home and Ivys Cafe,
reported in i Vent. 47. i Mod. i2. 2 ICeb. 567. where,
in Trefpafs for taking away a Ship and Sails, the De-
fendant juftified under the Canary Patent, whereby the
King granted to the Company the fole Trade to the
Canary Iflands, and further granted, that if any {hould
without their Licence trade thither, their Ship and
Goods fent thither fliould be forfeited to the Com-
pany. Then the Plea fet forth, that the Plaintiff with
his Ship and Sails did fail to the Canary Iflands, and
trade there, without Licence from the Company ;
whereupon the Defendant did feize the Ship and Sails
on Behalf of the Company, as forfeited ; and on De-
murrer to this Plea two Points were held ; jirfl. That
the Letters Patent could not create a Forfeiture, idly.
Cannot That the Company could not without Deed empower

Without ■. ^ "^ r

Deed em- any third Perion to feize Goods for their Ule as for-
Krn'to '''^ feited ; for (fay the Books) the Seizing of Goods for
feize Goods the Ufc of a Corporation is an extraordinary, and not

for theirUfe, c

as forfeited, a common Service.

Now this fhews a Corporation can no more give an
Authority, as to Perfonal Things, without their Com-
mon Seal, than as to any Real Eftate ; and if the Seiz-
ing of Goods for the Ufe of a Corporation, as for-
feited to them, be an extraordinary Service, and fuch
a Power as cannot be given without Deed, though this
be a Power for the Benefit of a Corporation, namely,
to put them in PofTelfion of Goods, which before they
had a Right to, and relating only to Perfonal Goods,
and to no Real Eftate ; if fuch an Authority (I fay)
cannot be given without Deed, a fortiori the Bank
of England's Empowering one to fet their Name to a
Promillory Note cannot be done without Deed ; this
being an extraordinary Truft or Employment, fuch a
one indeed as, if abufed, may, in an Hour's Time,
I endanger

De Term. S. MichaeliSy 1717. 42 s*

endanger the Ruin of the Company that gives this Au-
thority. For if an Agent of the Bank be, under their
Common Seal, empowered to fet their Names to Prc-
mifibry Notes, and fuch Agent ftiould, without any
Confideration or Value received, fign a PromifTory
Note in the Company's Name for five or ten thou-
fand Pounds, I do not fee, but that this would bind,
and at the fame Time go near to ruin the Com-
pany.

Therefore furely this is a Truft not of a light Na-
ture, but of the higheft Concern and Confequence to
the Company ; and if in any Cafe whatever an Au-
thority given by a Corporation ought to be under their
Common Seal, without all Doubt this Authority given
by the Company to lign Promiffory Notes ought to
be fo.

It is plain a Corporation Aggregate cannot without
Deed make or enter into any Contrail ; and by the
like Reafon they cannot without Deed empower an-
other to do that Aft, which they themfelves cannot
do, but under thole Circumftances. A Corporation
Aggregate cannot without Deed bind themfelves to
pay Money; and for the fame Reafon they cannot
without Deed authorife another to charge themfelves
with the Payment of any Money. It is evident a
Corporation cannot without their Common Seal em- Nor to enter
power their Servant or Aeent to enter, on their Be- ?'' ^^T'^'"

J.„ i-'i • ' ''°" broken.

half, for a Condition broken, though in the Caie of an
Ertate of never fo fmall a Value, and though this be
for the Benefit of the Corporation, and cannot pof-
fibly enure to their Prejudice, i RoL Abr. 5 1 4, Damper
verius Symmsj much lefs can a Corporation empower
another without their Common Seal to lign Promiflory
Notes in their Name, whereby to charge themfelves,
it may be, with a Million of Money.

Vol. III. 5 Q_ I (hall

I ntmrn 1ti

416 De Term. S. MichaeliSy 17 17.

Nor even I fliall Only mention one Inftance more of what a
tlJmmcnt^' Corporation cannot do without a Deed, and that is, it
cannot without a Deed make an Attornment to a Grant
of a Reverfion ; as if Lands be granted to a Corpora-
tion Aggregate, whether for Years, or for the Life of
y. S. and the Grantor being feifed in Fee of the Re-
verfion, grants it over to a third Perlon; the Corpo-
ration, who have the particular Eftate, cannot attorn
without Deed ; and in pleading a Title to fuch a
Grant of a Reverfion, the Deed of this Corporation,
purporting fuch Attornment, muft be pleaded with a
Profert hie in Cur. 6 Co. 38. Bellamys Cafe.

Though the Yltxt then is a very ftron? Cafe : An Attornment is

]3.tt€r be u J <j

Thing of but a flight Matter, being no more than a bare Con-
Co'nfe^-^''^ fent to the LelTor's Grant ; it paffes no Intereft from
quence. the Party attorning, but the Grantee is in by the Gran-
tor folely. It is favoured in Law, as tending to the
Perfeftion of a Grant; and therefore cannot be upon
a Condition fubfequent, for in fuch Cafe the Attorn-
ment would be good, and the Condition void and re-
je£led. The Making an Attornment is no more than
what the Tenant is compellable to do, upon a proper
Conveyance ; as that of a Fine, upon a ^uid juris da-
mat brought againft the Tenant. An Attornment has,
in our Days, by the whole Legiilature been thought fo
trivial a Thing, that by a late (a) A61 of Parliament
it is wholly taken away, as an ulelels Incumbrance
upon Conveyancing. And if a Corporation cannot do
fo flight a Thing, as' to make an Attornment without
Deed, much lefs can they without Deed do an A&. of
that Confequence, as to empower another to fet their
Name to PromilTory Notes for the Payment of ever
fo great a Sum of Money.

((2) 4 Sc 5 Anns, cap. 16. fed. g.

z But

De Term. S. Michaelis, 1717. 417

But it will be obje£led ; if the Authorlfing Adams to
fign Notes in the Name, and on the Behalf of the
Bank of England, ought to be under the Common Seal,
then for want thereof, according to this Way of Ar-
guing, all the Notes and Bills given by Adams on the
Behalf of the Bank are void.

Reff : This is no Confequence ; for in an A6lion
brought againfl the Bank upon a Bill or Note figned
by Adams, when it ftiall be proved, that Adams is an
Agent intrufted by the Bank, and has been ufed to
fign Bills and Notes, which from Time to Time have
been duly paid and anfwered by the Bank ; this is
Evidence, and will carry with it the higheft Prefump-
tion, that Adams was lawfully authorifed fo to do, and
confequently authorifed under the Common Seal ; and
at the fame Time it may be impoifible for a third Per-
fon, that fues this Bill or Note, to produce fuch Au-
thority under the Common Seal of the Bank ; and ic
would be unreafonable in the Court to put him upon
it, in Regard the fame does not belong to him ; yet
upon fuch Evidence it lliall be prefumed, that Adams
was well authorifed under the Common Seal to lign
fuch Bills and Notes, and conlequently they will be
good : But in the principal Cafe there is no Room lefc
for fuch Prefumption, it being exprefly found by the
Verdifl, that Adams was not authorifed under the
Common Seal of the Bank to lign fuch Notes. So that
this Obje6lion is of no Force.

But if this Point fhould be againft me, and it Hiould
be thought by your Lordfhips, that the Bank without
their Common Seal could authorife Adams to fign Notes
in their Name, (though it be a Matter of fuch very
great Moment, as, if abufed, may ruin the Company)
But admitting this to be againft me j

The

4i8 De Term. S. Michae/is, 1717.

Whether The fccond Qiieftion is, whether this Receipt for

ReceT^t with 9^ ^' ^'^^1^^611 With icd Ink acrofs and upon the Face
red Ink a- and Infide of this Bank Note' of one hundred Pounds,
uj^n the can be faid to be an Indorfement ; for the Statute of
Face and In-* g (^ ^ jf///, ^. fttakes it Fclony, " either to forge or
Note° ran " Counterfeit a fealed Bank Bill or Bank Note, or to
be called an « ^if-^j. qj- j-gfg gj^ Indorfemeut on any Bank Bill or

mem? *■ Bsnk Note." The prefent Indiftment is on the lat-
ter Branch ; therefore, if the Receipt for 90 /. written
on the Face of this Bank Bill, be not an Indorfement,
then the Offence is not within the A61 of Parliament.

This Receipt written on the Face of the Note is
The Mean- fjot an Indoriemcnt : The Word Indorfement is a legal
Wor°d^/i^ Word, for which there is a proper (at leaft a Law)
dorfement. Latin Word, (r/^-) Indorfamentum, as Murdrum is the
Law L^?/« Word for Murder. The Meaning of the Word
appears from its Derivation from In and Dorfum, and
fignifies what is written on the Back of the Deed or
Inff rumen t. It is taken Notice of in the Terms of
the Law, Coxvelfs Interpreter, and Blunt' s DiSiionary, and
is frequently applied to a Condition of a Bond, in
ancient Times commonly written in Parchment, and
the Condition as commonly written on the Back of the
Bond, and called an Indorfement. And this being the
plain Signification of the Word in the common Uie of
it, manifeffly implied from its Derivation, how then
can it iignify any Thing written on the Face and /«-
Jide, and not on the Backfide of the Note ?

It is true, the Verdi£l finds, that feme Time fince
the Making of this penal Statute, it was ufual for the
Bank to write the Receipt for any Part of the Money
paid upon the Face and acrofs the Note with red Ink ;
and that this Receipt, though written on the Face

and

* Cap. 20. fed:. 36. I

diai>SUi*>AkA>

De Term. S. Michae/iSy 17 17. 419

and Inlide of the Bill, is, fince the A£1, commonly
called an Indorfement.

But furely this cannot be material ; for by the jury's
finding that this Writing the Receipt with red Ink
acrofs and on the Face of the Note is commonly called
an Indorfement, by this (I fay) it is implied, that it is
not always called fo j nay, that fometimes it is called
otherwife. The Word commonly is uncertain : If it has
been three or four Times called fo, it may be faid to
be commonly called fo, and yet it may much oftner
be called otherwife. Befides, as it is a proper, legal
Word, the true and legal Import thereof cannot be
altered, varied, and made to lignify the direft con-
trary ; and all this by fome People's making an impro*
per Ufe of it. This would be to make an Indorfe-
ment, which is always written on the Backfide of a
Note or Writing, to fignify the very Reverfe, (t;/^.)
what is written on the Forefide : It would be to give
fuch a Latitude to the Fancy of People, who may
fometimes mifname any Thing, as to take away all
Manner of Certainty.

But what renders this Objeftion the ftronger, is, for
that the Verdift finds, that at the Time of Making
this A.&. of Parliament, and for fome Time afterwards,
the only Way of writing Receipts on the Bank's Pay-
ing off Part of the Note, was, by writing the Receipt
on the Back of the Note, which at that Time, {fcit)
at the Making of the Aft, was called an Indorfement,
and this was indeed properly and juftly fo called ; and
writing Receipts on the Face or acrofs the Bank Note
was not then pra£lifed ; confequently the Statute, in
making the Rafing an Indorfement Felony, muft
intend fuch an Indorfement, as was ufed at the
Time when the A£l was made, that is, fuch as was

Vol. III. 5; R written

430 De Term. S. Michaelis, 1717.

written on the Back of the Bank Note, and could
never mean a Writing on the Face or acrofs the Note,
which was not then pra£lifed, and could not have been
forefeen, without the Spirit of Prophecy. And if the
Bank have found out a new Way of writing Receipts,
they muft apply for a new A£1 of Parliament that (hall
extend to fuch their new Invention.

Again : This Writing of a Receipt acrofs and upon
the Face of the Bank Note being a new Method, and
not pradifed when the Aft was made, I would put the
Cafe, that the Receipt on the Face of the Bill, which
the Prifoner is indifted for Rafing, had been the firji
Receipt that was ever written in that Manner, would
this have been an Indorfement within the Aft of Par-
liament, and would it have been Felony to have rafed
the Receipt thus written on the Face of the Bill?
Surely nor.

Then I would go further, and alt, if the Prifoner
had rafed the fecond, third or fourth Receipt that had
been written in this Manner, would this have been an
Indorfement within the Aft ? I do not fee how it
could. When then would the Rafing of fuch Receipt
written on the Face of fuch Bank Notes firft begin to
be Felony ? This would be pretty hard to determine.

Further : If this penal Law did not originally and
at the Time of making it comprehend a Receipt
written on the Face of a Bank Bill, under the Word
Indorfement^ (as it is plain it did not) fhall fuch Law
in Procefs of Time grow ftronger and more comprehen-
live than it was at firft ? Shall fuch a Conftruftion be
put upon it as thereby to make that Felony fome
Years after the Enafting of the Law, which, at the
Time when it was enafted, was not fo ? This would
1 indeed

De Term. S. Michaelis, 17 17. 431

ndeed be a ftrange Conftru£lIon, by a liberal Inter*
pretation to enlarge a penal Law, contrary to the
Rule which fays, it JJjall be taken flriSlly, and muft
tend to make conflriMive FelonieSj as odious as conflmc-
five (b) TreafonSt

If it fliould be obje£l:ed, that to rafe a Receipt Writ- fnftances
ten by the Bank on the Face of the Note is equally LawThTve
mifchievous, as the Rafing an Indorfement on the Back "^^ ''^^" e"*
thereof, and therefore equally within the Adi ; this^uitlbie^'^
Argument will not be allowed, with Regard to any 9°"'^'^"'^*
Law that is Penal, much lefs in the Cafe of one that
is Capital, fuch not being to be inlarged by Parity of
Reafon, or extended by any equitable Conftruftion*

The Statute of 25 Hd^. 3. makfes (ot rather declares)
it to be High Treafon to counterfeit the Great Seal ;
and in 3 Infl. 16, 17, thefe Cafes are cited on that
Branch of the A61 ; Firflj If a Man takes oflF the Great
Seal from one Patent, and fixes it to another Writing
purporting to be another Grant of the King, this is
held to be no {c) Counterfeiting of the Great Seal.

Secondly, If one having a Grant by Letters Patent of
the Manor of Dale from the Crown, rafes out the Ma-
nor of Dale and inferts the Manor of Sale, which is a
greater Manor, and likewife belonging to the Crown ;
this is alfo held to be no Counterfeiting of the Great
Seal.

Thirdly, There is a Cafe reported of an extraordinary
Contrivance of one Leake, a Chancery Clerk. This

Leake

(h) See the 13 6? 14 Car. 2. cap. 29. for Reverfing the Attainder of
the Earl of Strafford.

{c) Held otherwife in the Year Book of 2 H. 4. and in Stamford PL
Cor. 3. But the Lord Ch. Juft. Coke condemns that Opinion, and with
him concurs the Lord Ch. Juft Hale. Hiji. PI. Cor. Vol. 2. i8x.

432. De Term. S. MichaeliSy 1717.

Leake being about to take a Grant from the Crown,
joined together two thin Skins of Parchment of a
proper Size for Letters Patent, and glued them fo
clofe together, that they appeared to be as one Skin,
and a true Patent for fome inconfiderable Grant was
written upon the outward Skin, and this Patent was
fealed. Afterwards the Party having unglued the two
Skins, took off the uppermoll Skin, and then wrote a
more valuable Grant upon the innermoft Skin, and fet
up this Title.

Now, though all thefe three Cafes were equally
mifchievous with the a£lual Counterfeiting the Great
Seal ; though they were all the moft remarkable Abufes
of the Great Seal imaginable ; yet it was adjudged that
none of the above mentioned Fa6ls amounted to a
Counterfeiting of the Great Seal. So cautious have
the Judges ever been of enlarging penal, much more
fanguinary Laws, by Equity ; and this too in Times
when Parliaments being lefs frequent, there were fewer
Opportunities of redrelTing the Failings and Slips in
one Law, by applying for another.

So that, I humbly take it, the Prifoner's Rafing a
Receipt written on the Face of the Bill, cannot be laid
to be Rafing an Indorfement. But if this Point fhould
be alfo againft me.

Whether ta- The next Queftion is, admitting this Receipt writ-
Kti^\^thy ten with Red Ink acrofs and upon the Face of the
putting upon Bill jq be au Indorfement; whether the Prifoner's

it a certain , . i • t i r i

Liquor, can taking out this Indoricmcnt by putting upon it a cer-
be called Ra- j.^jj^ Liquor to the Jury unknown, be a Rafing of fuch
Receipt. Indorfement ; for fo the Indi6lment exprelly fays,

(v'lTi^ that the Prifoner erafit, isfc. and I apprehend

this cannot be called Rafing.

I Rafing

De Term. S M'lchaelis, 1717. 433

Rafing of a Deed or Writing is Scraping out by
fome Knife, or other Inftrument ; Thus, radere nomen
(d) lignifies to fcrape out a Name. Siippole the Pri-
fwner, iniiead ot pouring this Liquor (which was Le-
mon Juice) upon the Receipt, had poured Ink, furely
that could not have been called Rafing out the Re-
ceipt ; it would have been Blotting, but not Rafing it
out; and if putting out the Words by Ink had not
been Raiing, then no more can the Putting out the
Words by any other Liquor be fo called. I'his Ta-
king out the Words by Lemon Juice miy be laid to
be an Expunging or Altering of the Bank. Bill, which
laft is within the Words of the Statute. But the Pro-
fecutor has not upon that Claufe thought fit to indi£l
us. We are indi6led only for Rafing this Indorle-
ment ; whereas we infill:, that the Putting or Taking
out of the Receipt by pouring a Liquor thereupon,
cannot be called a Rafing out fuch Receipt.

In the next Place, we fay the Indi6lment is naught,
as it muft be intended to be an Indi£i:ment for Ra-
fing the Infer iptum on a Bank Note.

The Statute of 8 and 9 Will. ^. Par. -^6. makes ei-
ther of thefe two Fa£ls Felony, (videlicet) firft, Forging
or Counterfeiting a Bank Bill or Note; zdiy, Rafing or
Altering an Indorfement on a Bank Bill or Note. So that
the Indi£lment is to be intended on the latter Branch,
that is, for Rafing an Indorfement ; whereas ic is
laid for Rafing an Infcriptum, Anglicc an Indoriement ;
and here this Anglici is void (e) ; for the Word Infcrip-

Vol. III. 5 S turn

(d) Aurelius Cotla CotifuU Sententiam rogalus, nomen Pifonis radendum
Fajijs cenfuit. Vide Tacit. Annal. lib. 3.

{e) If there be a proper known Lalin Word to exprefs a Thing by,
no Drfcription, though wi:h an Anglicey will be fufficient. Sty, 313.
Flojd verfus Morgan. 2'dv, 6Z.

434 ^^ Term. S. Michaelis, 17 17.

turn does not properly fignlfy an Indorfement, but a
Superfcription ; Indorfamentum might do, or there is a
proper Word in the Di6lionary derived from the Greek,
(vi^.) Opijlhographum. But if this Point Ihould be a-
gainrt me, then

It is to be confidered, whether the Verdicl be fuf-
ficient, fince it does not find, that the Prifoner did
this for the Sake of Lucre, or with Intent to deceive or
defraud the Bank.

Whether The rccitlng Part or Preamble of the Claufe of ths
Imbie''oft'heA<a» ^vhich makes this Felony, takes Notice (/), that

Aa of Par- " whereas divers Frauds and Cheats had been put upon

nomquiVite^ " '•^^ Governor and Company of the Bank of England,

thatitfhouid" l)y the Altering, Forging and Counterfeiting of the

aKbnpro-" Bank Bills and Bank Notes, and by Rafing and Al-

fecuted for " tering Indorfements thereupon : Be it therefore en-

gainft it, has " adcd, that thls be declared and adjudged Felony

done it with « ^vithout Benefit of Clergy."

an Intent to oJ

make an unlawful Gain to himfelf, and to defraud the Bank.

Now, as the Recital or Preamble of an A61 of Par-
liament is very juftly obferved by the Lord Coke to be,
as it were, a (^) Key for opening the Meaning and
Intent of the Aft ; fo it feems plain by this Intro-
duftion or Preamble, that no Rafing or Altering a
Bank Note can be Felony, unlefs it be done to de-
ceive or defraud the Bank. The Preamble recites the
Mifchief, and it is the Bufinefs of the ena£ling Part to
cure that Mifchief.

Otherwife it Suppofe then a Man by way of Experiment fhould

might ex- 1 I- 1 I , T^ 1 1 • 1 T-' c

tendtoaPer-publickly, nay at the Bank, and in the very V lew or
[nnoS '' ^^^ Governois and Direftors thereof, make an Altera-

and by way tlOll

ofExperi- (/) Se6t 36. (^) I Inft. 79.

.'ncnt.

De Term. S. Michaelis, 17 17. 439

tion or Rafure in a Bank Note, or in an Indorfement
of fuch Note : Suppofe he Ihould, in fuch publick
Manner as I have mentioned, commit the very Fa£t
of which the Prifoner is found Guilty, {videlicet) by
putting a certain Liquor upon an Indorfement of a
Bank Note, take out the Indorfement, and make no
Manner of Ufe of it afterwards, but at the fame
Time deliver it up to the Bank, would this be Felony ?
Give me Leave to fay, there is no Colour for it:
A^us non facit reum, nifi mens fit rea.

Wherefore, taking this not to be Felony, then, for
aught appears by the Verdift, this might be the very
Cafe, all the whole Verdi£l: might be true. The Pri-
foner might, by putting a Liquor upon the Indorfe-
ment written on the Bank Note, have taken out the
Indorfement ; and yet this might have been done inno-
cently, and without any Intent to defraud the Bank.
It is confequently abfolutely necefTary it lliould have
been found by the Jury, that what was done by the
Prifoner, was done with Delign to defraud the Bank.

It is remarkable, that in the late Indi£lment againfl:
Davpfon this was exprefly found ; and I prefume, the
Counfel who perufed the Indi£lmcnt, thought it ne*
cefTary in the prefent Cafe, becaufe it is infertcd in
the Indiflment, that the Prifoner did this to make an
unlawful Gain to himfelf, and to defraud the Bank of
great Sums of Money.

I cannot but obferve to your Lordflilps, that after
tlje Trial, and the Verdi6i: found, thih Omillion in
the Verdi£l: being difcovered, the Counlel on the other
Side fo far thought it to be material, that when we
had once attended your Lordlhips, and had (as was
then thought) fettled the whole Ipecial Verdidl:, the
2 other

43^ De Term. S. Michaelis, 17 17.

other Side (I fay) gave us a new Summons, in order
to have this inferted in the Verdifl: ; but your Lord-
fliips with great Juftice faid, it could not be done
without the Finding of the Jury. Indeed, at the
firft Sight, I was not apprehenlive this Defe£l was
fo material, as on a fecond View, occafioned by the
Miftruft of the King's Counfel, I now find it to be.
And therefore, fince the whole Verdift may be true,
and yet the Fa£ls found to have been done by the
Priloner, might have been done innocently, and with-
out any Intention to defraud the Bank; for this Reafon
the Verdi£l, as found, feems defedlive, and not to make
the Prifoner guilty of Felony.

Thus have I gone through what I intended to
trouble your Lordlhips with on this Occafion : I would
add, that your Lordftiips have now before you a Cafe,
wherein the Life of a Man is concerned ; and if all
thefe Points are not plainly for us, (as we hope, that
at leaft fome of them are) but if any of them fhould
be but doubtful, you will even then conclude in Favo'
rem Viu,

Your Lordlhips are in the Cafe of a penal Law,
penal even to Life, and therefore not to be taken
- jtfi^Uf ,'^ or aided by any Intendment or equitable Con-
ftrudion whatfoever.

Your Lordlhips are in a Cafe depending on the
Conftrutlion of a new KQ. of Parliament, at bell: but
doubtfully penned ; and the Gentlemen in the Direc-
tion at the Bank may, if there fnall be Occalion,
eafily obtain an A61 for the Explanation of it, in
thele Times of frequent Seillons of Parliament.

Your

■^^dhfiiUiCtaaM^i*)

De Term. S. Michaelis, 17 17. 437

Your Lordfliips are in a Cafe, where, if you ftiould
be of Opinion, that this Fa£l, as now found, Ihould
not be Felony, yet the Prifoner will not have efcapecl
without Punilhment, having already fuffered a Year
and a Half's clofe Imprifonment, and that in Nerp^ate.
And therefore upon the whole Matter,

If jfojhua Adams was not well empowered, as this
Verdict is found, to fign Notes for the Payment
of Money for the Bank, he having no Authority un-
der their Common Seal for that Purpofe, as we take
it he was not, this being an Authority and Truft of
the higheft Nature, that can poflibly concern the
Bank :

Or if this Receipt for ninety Pounds, Part of the
Sum of one hundred Pounds, written acrols and on
the Face of the Bank Note, be not an Indorfement,
(as we take it not to be, being the very Reverfe of
the Meaning, Senfe, common life, and Derivation of
the Word :)

Or if Taking out the Words of the Receipt upon
the Bank Note by putting this Liquor upon it, be not
Raiing or Scraping out the Words, as in common Senfe
and Parlance it cannot be fo taken :

If the Indi£lment be ill only for Raiing the Infcrip-
turn on the Bank Note, without faying the Indorfement:

Or if it be necefTary, that the Verdi£l fliould find
that this Fa£l: was done with a View to Lucre, and
to defraud the Bank, as furely it is by Reafon of the
Preamble of the a£1: which recites, that the Frauds
and Cheats which have been put upon the Bank, were

Vol. III. 5 T the

438 De Term, S. Michaelis, 17 17.

the Inducement and Occafion of making the Aft ; and
all the Fa£ls found by this Verdift may poiTibly have
been done innocentry, and by W'ay of Experiment ; for
which Reafon it ought to have been found as laid in
the Indiflment, that the Prifoner did this with an In-
tent to defraud the Bank : If any one of thefe Points
be with me, (as I humbly take it they all are) then
I hope your Lordfliips will be of Opinion, that this
Fa£l, as found by the Verdi£l, is not Felony, and in
Confequence of it, that the Prifoner ftiall be difchar-
ged. [A].

[A] In this Cafe the Judges differed in Opinion ; but the Majority
oF them held it to be Felony : However the Prifoner was tranfported,
and not executed.

D E

439

D E

Term. S. Michaelis,

1735-

Dominus Rex verf. Thomam Burridge.

Lord Hard-

[In Banco Regis.] ^f>;.t/-

Page^

jH/^ Reporters Argument for the Profecutor. P'-oh",

Zc^jjuftices.

THIS comes before the Court on a fpecial Verdi£l
found before Mr. Tuftice ?a£e, at an Affifes held ^"^ ,*="";
at Taunton for the County of Somerfet, April 2. in the bny within
feventh Year of his prefent Majefty, upon an Indift- ^^^^^^ "^^^
ment of the Prifoner at the Bar, Thomas Burridge, for ftntenced to
aiding and alTifting one William Palmer, convided of Fe- ^j fo';"^^,""
lony, to efcape out of Prifon. The Indi6lment of this Years, con-
Thomas Burridge fets forth, that at the General Qiiarter-Ion"ti'ir .J-"
Seffions of the Peace held at the City oi Wells in and for t"^^ T'^"'"'
the County of Somerfet, on the 1 1 th of January in the a,^d'™ifa
fifth Year of his prefent Majefty, before Thomas Ca- J'J^'^^g^^J '°
retp, Efq; and others his Majelfy's Juftices of the Peace, tence;' and

if a Stranger
aflift fuch Felon convift, being in Cuftody under Sentence of Tranfportation, to efcape out
of Prifon ; (provided it be fuch an Affiflance as in Law amounts to a Receiving, Harbouring
or Comforting fuch Felon ;) the Perfon affifting is Acceflary to the Felony after the Fadt :
But then in the Indidtment for this [lift Offence, it mull be charged tliat the Offender lad
Notice of the other Felony or Convidion.

z one

440 De Term, S. Michaelis, 173^;'.

one William Palmer was in due Form of Law convi£led
of Stealing and Taking away an Ewe-Sheep, of the
Value of (ix Shillings, of the Goods and Chattels of a
Perfon unknown ; for which Felony William Palmer
was by the faid Court adjudged to be tranfported for
the Space of feven Years, according to the Form of
the Statute, and was by the faid Court committed to
the Cuftody of Edward Cheyney, the then Keeper of his
Majefty's Gaol of Ivelchejler in the laid County, there
to remain until he (hould be tranfported according to
the faid Sentence.

And that afterwards (to wit) on the i 3th of OSlober
in the fixch Year of the Reign of his prefent Majeity,
the Priloner Thomas Burridge, at Ivekhefler aforefaid,
did wilfully and felonioufly aid and aflTift the faid
William Palmer to efcape out of the faid Gaol, by
Means whereof the faid William Palmer then and there
did eicape out of the faid Gaol, againft the Peace of
our Lord the King, his Crown and Dignity ; which In-
dl£lment the faid Juftices did by their own proper Hands
afterwards at the Gaol-Delivery for the faid County, on
the 5 ift Day of July in the feventh Year of the Reign
of his prefent Majerty, before the Lord Chief Baron
Reynolds and Mr. Baron Thompfon, then Juftices of
Gaol-Delivery for the faid County, held at Wells before
the faid Juftices laft above named, deliver into Court ;
whereupon at that fame Gaol-Delivery, the Sheriff" of
the faid County of Somerfet was commanded by the
faid Juftices, that he iliould not forbear by Reaion of
any Liberty within his Bailiwick, but that he ftiould
take the £aid Thomas Btirridge to anfwer unto our faid
Lord the King touching and concerning the Premiftes,
And now (that is to fay) at the General Delivery of
the Gaol of our faid Lord the King, of his faid County
of Somerfet^ of the Prifoners therein, being held at the
Caftle of Taunton in and for the faid County, on
I Tuejday

De Term. S. Michaelis, 173^. 441

Tuefday the 2d of April In the feventh Year aforefaid
of the Reign of our faid Lord the King, before Mr.
J Lift ice Page and Mr. Juftice Lee^ the faid Thomas Bur'
ridge, under the Cuftody of Thomas Wellman, Efq;
Sheriff of the faid County, unto whofe Cuftody the
faid Thomas Burridge was before committed for the
Caufe aforefaid, being brought to the Bar by the faid
Sheriff, was arraigned, and pleaded Not guilty, and
put himielf upon the Country ; and a Jury being im-
panelled, they find a fpecial Verdi£l ; that is to fay.

The Jury find the Indi£lment of William Palmer for
the felonious Stealing of the Sheep, and that he was
convi£led of that Felony, and that he prayed the Bene-
fit of the Statute in that Cafe, which was allowed
him ; and that he thereupon was fenrenced to be
tranfported for feven Years, which Indictment, Con-
viftion and Sentence, the Jury find in h>ec verba ;
they further find, that William Palmer was by the laid
Juftices at the faid General Seffions of the Peace, com-
mitted to the Cuftody of the faid Edrvard Cheyney, in
the Indi(3:ment mentioned, the then Keeper of the faid
Gaol at Ivelchefler in the faid County ; and that after- s
wards, and before the 1 3 th Day of 05iober in the faid
iixth Year of the King, the faid Edivard Cheyney, the
Gaoler of the faid Gaol, died ; and that the faid Wih
Ham Palmer remained in the faid Gaol in the Cuftody
of John Prober, then being Sheriff of the faid County,
and not in the Cuftody of any Perfon or Perfons
whatfoever contracting for the Tranlportation of the
faid William Palmer.

And the Jury further find, that no Contraft was
made with the faid Sheriff, or with any other Perfon
whatfoever, for the Tranfportation of the faid William
Palmer for the faid Felony, purfuant to the A£1 in that
Cafe provided.

Vol. III. 5 U The

442. De Term. S. Michae/if, 173 v

The Jury further find, that the now Prifoner Tho'
mas Bunidge on the laid 1 5 th of Odober in the laid
fixth Year of the Reign of the King, then being a
Priloner in the faid Gaol at Ivelchefler aforefaid, and
in the Cuftody of the faid Juhn ProSler then being
Sheriff of the faid County, did wilfully aid and aflift
the faid William Palmer^ lo being in Cuftody us afore-
faid, to make his Eicape out of the faid Gaol : And
whether upon the whole Matter the now Prifoner be
guilty of Felony, the Jury leave it to the Court.

The^Cafe in rpj^g q.^(q Jg J^ ^^^^ ^^ j^^^g d^^j, fj^jg . Qne 117/-

liam Palmer was convi6led of Sheep Stealing, which is
Felony (a) within Benefit of Clergy. Upon his Con-
vi6lion, he prayed the Benefit of the Statute in that
Cafe provided, (by which muft be meant the late Sta-
tute of the 5th of Queen Ann, Cbap. 6. which allows the
Benefit of Clergy without (h) Reading) which was ac-
cordingly granted him. Upon this, there is Judgment
given iigainil him, that he ftiould be tranfported for feven
Years ; and before any Contract made by any Perfon
with the Sheriif, or any other, for the Tranlportation
of the faid William Palmer, he is aliifted by the Prifoner
at the Bar to eicape out of Prilon. And the Qiieftion
is, whether this William Palmer at the I'ime of his
cfcaping was a Felon ; or whether the Felony of
William Palmer was pardoned, either by the Statute of
1% Eli^. cap. "J. which takes away Purgation, or by
the 5th of Ann, Chap. 6. which allows the Benefit of
Clergy without Reading ; or whether any Words of the
Statute of 4 Geo. i. (c) or other Statute which em-
powers the Judge to order Tranfportatlon in Cafes
of Clergyable Felonies, whether (I fay) any Words
I in

(a) By the 14th of Geo. 2. this is made Felony without Benefit of
Clergy.

(i) StSt. 4. (f) Cap. II.

De Term. S. Michaelis, 1739, 443

in this or any other Statute extend to pardon this
William Palmer before his Tranfportation and Service
beyond Sea for feven Years ? For it muft be ad-
mitted, that if William Palmer was by any of thefe
AQs pardoned for the Felony at the Time of his
Efcape, then he not being at that Time a Felon, it
could not be Felony in the Prifoner at the Bar to aflift
him to efcape. But I take it, that notwithftanding
any of thefe A£Is of Parliament, William Palmer was,
and continued a Felon at the Time of his Efcape ; and
confequently that it was Felony in the Prifoner to aflift
him in order thereto.

The Statute which I would beg Leave firft to take in Cares
Notice of, though not the firft in Time, is that of ;;;j';^"cie'r.
the !)th of Queen ^»«, Chap. 6. and it is the laft Claufe gy the Sta-
of it. This Statute recites, that " forafmuch as when XU tiles
*' any Perfon was convifted of any Felony within the ^^ay Read-
" Benefit of Clergy, upon his Prayer to have the Be- vlfcs^thTr
*' nefit thereof allowed him, it had been ufed to ad- Jj^ P="y
" minifter a Book to him, to try whether he could niOicd as a
*' read as a Clerk, which by Experience had been ^^^^ """
" found to be of no life : Therefore it is enadled,
" that if any Perfon be convifted of a Felony within
•* the Benefit of Clergy, and fhall pray to have the
" Benefit of this A61, he fhall not be required to
read ; but without any Reading (hall be allowed,
taken, and reputed to be, and punifhed, as a Clerk
convi61;, which fhall be as effeftual to all Intents and
Purpofes, and be as advantageous to him, as if he
" had read as a Clerk."

So that now, without the Intervention of the Or-
dinary, (v/ho never was more than a [a] Minifter at-
tending

[A] Upon a Writ of Error of a Judgment upon an Indiftment of
Sheep-ftealing, (as in the principal Cafe above) amongft many other Ex-
ceptions, ■

444 ^^ Term. S. Mlchaelis, 1739.

TheOrdi- fen(i;ng the Court, and had no Part of the iudicial

nary never ^ rr i • p r i

afted as a Powcrj the Oftendcr is to have the Benent or Clergy

i"aMiiIiI!er ^ithout his Reading at all. But it cannot be infifted

only on the upon, that there are any Words in this Statute of the

of cTergy! '>^^ ^'^ Qtieen Ann, which amount to a Pardon of the

Offender ; the Statute (ays, he fhall not be put to read,

but Ihall be taken to be as a Clerk convi£l ; but at

the fame Time is fo far from pardoning the Offender,

that it fays the very Reverfe, by providing that he

Ihall be punilhed, and that too as a Clerk convi£l:.

But then it may be afked, what is meant here by a
Clerk convift, and how is fuch a one to be punilhed ?

What is Now, by the Words a Qlcrk convi6i is intended any

aerkcon^ Pcrfou in Orders, or capable of being in Orders, that

via-, and is convi£led by the Verdi6l of a Jury, or by his own

Confellion, of a Felony within Benefit of Clergy; and

fuch a Clerk convi6l was this William Palmer. And

How fuch a As to the next Queflion, how fuch a one convi6led

punifhed by of a Fclony within the Benefit of Clergy was to be

i8£//z. punifhed? The Statute of i8 Eli^. cap. 'J.(d) gives a

plain Dire6lion, " that the Offender, after Clergy al-

" lowed, fhall not be delivered over to the Ordinary

" to make Purgation, but fhall be burnt in the Hand,

" and after Burning, he fhall be delivered forthwith

I ** out

ceptions, one was, that in the Entry of the Allowance of Clergy, no
Mention was made of the Ordinary, (z'iz.) ^od liber traditur Defcndenti
per Ordinar', &c. fed tion allocat' : For, by Holt Chief Juftice, no Men-
tion was ever made of the Ordinary for this Purpofe. Only formerly
it was faid, 'Traditur Ordinario, when the Uflige was, to deliver the
Clerk to the Ordinary for Purgation. And in the Time of Edward
Fourth, (9 Ed'-ju. 4. 28. «. 21 Ed'u:. 4. 21. b.) it was adjudged, that the
Ordinary is not a Judge of Reading, but only an Officer minifterial to
the Court, and upon tfiis Ground the Allowance of Clergy by the Or-
dinary was never entered. Stone's Cafe, Hill. 6 Gul. B. R. from the
Reporter's Manufcript. See alfo the Lord Hale's Hift. PL Cor. Vol. 2.
328, 380, 381.

{d) Seft. 2.

De Term, S. Mtchaelis, 17 3 7. 449

" out of Prifon ;" which latter Words have been taken
to amount to a conftru61:ive Statute Pardon. So that,
I think, two Things are to be confidered :

Firjit From what Time a Felon convldled of a cler*
gyable Felony is intitled to the Benefit of the Stature
Pardon of i8 Elin^ whether from the Allowance of
Clergy, or from the Burning in the Hand ?

Secondly^ What Alterations are made as to this Point
by the Statute of 4 Geo. i . which leaves it to the Di£*
cretion of the Judge to order the Offender to be
tranfported, inftead of being burnt in the Hand ; Or,
with Refpe6l to the prefent Cafe, whether William Pal*
mer, having been convifted of a Felony within the
Benefit of Clergy, and having been ordered by the
Judge that tried him to be tranfported, is intitled to
the Benefit of the Statute Pardon, either by 18 £//i^.
or by 4 Geo. i . before he has been tranfported ?

And I take it that he is not: Which Point, if I
fhall be able to maintain, from thence it will follow,
that Palmer continued to be a Felon at the Time when
the Prifoner aflifled him to efcape ; and if Palmer was
then a Felon, it muft be Felony in the Prifoner at
the Bar to affift his Efcape ; and further, as I appre-
hend, that it does not alter the Cafe, that no one had
contrafled to tranfport this Palmer, who was thus un-
der Sentence of Tranfportation, and was affifted to
efcape.

With Regard to the firft Point ; the Time from From what
whence an Offender convi£led of a clergyable Felony, fen'der^con-
and being allowed his Clergy, and burnt in the Hand, ^''^^'i°J*
Ihall be deemed to be intitled to this Statute Pardon ', Felony, and

being allow-
ed his Clergy, fhall be deemed to be intitled to the Statute Pardon.

Vol. III. 5 X That

44^ De Term. S. Michaelis, I73S'-

That depends intirely upon the Statute of i8 Eli^
cap. 7. and on the Conftru£lion that has been made
thereupon ; for which Reafon I would previoufly take
Notice, firfly of the Words of that A61, and the Occa-
fion of making it; and, idly^ how the Words came to
be conftrued to amount to a Pardon, when they do noC
exprefs any fuch Thing.

As to the Statute of 18 Eli^. cap. 7. the Title of
that Part of it which relates to the prefent Qiieftion,
is, An Order for the Delivery of Clerks convid without
Purgation : The Preanible, fo far as concerns this Point,
fays, " That for the Avoiding of the fundry Perjuries,
" and other Abufes in and about the Purgation of
" Clerks convift delivered to the Ordinaries, be it en-
" a£led, that all Perfons that at any Time thereafter
" fhall be allowed and admitted to have the Benefit or
Privilege of their Clergy, fhall not be thereupon de-
livered to the Ordinary, as had been accuftomed ;
but after fuch Clergy allowed, and Burning in the
Hand, according to the Statute in that Behalf pro-
vided," (which muft be meant of the Statute of 4
H. 7. cap. 1 3. that having firft inflicHied Burning in the
Hand) " the Offenders Ihall be forthwith inlarged and
delivered out of Prifon, by the Juftices before whom
fuch Clergy fhall be granted (e) : Provided that the
Juftices before whom fuch Allowance of Clergy fhall
be had, fhall ajid may, for the further Corre^lion
of fuch Perfons to whom Clergy fhall be allowed,
*' detain them in Prifon for fuch convenient Time, as
" they in their Difcretions fliall think convenient, fo
'" as the fame do not exceed one Year's Imprifon-
" mentj witli a further Provifo (/"), that one admit-
*' ted to his Clergy fhall neverthelefs be anfwerable for
" other Felonies."

(f) Sea. 5. (/j Scfb. g*

t As

<(
<c

.cU

De Term. S. Michaelis, i^'^^. 447

As this and divers other Statutes take Notice of the The Ong;-
Allowance of Clergy, (or to fpeak more properly, the fit of Clergy]
Benefit of Clergy) it may not be amifs here to ob-
ferve, what the Lord Hobart (288) fays of the Origi-
nal of this Privilege, (w^J that the Benefit of Clergy
was a Refuge provided by Common Law in Favour
of a literate Offender ; but that it took its Original
from the great Regard fhewn to the Church ; and
although at firft only Clerks in Orders were allowed
fuch Privilege, yet afterwards this Law, in Favour of
Learning in general, was extended to all Perfons capa-
ble of taking Orders. But as to the Occafion of the
Statute of 1 8 £//^. it appears from the Preamble there-
of, already taken Notice of, to have been made to
avoid the fundry Perjuries, and other Abufes committed
in making Purgation. The Manner of thei'e Trials be-
fore the Ordinary is fet down in Stamford, 138. Hob.
289. I^ult. de Face Regis, 217. more fully than in any
other Books, and appears to have been thus:

Firft the Party tried was himfelf to make Oath And the
©f his Innocency ; next there was to be the Oath of the Trial be-
his twelve Compurgators, who were to fwear, that ^^'^ '^'^ ^'^-
they believed him innocent ; then the Witneffes for
the Party tried were to give their Evidence ; after
which, the Jury were to bring in their Verdift ; and
if the Verdict was for the Prifoner, the Ordinary pro-
nounced him innocent. This folemn Form and In-
tervention of the feveral Perfons concerned in thefe
Proceedings, with the feveral Oaths that were made
on the Occafion, did create great Variety of Perjuries, And the ill
and (which generally are their Companions) Suborna- ce°"that"at-

tions of Perjury. tended them.

It is the Lord Hobarth Remark, (291) that the
Witneffes in this Sort of Mock Trials, and likewife

the

448 De Term. S. Michae/is, 17 ^S*-

the Compurgators, who were upon their Oaths de ere-
duUtate, as alfo the Jury, all had their Share in thefe
Perjuries. His Lordftiip further obferves, that the
Judge himfelf was not quite clear ; He might have
brought in one more for a Share, {viz^) the Party
tried, who, though he had been before convicted on
the cleareft Evidence, and though never fo confcious
of his own Guilt, yet ftill was to fwear he was inno-
cent. But however, by this Kind of Mock Irial of
Purgation, notwithftanding it was accompanied with
fo much Wickednefs, if the Party was found Not guil-
The Advan- ty, he received thefe Advantages : He was reftored to
rrue'/toVhe' ^"'^ Credit and to his Liberty, to his Capacity of pur-
Party, in chaling Goods and Chattels, and of taking and receiv-
thisVm]"he i"g ^^"'6 Rents and Profits of his own Eftate from
was found fhenccforth to accrue ; and from that Time was to be
taken to be perfectly innocent. Neverthelefs fuch Pur-
gation had no Retrofpe£l, fo as to reftore to the Party
any of his Goods and Chattels, or the Rents and Pro-
fits of his Lands that were before vefted in the Crown,
as forfeited on the former Convidlion by the Verdi£l.
5 Co. II o, Foxleys Cafe.

But as the Parties thus tried before the Ordinary
upon their Purgation were generally acquitted ; there-
fore, where a Felon tried in the Temporal Courts was
not only found Guilty, but that Guilt appeared to be
aggravated with fome heinous Circumftances, in fuch
Cafe the Temporal Courts would not truft the Ordi-
What were nary with the Trial of the Offender, but delivered
quencMof ^'^^^ ^^^ Clerk convift ahjque Purgatione facienda -, un-
duiivering der which Circumftances the Clerk convift could not

over a Clerk i r\ • i • ' -r, • r ^ •

convia, to make Purgation, but was to contmue m Priion during
the Ordi- his Life ; all which Time he was incapable of pur-
Purgatione chafing any Perfonai Eftate, or of retaining to himlelf
facienda. g^y of the Rents and Profits of his Real Eftate, unlefs
the King ftiould be pleated to pardon him. And yet
I this

De Term. S. Michaelis, 1739. 449

this was not without its Inconveniencies; for it was
looked on as fevere (and with lome Realon too) for
the Temporal Courts, almoft in any Cafe, to fend the
Clerk Convi£l: to the Ordinary abjque purgatione fad'-
enda, when it was to be attended with the Confe-
quences above mentioned ; wherefore^ generally fpeak-
ing, Clerks Convi6l were delivered over by the Tern*- -
poral Courts to the Ordinary, without taking from him
the Liberty of making Purgation ; and as thele Per-
juries (and the evil Confequences of them, Suborna*
tion and Corruption) ufually attended fu( h Purgations ;
as thefe mock Trials took their Rife from fa£l:ious
Tenets, tending to exempt the Clergy from the Secular
Courts ; as this was a Remnant of the Popilh Power,
and an Ufurpation on the Common Law, it feemed
high Time to abolifh fo vain and wicked a Ceremony.

For which Reafon this Statute of i8 Eli:^. quite Purgatioh
takes away Purgation, and enails, " That after the [,"' ^""3 ^j^j^
" Offender is allowed his Clergy, he fhall not be^ut the of^
" thereupon delivered to his Ordinary (as had been to"brcon-
" accultomed) ; but after he has been allowed his Clergy ''""5'' '."
" and been burnt in the Hand, he fliail be forthwith any Time
" enlarged and delivered out of Prilon by the Tuftices "''^ exceed-

o J ^ J jiip- a Y(.ar

" that allowed him his Clergy, with a Provifo, that if the jud^«
" the Judge may, if he in Difcretion fliall think ^.l"^ ^^
" fit, continue the Offender in Prifon." The Mean- fit.
ing of which lafl Claufe was, that whereas before the
Making of this Law, it was in the Power of the Judge
to deliver over the Offender to the Ordinary al^fqu^
purgatione, in Confequence of which he was to con-
tinue in Prifon during his Life, unlefs pardoned ; this
was thought too fevere, and inftead thereof, the judge
who tries the Prifoner, if he finds that he deferves
fome further Punifhment, may flill detain him in Prifon
for any longer Time not exceeding a Year.

Vol. IIL 5 Y The

490 De Term. S, Michaelis, 173s'-

wLfof "^^^ fecond Point to be confidered is, how thefe
18 £//z. Words in the Statute of 1 8 E//;^. which ena£ls, that
P^lSo^thincr *^^^ OfFender after his being allowed his Clergy, and
of a Pardont being bumt in the Hand, lliall be forthwith enlarged
cSrued^'^as ^"^ delivered out of Prifon ; How thefe Words (I
fuch. fay) which exprefs nothing of a Pardon, have yet been

conftrued to amount to one.

Now that was for the following Reafons : As the
Statute of 1 8 E//'^. had taken away this Proceeding
before the Ordinary, and by Confequence deprived
the OfFender of the Opportunity of making Purga-
tion ; fo it was reafonable to put the OfFender in the
fame Condition as he would have been in, if he had
performed that Purgation which the Aft of Parliament
difabled him from doing.

Hard indeed it would have been, if, after the Of-
fender had undergone the Punifhment of being burnt
in the Hand, and had been difcharged of his Imprifon-
ment, his Incapacity (hould ftill continue of purchaiing
or taking any Goods, Chattels or Perfonal Eftate,
either by his own Labour and Induftry, or the Bounty
of his Friends. This would be for the Parliament
to fet a Man at Liberty, and yet at the fame Time
to difable him from making any proper Ufe of that
Liberty ; fo that to avoid fuch an Imputation of Hard-
fhip, it was very reafonable for the Judges to conflrue
the Words of this Atl in the Senfe they have done ;
and, where the A61 fays, the OfFender after his being
burnt in the Hand fhall be difcharged out of Prifon,
to interpret it to mean, that he fhall be difcharged
from any further Puniihment ; and that thefe Words
fliall be taken as a Periphrafis or Defcription of a
Pardon. Befides, the Provifo in the A61 which fays,
that the Clerk admitted to his Clergy fhall be anfwer-
1 able

De Term. S. Michaelis, 1755'. 491

able for other Felonies, implies ftrongly, that he is
never to be queftioned again for this, taking the fame
to be pardoned by the A£1. See Hob. 291.

It remains then to fee, when this Pardon is to com-
mence and take Effe6l, and from what Time the Of-
fender is to have the Benefit thereof. And here the
Statute itfelf is exprefs, for it fays, after Clergy al-
lowed and Burning in the Hand, the Offender Ihall be
difcharged out of Prifon.

It has indeed been contended on the other Side, that
the Burning in the Hand is not any Part of the Punifh-
ment, but only a Mark of Infamy to notify to the
Court that the Offender has already had his Clergy,
and is to have it no more ; and for this is cited 5 Co.
50. Biggim\ Cafe, and Hob. 2c^/\. from whence it has
been inferred, that if the Burning in the Hand be no
Part of the Punifhment, it is not material that the
Prifoner fhould undergo it.

But, with Submiffion, I fhall endeavour to prove, Burning in
that Burning in the Hand is Part of the Punilhment. where Vhe
At Common Law this Punilhment was not known, ^ffende"- is
having (as is obferved above) been firft inftituted by his Clergy,
4 H. 7. cap. 13. Afterwards by \o ^ 11 W. 3. c^^''^'^-'^^^^^'
je6i. 6. it was changed into Burning in the Cheek, and what is af-
iinally by 5 Ann. cap. 6. jeSi.i. rechanged into Burning ^ord^'c/i/to
in the Hand. It mull be admitted the Lord Coke fays, the contrary,
that Burning in the Hand is no Part of the Punilh- judgment' *
ment ; and that this holds even in the Cafe of an as appears
Appeal of Murder where the Appellee is found guilty te^ora^
of Manflaughter, {vif^) that even there, though it be Reporters, as
the Suit of the Party, the King can Pardon the Burn- later Authg.
ing in the Hand ; and from hence it is collefted, that '■"'^•
after Clergy allowed, fuppofing Burning in the Hand
to be no Part of the Judgment, then no Part of the

Punifhmenc

492. De Term. S. Michaelis, 17 59.

Punifliment being behind, or remaining to be under-
gone, therefore the Offender immediately after Clergy
had, is intitled to the Benefit of the Statute Pardon ;
fo that in the principal Cafe Palmer no longer remained
a Felon, and confeqnently that it was no Felony to
affift him in his Efcape.

And yet with all due Deference to fo great an Au-
thority, I muft beg leave to infill, that this Cafe, as
reported by the Lord Coke, is not authentick, which in
a great Meafiire appears from the Cotemporary Re-
ports of the fame Cafe, which reprefent it in a quite
different Manner, as does alfo a later Report. Befides
which it is obfervable, that the very Reafons given by
the Lord Coke for that Refolution, make againft, or
feem at leall to weaken, the Force thereof.

This Cafe of Biggins is reported in two other Books,
both of great Weight, Serjeant Moore and Mr. Juftice
Crook, and both their Reports of it are different from,
nay, contradi£l the Report of it in the fifch Coke. In
Moore 571. it is reported by the Name of Stroughbo'
rough verfus B/ggon, and appears to have been an Ap-
peal brought by the Wife for the IMurder of her
Hufband, wherein the Appellee was found guilty of
Manflaughter only. I will mention the Words of the
Book, only turning the Law French into Engli/Jj.

. The Qtieftion was, whether the General Pardon
could Pardon the Burning in the Hand, (which muft
be meant the Qiieen's General Pardon, for the next
Words are, whether the QLieen could Pardon the
Burning in the Hand) and, fays the Book, it was
agreed the Qiieen could not Pardon it j and that the
Pardon could not operate thereon, becaufe it was the
Suit of the Party. And fo (continues the Book) ic
is like the Cafe of Corporal Punilhment on the Sta-
1 tute

De Term. S. Micbae/is, 173'^. 495

ture of Forgery or Perjury, (g) where if the Party
grieved fues by Original or Bill, the Qiieen cannot
pardon it. But it is otherwife where the Proceedings
are in the Star-Chamber ; for there the Profecutions
are at the Suit of the Qiieen. Whereupon the Ap-
pellee compounded the Profecution for forty Marks.

The other Report of the fame Cafe is in Cro. Eli^.
652, 682, by the Name of Shackborough and Biggins y
where in an Appeal of Murder the Appellee was found
guilty of Manflaughter. And in Cro. EUtj 632. where
the Cafe appears to have been firft fpoke to, it is faid,
the Court ruled, that the Appeal being the Suit of the
Party, the Burning in the Hand could not be pardon*
ed ; and the Queftioa being ftirred again in Cro. Eli^,
682. the Court were divided, Popham Chief Juftice,
and Clinch Juftice, holding, that the Qiieen could not
Pardon the Burning of the Hand, as this was at
the Suit of the Party, and they compared it to an
A6lion on the Statute of Forgery ; but Gawdy and
Fenner Juftices, maintained the contrary, though it
does not appear by the Book that thefe gave any Rea-
fon for their Opinion. However upon this, the Book
fays, that the Appellee was advifed not to run the
Rifque of the Judgment, but to buy off the Appeal,
and to give the Appellant, the Widow, forty Marks to
difcontinue her Appeal, which was accordingly done.

So that upon the Whole, inftead of this Cafe being
adjudged agreeably to Lord Cokei Report, for that the
King could Pardoa the Burning of the Hand in the
Appeal, it appears by the two Cotemporary Reports,
that the Cafe was never adjudged, but compounded ^
and that the Appellee was advifed by his own Counfel
not to abide the Event df the Judgment, but to buy
off the Appeal.

Vol. III. 5 Z And

(f) 5 Eliz. cap. 9. feft. 14.

494 ^^ Term. S. Michaelis, 173s'-

And now, I would confider the Reafons given by
the Lord Coke for what is reported by him to have
been the Judgment in Biggens Cafe, which initead of
fupporting, do very much weaken that Authority.
The Realons given by the Book are, firft, for that the
Burning in the Hand is no Part of the Puni/Jjment.

But as to this, furely Burning in the Hand is Part
of the Punifhment, not only in Refpeil of the Pain
by Burning, which is no flight one, provided the Judg-
ment be impartially executed, (as muft be fuppoled ;)
but on Account of its being a lafting Brand of In-
famy which the Party is to carry about him to his
Grave. It is fo far from being no Part of the Punilli-
ment, that it is all the Corporal Punifhment he is to
undergo in this Cafe.

The other Reafon given by the Lord Coke in his
Report of this Cafe is 11:111 lefs maintainable, namely,
that It is no Part of the Judgment : Whereas plainly it
is the very Judgment, and is fo entered on the Record
in thefe Words, Ideo Confideramm efl quod [the Of-
fender] in manu fua Uia cauteri^etur, according to
what is taken Notice of in Mr. Juftice Raymond's Re-
portSy 3^9. Eli^aheth Celier\ Cafe, where the Reporter
obferves, that the Precedents in Rajlall are fo. And
the fame Book likewife fays, that Biggens Cafe was
compounded, as I have mentioned before, and never
adjudged. The Lord Coke alio at the latter End of
his lalt Reafon admits, that if this Burning in the
Hand were Part of the Judgment, then the Crown
could not Pardon it, it being at the Suit of the
Party ; and if fo, then this appearing to be the very
Judgment, the Authority of* the Cafe is plainly given
up by him.

I It

■i>iA^ri^tei**>

De Term. S. Michae/is, 175^. 495*

It is true, in the Cafe of Searte verfus Williams, HoL
294. the Lord Hobart fays, that after the Benefit of
Clergy allowed to the Offender, the Statute, though
without Burning in the Hand, operates as a Pardon.
And I cannot but admit that in the Cafe then before
the Court, this was rightly faid, becaufe it was the
Cafe of a Clergyman in Orders who was the Offender ;
and a Clergyman has the Privilege of not being burnt
in the Hand ; for the Statute of i8 £//^. does not re-
quire thofe to be burnt in the Hand who are by Law-
privileged and exempted therefrom, as Clergymen are.
And tho' afterwards the Lord Hobart fays, that where
a Felon has his Clergy and ought to be burnt in the
Hand, yet it is not effential, but that a Man may-
have the Benefit of the Statute notwithifandins he be
not burnt in the Hand, as where the King pardons the
Burning, it is equally beneficial to the Offender as if he
had been burnt ; and that in fuch Cafe without being
burnt in the Hand the Offender is intitled to the Be-
nefit of a Statute Pardon ; though, I fay, the Lord
Hobart afferts this, and his Affertion be admitted to
be Law : Yet what I am concerned to maintain, and
which feems not to be denied by the Lord Hobart, is,
that wherever the Offender is not exempted from being
burnt in the Hand, either by being a Clergyman in
Orders, or a Peer of the Realm, or by being pardoned ;
in fuch Cafe the Offender muft be burnt in the Hand
before he is intitled by the 18 H//;^. to the Benefit of
the Statute Pardon.

And indeed this feems plainly implied in the lafl
two Lines of the Cafe of Searle verfus Williams, in
Hobart, which are, " That where the Statute fays after
" Burning, this imports where Burning ought to be ;
** otherwife, fays the Book, the Statute would do no

*' good

BhMM^a^H^iart^lMalB*

496 De Term. S. Michaelis, 173^*.

" good to Clerks, in whofe Favour it was chiefly ii>
" tended."

The next Cafe cited againft me was out of the Lord
Hales Pleas of the Crown, 240, cap. Clergy^ where that
learned Author, in reckoning up the Effefts and Ad*
vantages of being allowed the Benefit of Clergy, fays,
That in antient Times the Confequence of allowing
Clergy, was the Delivering over the Offender to the
Ordinary, either to make Purgation, or ahfciue purgar
tione, as the Cafe might require : But, fays the Book,
by this Statute of 1 8 Eli^. the Offender fliall now only
be burnt in the Hand ; which has (namely, which Burn-
ing in the Hand has) thefe Effe£ls : ifi^ It enables the
Judge to deliver the Offender out of Prifon. 2dly,
It gives him a Capacity to purchafe and to retain the
Profits of his Lands. ^^f/y, It reftores him to hia
Credit. And for this he cites Hob. Seark verfus ff//-
liams.

Now, to what Words muff all thefe Effe£ls and Ad-
vantages refer ? Why plainly to the laft Antecedent ;
and that is, to the Burning in the Hand ; after which
(yi^. then or on this Condition precedent) accrue to
him all thefe Advantages.

But if any Doubt ftiould ftill remain with Regard
to the Conftruftion of the Books of thefe two efni-
nent Judges in the Law, (as I hope there does not) I
fliall only mention one Cafe more on this SubjeiS:,
which is that of the Earl of Warwick, upon his Trial
by his Peers in the Houfe of Lords, for the Murder of
Mr. Coote. This Trial was on the 28 th of March
1^99; and though the Cafe is not to be found re-
ported in any Law Book, yet it appears at large in
3 very ufeful Book, which I (hull mention for no
z other

De Term. S. Michae/is, 1739. 497

other Purpofe, but to dlre£l to the Finding it in the
Journals of the Houfe of Lords, and they will be al-
lowed to be of the greateft Authority j I mean the
ColleBion of State Trials, yol. 5. iS-j. in the Trial of
the Earl of Warrpick, where the Arguments of the
Counfel and the Refolution of the Judges are related
at large.

Upon that Trial a Qiieftion arofe touching the Com-
petency of a Witnefs, who was called on the Behalf
of the Earl of Warwick ; it was one French^ who had
been convifled of Manilaughter, and allowed his Cler-
gy, but had not been burnt in the Hand. It appeared ^"'^"^f °^ ^

oj ' ^ I t ^ very lolemn

however in the Cafe, that the King had an Intention Refolution,
to pardon the Burning in the Hand, a Privy Seal ha- *o^,\,°^gj ^f
ving been u;ranted for that Purpofe ; but it not having Manflaugh-
paffed the Great Seal, the King's Pardon was out of[^J^J"J;f"
the Cafe ; and the only Qiieftion was, (and which re- Ckrgy, but
folves our prefent Qiieftion) whether one convifted of "h°e HaTd, '"
Manfiaughter, and who had been allowed the Benefit "o"" pardon-
of Clergy, but had not been burnt in the Hand, was Burning,

was

a good Witnefs ? '^°' ""^^"'^"^

to his Credit.

The then Attorney and Solicitor General (/;) con-
tended, that he ought not to be admitted as a Witnefs,
in Regard he ftood convi£led of Felony, whereby his
Credit was tainted, and that Credit could not be re-
ftored, unlefs he had been burnt in the Hand, which
would then have amounted to a Statute Pardon by 18
E//^. or unlefs the Witnefs had been pardoned the
Burning in the Hand.

On the other Hand the Lords heard Sir Thomas Porvis
as of Counfel with the noble Lord, the Prifoner then
at the Ear, and it appears, that in the Arguments on

Vol. III. 6 A both

(i>) Sir Thomas Trevor and Sir John Hawki,

4^8 De Term, S. Michaelis, 1755'.

both Sides, the Cafe of SearU and Williams^ from the
Lord Uohart\ Report, and alfo the Lord IMes Pleas
of the Crojvn, were cited with the greatefl: Advantage.
It was ftrongly urged on the Behalf of the Prifoner,
that the Allowance of Clergy alone reilored the Party
produced for a Witnefs to his Credit, and to all his
Capacities ; and it was a plaufible Argument made Ufe
of by Sir Timmas Porris, that, after the Party convi6led
of Manflaughter had been allowed his Clergy, it was
a very unreafonable Obje6lion againft him as a Wit-
nefs, that he had not that Mark of Infamy imprefled
upon his Hand ; and to fay he could not be a Witnefs
in a Court of Juftice, becauie he had not been branded
as a Felon.

After hearing Counfel on both Sides, the Lords de-
fired the Opinion of the Judges that were then attend-
ing on that folemn Occafion ; and the Lord Chief Ju-
flice Treby, with his ufual Clearnefs and Accuracy,
delivered his Opinion againft the Admitting this
Witnefs, declaring, that a Perfon convi£led of Felony
is tainted as to his Credit, and cannot be reftored
thereto, or admitted as a Witnefs, until he is par-
doned : That it is true, the i8th of Elisi. does operate
as a Statute Pardon ; but the Words of that A61 being,
that the Offender^ after the Allorvance of his Clergy, and
Burning in the Hand, JJjall be inlarged out of Prifon,
thefe Words make two Things previoufly requilite
to the Pardon, (vi^.) the Allowance of Clergy, and
Burning in the Hand ; both which are therefore Condi-
tions precedent ; So that the Perion produced as a Wit-
nefs for the Lord Warwick, though he had been allow-
ed his Clergy ; yet, not having been burnt in the
Hand, nor pardoned the Burning, he remained con-
vi([led ot Felony, and confequently no good Witnefs ;
With that Opinion the Reft cf the Judges then pre-
fent concurring, the Perfon offered to be produced as
I a Wit-

De Term. S. Michaelis, 17 35". 499

a Witnefs for the Earl of Warwick was difallovved, and
he gave no Evidence.

Having produced this great Authority, I need not
infift that Burning in the Hand is Part of the Punilh-
ment ; but may from hence infer, that in the Cafe of
a Layman, the Burning in the Hand, or the Pardon of
that Burning, is one of the Conditions required by the
18th of El'fzi. before that A61 can operate as a Pardon;
and I think I may from hence alfo conckide, that it
is now a fettled Point, fettled in the higheft Court of
Juftice, that, although the Offender has had the Al-
lowance of his Clergy, yet if he has not been burnt
in the Hand, and by that Means undergone the Punilh-
ment prefcribed by that Statute, he is not intitled to
the Pardon given thereby, but continues a Felon.

This leads me to the Statute of 4 Geo. i. cap. 9. In what Ca-
which enads, " (/) That where any Perfon fhall be '"'' '^'/j^'
*' convicted of any Oftence within the Benefit o{i. cap.(). \n
" Clergy, it Ihall be lawful for the Court before *Bt^°;";a^
*' whom fuch Perfon is convifted, or any other Court t'le Hand,
*' held at the fame Place with the like Authority, if Tranfpom-
" they think fit, inftead of ordering the Offender [0''°"^"'^'"'-'^^'^
" be burnt in the Hand or whipt, to order him how the ht-
" to be fent to his Maieffy's Plantations in Ame-^"^^^^^':

r 1 re - underltood

rica for the Space 01 leven Years, and to transfer by way of
« and make over fuch Offender by Order of the ^""'I,'''""

_ _ - - •' __ precedent to

*' Court, to the Ufe of fuch Perfons or their Affigns, aStatutePar-
" who fhall contraa for the Performance of iuch J?,";, J,", ',',^'
" Tranfportation for fuch Term of feven Years ; and the former
*' when fuch Offenders fliall be tranfported, and fhall ^J,?./ '
have (A) ferved their refpe£live Times for which they
fhall be tranfported, (which in the prefent Cafe is
for feven Years) fuch Service fhall have the Effect
of a Pardon to all Intents and Purpofes, as for that

" Crime
(/) Seft. I. {k) Seft. 2,

4<$o De Term. S. Mich ae Us, 17 3 S"-

" Crime for which fuch Offenders fliall be tranfported,
" and ihall have fo ferved as aforelaid."

So that, by the exprefs Words of the Statute, this
Tranfportation is to be inftead of Burning in the Hand;
and as by the i8th of ^li^. the Offender, though he
be allowed his Clergy, yet is not intitled to the Bene-
fit of the Statute Pardon, until he has undergone the
Punifhment of Burning in the Hand, which is the
Punilhment prefcribed by that Statute : So the Punifh-
ment of Tranfportation, which is in Lieu of Burning
in the Hand, where the judge who tries the Offender
thinks fit to order it, mull alfo be undergone before
the offender can be intitled to the Benefit of the Sta-
tute Pardon in the prefent Cafe. Or, as in the one
Cafe on the i8th of £//^. the Offender's fuffering the
Punilliirent of Burning in the Hand is made a Condi-
tion precedent to that Statute Pardon ; in like Manner,
upon this Aft of 4 Geo. i. the Offender's having under-
gone the Punilliment of Tranfportation muft alfo pre-
cede the Pardon given thereby.

To this however it has been objefted, that the Words
in the Statute of 4 Geo. i . are only in the Affirmative,
without being followed by any negative W^ords.

Ke^^ : But furely this is fuch an Affirmative, as
plainly implies a Negative : An A61 of Parliament, in
faying an Offender Ihall be pardoned, or fliall have
the Benefit of his Pardon, from and after fuch a Time,
muft neceffarily be intended to mean, that the Offen-
der fhall not have his Pardon until that Time. I take
the Rule to be, that wherever an A61 of Parliament is
introdu£lory of a new Law, (as this fJi a^Gco. i. plainly
is, it introducing a Punifhment hardly known before
among us, that of Tranfportation) Words in the Af-
firmative imply a Negative, which may be made ap-
I pear

De Term. S. Michaelisy 1739- 4^1

pear by innumerable Inftances. But as this is a large
Field, and might feem tedious, I (hall mention but
one:

The Statute of 27 H. 8. of Ufes, ena£ls, that the in Aas of
Cejluy que Ufe ftiall have the fame Eftate in the Land, f„"oducing
as he had before in the Ufe. Soon after the Making a new Law,
of which Statute this Cafe happened, and is reported firmatU "
in Plozpden, 1 1 1, Jmy Townjhendh Cafe, and i Infl. 348. imp'y aNe-
b. 1'enant in Tail made a Feoffment in Fee to the Ufe^^^^^'
of his eldeft Son, then an Infant, and his Heirs, and
died ; whereupon the Right of the Intail defcended to
the Infant Son, who was the Cefluy que Ufe ; yet the
Infant Son was held not to be remitted, though no
Folly could be imputed to the Son, when he accepted
the Feoffment, he being then an Infant, and though a
Remitter be a Thing favoured in Law, as it is a Refti-
tution of an old Right : But the Reafon, it feems,
was, becaufe the Statute fays, the PoffeiTion (hall be
executed in fuch Manner, Plight, and Form, as the Ufe
rpas before limited (I) ; and though thefe Words be only
in the Affirmative, they neceffarily (m) imply a Nega-
tive. See Hob, 298.

Further : If in any Cafe fuch affirmative Words in Efpeciaiiy to
an A61 of Parliament ought to receive that Conftruc- j'i'^k Mir""
tion ; here we have the very Cafe, in order to prevent chief.
a great and manifeft Inconvenience which would other-
wife happen. It would be a very great Inconvenience,
ftiould there be a Chafm, or Interval of Time, in
which one convifled of a Felony for which he is or-
dered to be tranfported, might be aided or affifted by
another to efcape out of Prifon without fuch other
Perfon's incurring the Guilt of Felony : But if Pah

Vol. III. 6 B wer

(/) The FeofFment makes the Infant in by Purchafe, but if he were
remitted, he would be in by Defcent.

(m) Vide ant' 6. in the Cafe of Mills verfus Banks.

462. De Term. S. Michae/is, I73<J.

mer fliould, in the principal Cafe, be conftrucd to liave
the Benefit of the Statute Pardon before he is tranf-
ported, merely by being allowed his Clergy ; then
from the Time of fuch Allowance, and before his
Tranfportation, he would become no Felon, and con-
fequently it would be no Felony in the Gaoler, or any
third Perfon, to fuffer or affifl him to efcape ; which
would be a great Inconvenience arifing from the Con-
ftru6lion of a Statute againft the exprefs Words and
apparent Intention thereof.

But fuppofe, for Argument's Sake, this Statute of
4 Geo. I . would bear two Conftru6lions : If by one
of thefe a publick Inconvenience would arife, and, on
the contrary, the other Interpretation would be pro-
du£live of no inconvenience at all, there could furely
be no Doubt which of thefe two ought to take Place,
Befides, Conftruing this Statute in the Senfe which the
other Side contend for, namely, by making it amount
to a Pardon, either from the Time of the Allowance
of Clergy, or of pronouncing the Sentence of Tranf-
portation, would render ufelefs the whole Claufe, which
ena6ls, that after the Offender has been tranfported,
and fhall have ferved beyond Sea for fo long a Time
as the Sentence orders, (which in our Cafe is for fe-
ven Years ;) fuch Tranfportation and Service fliall in-
title the Offender to a Pardon : All which Claufe muft
be rejefted, and of no Manner of Signification, if the
Words are to operate as a Pardon, before the Tranfpor-
tation and feven Years Service, which would be for the
Expofitors of the Law to ftrike a Claule out of the
Statute Book, at the fame Time that an ufeful Con-
ftruftion may be made of it. To this I may add,
that if Palmer is to be deemed pardoned before fuch
Time as he is a£lually tranfported, how can he be af-
terwards tranfported ? How can a Man be punilhed for
a Crime, which before the Punilliment was pardoned ?
I What

De Term. S. Michaelis, 1739. 463

What can be more abfurd than to fay, an Offender is
firft to be pardoned, and afterwards punillied ?

There is indeed a fubfequent Statute of 6 Geo. i . Principal
cap. 23. {e6h. 5. making it Felony without Benefit oi ^^.^'^"^q^^^
Clergy to refcue an Offender condemned to be tranf- i. concern-
ported, out of the Hands of thofe who had contracted Fdons con-
to tranfport him. The Occafion of which Claufe was demn«i to
probably to obviate a Doubt, which otherwife might have tion"ou° of
arifen, whether the Cuftody of the Contra£lor was a*J^^^"'''°^
lawful Prifon, and within the Statute De frangentibus tors.
Prifonam ; or, it might have been added, the more ef-
fe£}:ually to deter all Perfons from attempting a Refcue,
by tubje6ling thofe who (liould make fuch Refcue, to
the Guilt of Felony without Benefit of Clergy, even
though the Crime for which the Perfon refcued was in
Cuftody, was within Benefit of Clergy. But the Mat-
ter now in Qiieftion is in no Sort dependent upon, or
relative to, that Claufe ; there having been no Con-
trail ever made with any Perfon for Tranfporting of
Burridge the Prifoner at the Bar.

Wherefore, as this Statute of 4 Geo. i . impowering
the Judges to order Tranfportation for feven Years in
all Cafes of Felonies within the Benefit of Clergy,
places Tranfportation in the Stead of Burning in the
Hand; as the Offender's undergoing the Punifhment
of Burning was a Condition precedent to the Statute
Pardon ; as this ConftruSiion is agreeable to the ex-
prefs Words, to the plain Intent and Meaning of the
Ad:, and would prevent that Mifchief, which would
otherwife infue, were there to be an Interval of Time
wherein one might, with a Kind of Impunity, alTift or
voluntarily fuffer to efcape a Prifoner condemned to
be tranl ported for Felony : For thefe Reafons, I take
it, Palmer, though his Crime was within the Benefit ot
Clergy, yet he. being to be tranfported for fe^en Years,

was,

464 De Term. S. Michaelis, 1739.

was, and ftill continued a Felon ; and being fuch, it
was Felony in Burridge, the Priioner at the Bar, to
aflift him to efcape ; and that it cannot be material,
whether there was any Contra£l, or not, for the Tranf-
portation of Palmer^ it being Felony at Common Law
to afllft a Felon to efcape.

And this being the only Doubt which ftuck with
the Court at the Trial of the Prifoner at the Bar, if
that Doubt be at length refolved, (which I have here
endeavoured to do) I hope the Court will now pro-
nounce that Sentence of Tranfportation againft the
Prifoner, which would have been done at the Trial,
had this Doubt been out of the Cafe.

But, it is true, the Ingenuity of the Counfel for
the Prifoner has ftarted other Obje6l:ions, fome to the
Form of the Indi£lment, as being infufficient ; and
fome to the fpecial Verdi£l, as being imperfe£t : To
which I ihall endeavour to give an Anfwer.

fionofF/Lf ^^^ fii^ft Exception to the Indiflment was, that the
Armis in In- Fa£l is not charecd to have been done Vi isf Armis,

diftments ^

being only

J^^"^"" °^ But as Inferting thefe Words in Indiftments is only
by y/H. 8, Matter of Form, fo now by the Statute of 3 7 H. 8.
Scdquar'. ^^^ g^ jj^g Omillion of them is helped.

The next Obje^lion was, that it does not appear by
the fpecial Verdi£l, that when Burridge, the Prifoner
at the Bar, aflifted Palmer to efcape out of Prifon,
Palmer was then in Cullody for Felony.

But this feems to be fufficiently evident : The Jury
find, that Palmer was indi£led before the Juftices of
Peace of the County of Somerfet for felonioufly Steal-
ing an Ewe Sheep j that John Prober, the then Sheriff
I of

De Term. S. Michaelis, 1759. 4^9

of that County, in whofe Cultody this Palmer is fhewn
to have then been, ex caup prxdiSia, (that is, for the
faid Felony) brought the Prifoner to the Ear before
the faid Jultices to be tried; that he pleaded Not guiltyj
that he was found Guilty ; that he prayed the Benefit
of the Statute in that Cafe made and provided ; that
thereupon the Jullices pronounced upon him Sentence
of Traniportation for feven Years ; that in Confequence
thereof the Juftices committed Palmer to the Cuftody
of Edward Cheyney, the then Keeper of Ivelchefler Gaol,
in the faid County ; that the faid Edxvard Cheyney the
Keeper of the faid Gaol died ; that this Palmer re-
mained in Cuftody of the faid John Procter, the then
Sheriff of the faid County ; and that Burridge (the Pri^
foner at the Bar) being then a Prifoner in the faid
Gaol, and in Cuftody of the faid Sheriffs, did wilfully
aid and affdl: the faid Palmer ^ fo being in Cuftody as
aforefaid, to efcape out ot Prifon.

Now thefe Words, that Burridge, the Prifoner at thd
Bar, did a(Ji(i Palmer, fo being in Cuflody as aforefaid,
muft neceffarily be intended, fo being in Cuftody for
Felony as aforefaid ; for it does appear by the Verdi£l,
that he was before in Cuftody for Felony ; and on the
other Hand it does not appear, that he was ever in
Cuftody, and the Court will not (indeed it cannot
well) intend that this Palmer was in Cuftody for any
other Caufe than that mentioned in the fpecial Ver-
dia

Another Obje£i:ion was, that it is not found by the
fpecial Verdift that Burridge, the Prifoner at the Bar^
knew William Palmer was committed for Felony, or had
been convicted of Felony, at the Time when he aflifted
Palmer to efcape.

Vol. III. 6 C To

4^6 De Term. S. Michaelis, 173^.

Harbouring rp^ which it mav be anfwered, that as Palmer had

a Perlon out- • r\ r

lawedforFe- been coDvitted of Felony at the Qiiarter-Seffions of the
iHhetmf Peace held for the fame County of Somerfct, all of
County, that County are prefumed to have Notice of it ;
makeanAc- othervvife, had the Convi£lion been in another County;
ceflary to the ^^^ jj- jg ^{-^^ ftronger iu this Cafe, for that ?almer and

Felony with- „ . , • » r i-. T

out aduai Burridge were in the lame rrilon.

Notice of

lawry. In Hules Ple^s of the Croivn^ 218. it is faid, that if

one is tried and attainted of Felony in the County of A
the Law prefumes Notice thereof in the fame County :
Wherefore, if another Perfon receives and harbours
him in the faid County, this makes the Receiver Ac-
cefTary ; fecus, if the Attainder were in another County.
And Stamford, 41. b. puts the Cafe further : If one
be outlawed for Felony in the County of A. (which is
lefs notorious than a Convi6lion upon a Trial) and at-
tainted thereon, if any Perfon receives and harbours
him, this makes the Receiver acceffary to the Felony,
upon a Prefumption that all People in the fame County-
are privy to what is done in their own County, and
to a Matter of Record there ; but that other wife it
is of an Outlawry in another County, though a Mattec
of Record.

I muft admit, that the Words of the Lord Hale,
juft after mentioning the fame Cafe, (page 218) fhew
his own Opinion to be contrary ; for his Exprefiion is,
Videtur Cognitio requifita in utroqtie Cafu, whether the Out-
lawry be in the lame or in another County [B] ; and

indeed

[B] In the Lord Hal^s Hipty of the Pleas of the Crown, publiflied
\>y Emlyn, Vol. i. 323. his Lordlhip is very particular in expreffing his
Diflike of the Opinion in Stamford, and oblervcs, that it oftentimes lies
as little in the Way of many Perfons, to know who are convided or at-
tainted of Felony or Treafon, as whetliip: ^ Man be guilty of it. And

again^

De Term. S. Michaelis, l']^^. 467

indeed this fo far leflens the Authority of thefe Cafes,
that I would not rel-l: this Point here.

But what I Infift upon is, that Burridge the Prifoner Where one
at the Bar was doincr an unlawful Aft when he affifted I'T^'^V'l

•^ ^ ail UlliawIUi

the King's Prifoner in the King's Prilon to efcape out Aa, hemuft
of it, wliereby tlis Courie of Jurtice was obifruded ; anTwe/to",'
and that, being engaged in fuch unlawful Aft, he »'i f'^e Con-
muft abide by, and be anfwerable for, all the Confe- fucirAa,"
quences ; and if a Prifoner committed for Felony ^'^°"g'' '''"=7
efcapes out of Prifon by Means of that unlawful At- be forefeen.
fiftance : this is Felony in the Perfon affiftine. Nei- ^J,"' '' ''f ma
ther will it be material that the Perlon aliiiiing the extend to in-
Efcape did not know that the Prifoner who efcaped j'^^'j.^f^^^;''
by Means of his Alliitance, was in Cuftody for Felony, uniefs there
for it is all at the Peril of him who engages in fuch ,^aiiy Tme

unlawful Aft. felonious

Intent.

In the feveral Cafes where an undefigned Death of
a Man enfues upon a Perfon's doing any Aft, the Dif-
ference is, if the Aft which the Man was doing, and
in Confequence of which the Death happens, be a
lawful Aft, then the Crime is only Chancemedley, or
a Death per Infortunium : But if the Aft be unlawful,
this is Manflaughter or Murder. Hales PI. Co. 31. And
there this further Diftinftion is taken : Suppofe I am
doing an unlawful Aft, if it be with a felonious In-
tent, and Death enfues ; then it is Murder : Whereas
if I do an unlawful Adl without a felonious Intent,
and Death follows upon it, in fuch Cafe it is but Man-
flaughter. 3 Inft. 56.

again, page 622. it feems neceflliry to make an Aecefiary after, that there
be Notice, although the Felon were attaint in the fame County ; for
Prefumption flull not make Men criminal, where the Punilhment is ca-
pital. See alfo the Lord Bardwicke's Argument poft.

2 In

468 De Term. S. MichaeliSy 1739.

In Bales PI. Co. $6. A. throws a Stone at B. which
glances and kills C. this is only Manflaiighter, by Rea-
fon there was no malicious or felonious Intent ; But
ftill, fays the Book, it is not a Death per Infortunium,
in Regard A. was doing an unlawful A£1 in flinging a
Stone at another Man. The like Difference is in KeyL
117. in 3 Infl, $6. If A. intending to fteal a Deer in
the Park of B. Ihoots at a Deer, and by a Glance of
an Arrow kills a Boy that lay hid in a Bufh ; though
A. who Ihot at the Deer knew nothing of the Boy's
lying in the Bufti, yet this is Murder. And In the
fame Book it is fald by the Lord Coke, if a Man flioots
at a Cock or a Hen in another Man's Yard, and by
Mifchance kills a Man, this is Murder, becaufe the A£1
was unlawful.

There is indeed a Remark made on this laft Cafe in
that of the King and Plummer, in Keyl. Rep. 1 1 6.
where the Lord Chief Juftice Holt fays, that to make
it Murder where one ftiooting at an Hen in another's
Yard kills a Man, there muft be a felonious Intent to
fteal the Hen, («) elfe, according to the Lord Holt,
the Cafe is not maintainable, nor warranted by the
Books cited in the Margin. However, fo far will be
admitted (which is all I contend for) that if A. fhoots
at a Hen in another Man's Yard, (which muft be an
unlawful A£1:, as it is againft Law to deftroy another's
Property) if Death enfues thereupon, it is [at leaft]
Manflaughter. To apply then theie Authorities to the
prefent Cafe :

(«) See this fame Diftinftion taken by the Lord Chief Juftice A7wf ,
in the Trial of Coke and JVoodburn, for Disfiguring Ed-ward Crifpe, Efqv
State Trials, Vol. 6. 222.

De Term. S. Michaelis, 1739. 469

It was as unlawful an A£l in Burridge the Prifonet
at the Bar, to aflift his Fellow Prifoner Palmer to efcape
out of Prifon, as it would be in the Cafes I have cited,
to fling a Stone at another, or to Ihoot at a Deer in
another's Park, or at an Hen in another's Yard ; and as
in all thefe Cafes, the Killing of a Perfon, though un-
defignedly, yet being in Gonfequence of unlawful a£Is
which the Parties were doing, would make the fame
Felony or Manflaughter, (and this notwithftanding he
that Ihot at the Deer or Hen fhould know nothing of
the Boy's lying in the Bufli, or of the Man's being
in the Way) : So in the principal Cafe, the Efcape
of Palmer out of Prifon who was in Cuftody for Fe-
lony, being the Gonfequence of Burridge^ unlawful
AfTiftance, makes it Felony in Burridge, even though
it fhould be fuppofed that he [_Burridge^ did not know
his Fellow Prifoner Palmer, whom he allifted to eicape^
was in Cuftody for Felony.

I would only mention one Cafe more upon this
Head, which feems almoft in Point, and as great an
Authority as can well be produced, being at an AlTembly
of all the Judges of England^ and containing the Refo-
lution of ten of the Judges feriatim. I mean Ben/lead's
Cafe in Cro. Car. 583. (16 Car. i .) which Cafe was many
Years afterwards cited and allowed to be Law, at an
Aflembly alfo of all the then Judges of England^ excepc
the Chief Juftice of the Common Pleas, that Place
being at that Time vacant by the Promotion of the
Lord Chief Juftice Bridgman to be Keeper of the Great
Seal; and this is in Keyl.-j-j. Limerick's Cafe, where the
Opinion of the Judges was in thefe Words: " That ^ '"^j/^Jf °
" the Breaking of a Prifon wherein Traitors are in wherein
" Durance, and cauiing them to efcape, is Treafon, i„ Durance,

and caufing
them to efcape, is Treafon, though the Parties did not know any Traitors were tUere,

Vol. III. 5 D !' though

470 De Term. S, MichaeliSy 17 3<;'.

" though the Parties did not know that any Traitors

*' were there. Alfo to break a Prifon whereby Felons

*' efcape, this is Felony, though the Prllon-Breaker

** doth rot know them to be in Prifon for fuch Of-

" fence."

It is true, in this Cafe thus folemnly refolved, there
was a Breaking of a Prifon fuppofed, which is not in
the principal Cafe. But that makes no Difference with
Regaid to this Obje61:ion of the fcienter, whether the
Party affifting, tfc. knew that the Prifoner whom he
aflilied was in Cuftody for Felony, or not. It might
have been the Fail on which that Refolution in Ben-
fieacts Cafe is grounded, (and it does not appear that
the Breakers of the Prifon knew the contrary) that at:
the Time when the Prifon was broke, there might be
no Prifoners there but for Debt ; and if fo, the Break-
ing of the Prifon had neither been Treafon nor Felony
by Reafon of the Statute de Frangentibus Prifonam,
I Ed. 2. Stat. 2. Neverthelefs, though the Breakers of
the Prifon might really know nothing of any Traitors
or Felons being then in Prifon, yet this, according to
that folemn Determination, was no Excufe to them,
nor prevented their Incurring the Crime of Felony,
where by that Means Felons efcaped, nor even of the
Crime of Treafon, where Traitors thus efcaped.

And if this be fo, by the fame Reafon the Ignorance
of Burridge, the Prifoner at the Bar, that his Fellow
Prifoner Palmer was in Cuilody for Felony, can be no
Excufe to him : For in each of thcfe Cafes, it feems,
the Offenders were doing an unlawful A£1 ; and they
muft abide by all the Confequences of it, even Confe-
quences that rendered them guilty of the highell
Crime, and fubjefled them to the greateft Punilhment
known to our Law, that for High Treafon.

I And

De Term. S. Michaelis, 175^. 471

And now I come to the laft Objeftion, which (as 1
obferved) feemed to ftick with the Court, namely,
that BurrUge the Prifoncr at the Bar is not indi£led for
Breaking the Prifon, nor for Refcuing his Fellow Pri*
foner Palmer ; but for ailiiting him to efcape, which is
faid to be no more, than being AcceiTary after the Fa£t
to the Felony of Sheep-Stealing, which Palmer was con-
victed of J and if fo, the Indi£lment is faid to be
wrong ; for that Burridge ought to be indi£led as Ac-
ceflary after the Fa6l to Palmers Felony, and not as a
Principal Felon,

But I apprehend, Firfl, That Burridge, in aflifting
Palmer who was in Cuftody for Felony to efcape, was '
himfelf guilty of Felony, as a Principal, and not an
Acceflary only. In the next Place, fuppofing that
Point to be againft me, and that Burridge be no more
than an Acceffary after the Fa61:, for having aflifted
Palmer^ in Cuftody for Felony, to efcape out of Prifon ;
yet ftill, 1 think, the Indidment is good, in Regard
Burridge is indi£led for Aiding and Affifting his Fellow
Prifoner Palmer, then convi£l;ed of Felony, to efcape
out of Prifon ; and if fuch Aiding and Aflifting does
make Burridge AcceiTary, then he is indifted as fuch,
and there is no Need of mentioning the Word Accejfary
in the IndiClment.

Firfij I take it, that Burridge s allifting Palmer, then
in Cuftody for Felony, to efcape out of Prifon, was Fe-
lony in Burridge, who thereby became a Principal Fe-
lon, and not an Acceffary only ; and that this Aififting
of a Felon to efcape out of Prifon when in the Hands
of Juftice, and in Cultody of the Law, is (as 1 may
call it) a Subjlantive Felony.

472- J^^ Term. S. Michae/is, ivj^;*.

In 2 In ft. 589. it Is fald, that all Prlfons are the
King's Prifons ; and though divers Lords of Liberties
and others may have the Guftody thereof, yet ftill
they are the King's Prifons, and as they are for the
publick Good, abfolutely necelTary in order to keep
Malefa£lors in fafe Guftody until their Trial, and if
convifled, until they receive their Punifliment ; there-
fore it is faid, Interefl Rei Vublicie quod carceres fint in
tuto. Where a Man for any Gapital Offence is com-
mitted to Prifon, he is prefumed to be in Sdva as well
as Ar^a Cuflodia ; and it is upon this Prefumption of his
being in fafe Guftody, that his Friends are permitted
by Law to comfort him, and to fupply him with
Money, ^c. when in Prifon. But to do this before
Imprifonment, is fo far unlawful, as to render even his
neareft Relations (his Wife only excepted) AccefTary
after the Fa(9: in Gafe of Felony, and Principals in
Sd?t"cim- ^^^^ of Treafon where there are no Acceftaries. So
mon Law, great Regard has been ftiewn for the Safety of thefc
PrTfon"tho' P^'i^ons, that originally and at Common Law, if a
byoneim- Prlfouer broke Prilon, though he was imprifoned only
Fy fo"a Debt ^^r a Debt or Trefpafs, and not for Felony, yet it was
orTrefpafs, Felouy for fuch Prifoner to break Prifon. Piilt. dc
hult\L°hl\-'P^ce 347. ^. 2 Inft. ubi [iipra.

tered by the

Statute of n 1 • 1 1

I Ed. 2. I mult admit, that the Statute de Frangentihus Vrijonam

Stat. 2. ^taken Notice of above) alters the Law in that Refpeft,
by providing, tliat a Prifoner who breaks Prifon, Ihall
not incur the Guilt of Felony, unlefs he be committed
for Felony, and in fuch Gafe his Breaking Prifon is by
that Statute declared to be Felony. I'here indeed the
Prifoner breaking Prifon, though never convi6led of
the Grime for which he was committed, yet may be
tried for the Felony in Breaking the Prifon, the very
Breaking of the Prifon of itfelf amounting to Felony.
Whereiji, by the way, it is obfervable, that by the
^• Letter

De Term. S. Michae/is, 173^. 473

Letter of this Statute, only the Prifoner breaking Prifon
is mentioned ; and yet, the better to obviate the Mil-
chief intended to be remedied, the Aft, though a pe-
nal one, is by an equitable Conftru6lion extended to a
Stranger brealiing the Prifon; and therefore in Vuh. de
Pace, 147. h. PI. 2. it is faid, if a Stranger breaks Pri-
fon where one is committed for Felony, this is Fe-
lony ; for at Common Law it was as much a Felony
in a third Perfon to break Prifon, as in the Prifoner
himfelf; and if a Stranger breaks the Prifon, in order if a Stranger
to help a Prifoner committed for Felony to efcape, who fon,bywhich
dot:s efcape accordinely, this is Felony not only in^eansaPri-

loncr com~

the Stranger that broke the Prilon, but alfo in the mittedforFe-
Prifoner that efcapes by Means of this Breach, as he '.°".>' ^.'^-^p^s*
conlents to the Breach of the Prilon by takmg Ad- not only in
vantage of it. f„f ''-f"

Prifoneralfo.

I admit indeed, that in the principal Cafe here is
no Breach of Prifon : But, ftili the Aflifting of the
Prifoner to efcape out of Prifon, by what Means foever
it is effefted, is alike mifchievous, and an equal Ob-
ftru£lion to the Courfe of Juftice ; neverthelels, for-
afmuch as the Law, in the Cale of a Breach of a
Prifon, depends upon the Words of the A£1 De fran'
gentibus Prifonam, I would chufe to refemble the pre-
lent Cafe of affitting a Felon to efcape out of Prifon,
to that of refcuing a Felon, both thefe being Offences
at Common Law.

The Lord Hale, PL Cor. i 1 6. fays, that to refcue a
Perfon under an Arreft for Felony is Felony ; and that
in like Manner, the Refcuing a Perfon under an Arrelt
for Treafon is Treafon : And if this be fo, a pari, or
rather a fortiori, to alhft a Man that is in Prifon for
Felony to efcape out of Prifon, is Felony j and to af-
fift one imprifoned for Treafon to efcape, muft be
Treafon. The Law fays, that the Perfon affixing one

Vol. III. 5 E in

474 D^ Term. S. Michae/is, I73<;'.

in Prlfon for Felony to efcape, contrails the fame Guilt
upon himfelf, as the Prifoner that was affifted to efcape
our of Prifon was committed for ; fo that, to deter all
Perfons from being any way inftrumental in the Efcapes
of thefe capital Offenders, with a great Exa£lnefs of
juftice, the Law communicates the Crime of the Of-
fender to the Perfon aflifting hin\ to efcape.

Now I conceive, that this Aflifting of a Felon to

efcape out of Prifon renders the Afliftant a principal

Felon, and not an Acceffary only to the Felon efca-

ping. In Stamford, PL Cor. 43. ^. and Pulton de Pace,

144. Pi. 20. there is this Cafe, which feems material

Refcumg a fo the principal one : If one does refcue a Man ar-

for Felony^' rcfted or Committed for Felony, he is a principal Fe-

makes the ly^^ and not an Acceffary only ; and (according to

prindpaiFe- thefe Authors) the Reafon is, for that this is a new

a"' (?' ^" Felony of itfelf, though depending on the former.

only.

It feems plain, that where the Lord Hale, in Pi. Cor,
1 1 6. fays, that the Refcuing a Felon under an Arreft
for Felony is Felony, by the Words under m Jrre/l
is meant a Prifon ; for every Arreft is an Imprifon-
ment; Hale, PI. Cor. 107. And if the Refcue of a Felon
when in Prifon, makes the Refcuer a principal Felon,
and guilty of a frefti and diftin6l Felony ; then by the
fame Reafon, a Perfon aflifting one in Cuftody for
Felony to efcape out of Prifon, is himfelf a principal
diftinil Felon, and not an Acceffary only.

Befides, in this Cafe Burridge, the Prifoner at the
Bar, is fo far from being an Acceffary, that he himfelf
is capable of having an Acceffary : As if A. had hired
Burridge to affift Palmer, then in Cuftody for Felony,
to efcape out of Prifon, and accordingly Burridge had
aflifted him for that Purpofe ; then A. would have been
the Acceffary in hiring Burridge to aftift Palmer the Fe-
I Ion

De Term. S. Michaelis, 1759. 479

Ion to efcape, and Burridge the Prifoner, by whofe Af-
fiftance Palmer had efcaped, would have been the Prin-
cipal : Bur if Burridge were in this Cafe but an Accef-
fary himfelf, as is contended on the other Side, (which
mull be meant of an AccefTary after the Facl, for ic
cannot be pretended that he is an Acceffary before the
Fa£l) I fay, if Burridge himfelf be but an Acceffary,
then he cannot have an AccelTary, for there cannot be
an Acceffary to an Acceffary after the Fad.

But here I am fenfible it may be objected, that there
may be an Acceffary to an Acceifary in the Cafe of a
Felony; and fo is Hale, PL Cor. 219. Stamford, 43. ^.
Pult. 144. PI. 19.

To which I anfwer, that muft be with this Diffe- There may
rence ; that there may be an Acceffary to an Acceffary ceiw to an
i;efore the Fail:, but there cannot be an Acceffary to an Acceflkry
Acceffary after the Fait; and this is the Diltin£lion Faa, butnot
taken in %«L Cent' 29. cap. ^6. as for Inttance : if A*"^""^"^:

,.p / 1 I 1-- celTary after

advile and procure J9. to murder C. A. by this is Ac- the Fact.
cefTary before the Fa£l, and though but Acceffary, yet
if D. receives and conceals him from Juftice, D. hereby
becomes an Acceffary, though only to an AccefTary.

To carry this Cafe a little further : Suppofe B. that
committed the Murder, is afterwards received and
concealed from Juftice by J. S. who thereby becomes
Acceffary after the Faft, and then J. N. receives and
conceals from Juftice this J. S. the Acceffary ; this
would not make J. N. the Receiver of the Acceffary
after the Fa£l:, to be himfelf an Acceffary ; the Reafon
of which is, for that the Crime of the Acceftary before An Accef-
the Fa£l is much greater, and of a deeper Dye, than [j;7Fa'a "^"^
that of the Acceftary after the Fa£l : The Acceffary guilty of a

much greater
Crime than an Acceffary after the Fa6l.

before

47<5 De Term. S. Michadls, 173^.

before the Fa£l (be it in Murder or other Felony) ad-
vites and incites the other Perlbn to commit the Crime,
and being the firft Mover) is in a great Meafure guilty
hlmfelf thereof; whereas the AccefTary after the Fa£l:
may be, and often is, perfectly innocent of the Crime,
knows nothing of it until committed; only after it is
over, receives the Perfon that did the Fa£l; in which
Cafe common Compaflion, Good-nature and Humanity
may be in fome Meafure Advocates for fuch an Offen-
der, fo as to mitigate his Crime.

But what can be faid in Favour of the AccefTary
before the P'adl, who in cool Blood advifes and fets on
another to commit Murder, or other Felony ? The A6t
of Parliament {o) with great Juftice takes away Clergy
from the AccefHiry before the Fa61:, but does not take
it away from the AccefTary after the Fa6l.

Again : As Burridge^ the Prifoner at the Bar, was in
the fame Houfe, and Fellow Prifoner with P.ilmer, and
is found by the Verdict a£lually to have ailiil;ed Pal'
mer in his Efcape out of Prifon, Burridge mull: be in-
tended to have been prefent with Palmer ^ while he was
No Cafe aflilling him to eicape. And I do not know a iingle
prefent Tnd ^^^^ ^" ^^^ L^^^'' ^^'^lere, if onc be prefent and aflilt-
afliftmg in ing in the Commillion of a Crime, the Perfon prefent
fimi oTT ' ^'^'^^^ ^^ o"^y ^^ AccefTary. Cafes there are, where
Crime, is one who is abfent at the Time of committing the

held onlv s.n ^r^ . . _ i j j t^ • • i •

Accefiar\ ; ^-time, may yet m Law be deemed a Prmcipal, as in

wholsabL ^^^-^'^ ^^^'^' 4 ^''^' 44' 4^- ^^^^'-^ f*^- ^°^' 2'^- 3 ^#
at the Time I 58. Ouc laid Poifon with an Intent to poiion another
of commit- pej-fon, and was abfent when that other Perion took the

ting tiie _ , '

Crime may Poilon, and was killed; there the Perfon laying the
ll^_ ^^""'- Poifon

{0) The liime as to Accefraries before the Faft in Petty Treafon,
Robbery in any Dwclling-houfe, or in or near the Highway, or the
Burning any Dwclling-houfe, or Barn having Corn in it. See 4th and
5th of Philip and Man; chap. 4. Jitl. i.

De Term. S. Michaelis, 1739. 477

Poifon was Principal in the Murder; but I am at a
Lofs for an Inftance, where any one prefent and af-
lifting was only held AccelTary to the Felony. If one
be prefent at the Killing of a Man, and comes there
for that Purpofe, but does no Aft, being only ready
to aflift in the Killing ; this makes him a Principal.
IMes PI. Cor. 215, 216. Puk. 141. a. PI. 4. And if
being prefent, and only ready to aid, will make one a
Principal, furely this Cafe is ftronger, where Burridge
was not only ready to aid, but aftually did aid and
affift.

But fuppofe for Argument's Sake, that Burridge was
rot a principal Felon ; that he was no more than an
AccelTary to Palmer, who was in Prifon convifted of
Felony for Stealing a Sheep ; and that Burridge was Ac-
celTary to him after the Fail, in aflifting him to cfcape
out of Prifon ; yet ftill the Indi£lment agalnft Bur-
ridge is right, and well maintained by the fpecial Ver-
dl£l: : He is indl£led for having aided and alTifted Palmer
convi£led of Felony to efcape out of Prifon ; and the
fpecial Verdi£l finds this Part of the F'aft to be fo;
confequently, if aiding and affifting a Felon to efcape
out of Prifon does amount to make one AccefTary,
then is Burridge both indlfted and found Guilty as
fuch ; and there is not any Neceffity of inferting the in an India-
Word Acceifary in the Indldment, the fame being noXis'ln"'
Technical Word, no Term of Art, like the Word Bur- Acceffary,
glaritir for Burglary, Proditorii for Treafon, or Rapuit ""ferJng the
for a Rape : It may with equal Reafon be infifted, that Word A«/-
the Word Principal is a Technical Term, and that where
the Faft is, that one is a Principal in a Murder, or
other Felony, he muft be indlfted as a Principal, as
that in the prefent Cafe Burridge, the Prifoner at the
Bar, ought to be named or indi6led as AccelTary ; but
this is not fo, neither are there any Precedents to war-
rant it.

Vol. III. 6 F In

478 De Term. S. Michaelis, 173^.

In Tremains PI. Co. 288. there is an Indi£lmenc
againft one Stone for robbing one Plimpton on the High-
way, and taking from him 30/. and the fame Indict-
ment is againft Edtvard Ivy, for that the faid Ivy, be-
fore the faid Robbery, did incite, abet and procure the
faid Stone to commit the faid Robbery, and that after
the faid Robbery committed, and after the faid Ivy
knew that the faid Stone had committed the faid Rob-
bery, he [hy^ did felonioiifly receive, entertain and
comfort him. Stone and Ivy were found Guilty upon
this IndiClmenr, and were attainted, and afterwards
pardoned j and though it appears that Ry the Accef-
fary brought Error to reverfe this Attainder, and af-
figned Errors ; and though it alfo appears by the In-
di£lment and Verdi£l, that Ivy was Acceflary both be-
fore and after committing the Robbery ; ftill the Word
Accejfary is not fo much as once mentioned in the
Indi£lment, nor is this affigned as one of the Errors,
as moft certainly it would have been, if it had been
thought to have been an Error. This I take to be
as ftrong a Precedent, as well can be of this Na-
ture.

There is another Precedent in the fame Book, (33)
The King verfus Ringrofe, where it appears, one was
prefent and aflTifted in the Felony, which in Law
makes a Principal ; and yet, as in the former Prece-
dent the Word Acceffary, fo here the Word Principal
was not mentioned in the lndi£lment. So in Serjeant
Baxpkins's Pi Co. 2d Part, 315. it is faid, not to feem
necefTary in any Indi£lment or Appeal againft any one
as Acceilary before the Fad, to fet forth the fpecial
Manner by which he abetted, iD'c. but only to charge ge-
nerally, that the Prifoner Felonici abettavit, incitavit ^
procuravit, iffc. agreeably to which, and in the like ge-
neral Words, it is faid in our Indiflment, that the Pri-

' I foner

De Term. S. Michaelis, 1739. 479

foner at the Bar Felonice did aid and affift Palmer who
was convided of Felony, to efcape out of Prifon.

From whence I would infer, that if it were admit-
ted, that in this Cafe Burridge^ the Prifoner at the Bar,
were no more than an Acceffary after the Fa6l to Palmer^
by having affifted him to efcape out of Prifon when in
Cuftody for Felony ; yet the Indi£lment is good ; and
that it is fufficient for it to charge the Fa6l; and if
Aiding and AlTifting a Felon to efcape out of Prifon
makes one an AccelTary, then Burridge is indi£led and
convi£led as fuch, and there is no Need of mention-
ing the Word Accejfary in the Indidmenr.

There is only one Thing more remains, which,
though it does not now immediately and diredly re-
late to the Cafe, yet Imce it may in the Event happen
to have Reference thereto, fhould the other Side pre-
vail in bringing off the Prifoner, by Realon of any
Infufficiency in this Indictment ; and as the Court
was pleafed to ftir this Point, and to mention it to the
Bar, with an Intention (I prefume) that it fhould be
fpoke to, I ftiall therefore endeavour to do fo in a very
few Words.

The Point is this ; Suppofe, for Argument's Sake,
that this Indiftment of Burridge, the Prifoner at the
Bar, is in any Refpe£l: infufficient, that he ought to
have been indi6led as Accejfary after the Faft, and by
the Word Accejfary ; or, to have been indi£led for a
Refcous, inftead of Aiding and Abetting : Suppofe, (I
lay) that for this or any other Infufficiency in the In-
dictment, Burridge fhould have the Opinion of the Court
in his Favour, what would the Confequence of it be ?

And I take it to be very plain, to be a fettled Point
of Law, that the Prifoner would be liable to be in-
dited

480 De Term. S. Michaelis, 1739.

di£led and tried over again ; and then probably the

like Evidence whereon he was convi£led before, will

convi£l him again : For though the Rule be, that a

Man's Life ftiall not be put in Jeopardy twice for the

fame Crime, yet this holds, and is applicable only,

where the Indi6lment upon which the Prifoner is tried.

Wherever Js a fuffic'ient Indiftment ; for admitting that to be in-

by Mran^of fi-ifficient, or to contain any Miftake, by Reafon where-

an infuffici. ^^ j-j^g Prifoucr cfcapes, in fuch Cafes, as all the Books

ent India- i r. t • r • ■ »

ment, as his agree, the Priloner is not Legitimo modo acqmetatus,

S^erer^ln"^' ^"^ then, in the Eye of the Law, his Life was not in

Jeopardy, he Jeopardy. The Court ex Officio ought, for the Bene-

ipbtlJa!^'^ of the Prifoner, to take Notice of the Miftake;

ed. and therefore in thefe Cafes the Prifoner may be again

indi£led, though for the fame Offence. Many Cafes

prove this ; but Faux's Cafe, mentioned before, is very

full and exprefs to the Purpofe ; it was thus : Faux

was indifted for Murdering one Richard Ridley by poi-

foning him, perfuading him to take a certain Drink

mixed with a Poifon railed Cantharides, in order to

make him have a Child by his Wife. The Jury found

a fpecial Verdi£l, (vi^i.) that Ridley was poifoned by

this Poifon, but that Faux, the Party indi^led for this

Murder, was not prcfent when Ridley took the Poifon.

But it appeared to the Court, that the Indiftment

was infufficient, it not being alleged with fufficienc

Certainty, that the Party murdered took the Poifon,

therefore the Court gave Judgment for Faux the Party

indi6led, ^lod eat fine die.

Whereupon Faux was indi£led a fecond Time for
the fame Murder and the Poifoning ot this Ridley,, to
which he pleaded, that he was auterfoits indifted, tried
and acquitted of this Murder, and pleaded over Not
guilty to the Murder. But it being evident, that the
former Indi6lment was defeftive, in not having charged
with fufficient Certainty, that Ridley, the Perfon poi-
1 foned.

De Term. S. Michaelis, 1759. 481

foned, did receive and drink this Poilon ; the Court
determined, that Vaux might again be indi£led for the
fame Fa6l for the Realons above mentioned ; and upon
this new Indiilment Vaux was again tried, convidled
and a6lually hanged. So that according to this exprefs
Refolution, if the Indidment againit Burridge be in-
fufficient (as I hope it is not) he may be indi£led over
again for the iame Offence ; and if it were fo that he
ought not to be indidled as a Principal Felon, but as
an Acceflary only ; even in that Gate it is determined
in Keyl. Rep. 16. That if a Man be indifted as a Prin-
cipal Felon and acquitted, ftill he may be indi6led
again as AccefTary after the Fa£l, but cannot be in-
di£led as AccefTary before the Fa£l;, becaufe with Re-
gard to an Acceflary before the Fa£l, who advifes and
procures the doing of it ; this is as his Fa61: ; But in
the principal Gale, it is plain that Burridge was not
Acceflary before the Fa6l, to Palmers Felony in Stealing
the Sheep, but only Acceflliry after the Faft. It is
equally plain, that if this Indi6lment ought to have
been againft Burridge for a Refcue, and if- he Ihould
evade, for that Reafon, the preient Prolecution, (for
which there feems no Golour) ftill he would be liable
to be indiiSled anew for that Refcue, it being a dif-
ferent Offence from what is charged in this Indidment,
and confequently not pleadable in Bar. From all
which it muft be evident, how little it will avail
Burridge to get ofi upon an Infufiiciency in this In-
di^lment, feeing he plainly will neverthelefs be liable
to be indi^led over again.

To Sum up all in a Word or two : I hope it now
appears that Palmer, when he was aflifted by Burridge to
efcape out of Prifon, (the faid Palmer being under Sen-
tence of Tranfportation for feven Years) was then a
Felon, and continued fuch until his Tranfportation
and Service for feven Years : That there are no Words
. Vol. III. 6 G in

48z De Term. S. M'nhaelis, 173^.

in the 4 Geo. i . or any other Statute, intltllng Palmer
to a Statute Pardon, until he has undergone this Tranf-
portation and Service for (even Years : That this is
grounded on the Reafon of the Thing, on the Autho-
rities I have cited, and upon the expreis Words of the
A61 of 4 Geo. I . and that in Confequence thereof, if
Palmer was, and continued a Felon, when Burridge af-
fifted him to efcape ; this was Felony in Burridge to
give fuch Alliftance. As to the feveral Exceptions to
the Indi£lment, I hope I have anfwered them all, and
have likewife ftiewn, of what fmall Avail it will be to
the Prifoner, Qiould any of thefe Exceptions fucceed ;
fince the Confequence of fuch Succefs would be only a
frefh Indi£lment for a Crime notorious to all the
Country ; and of which the fame Evidence which was
given before, would again convi£l: the Prifoner ; fo
that it would only delay this Tranfportation beyond
Sea for feven Years, which the fooner it is begun, will
be the fooner ended. But what I humbly infift on is,
that the Point upon the fpecial Verdift is plainly with
the Crown ; that the Indiftment is fufficient notwith-
ftanding any of the Exceptions ; and therefore pray
Judgment for the King, that the Prifoner at the Bar
may be ordered to be tranfported for feven Years, ac-
cording to the Statute of 4 Geo. i.

Refoiution On the lixth of February^ 1 7 3 4> ^^^ Lord Hardtpich,
oftbcCourt.Loj.d Chief Juflice of the King's Bench, delivered the
Refoiution of the Court in thefe Words :

In the Argument of this Cafe many ObjefHons have

been made by the Counfel for the Priloner, which

going principally to the Indiftment, ought firft to be

confidered ; for if the Indiflment doth not contain a

TheObjec- fufficient Charge, the Verdift cannot fupply it. Thofe

c'ibieto two Obje6lions may be reduced to, and confidered under,

Queftions. two Queilious ; FirJ}y What Crime of Felony is charged

I upon

De.Term. S. Michaelis, 17 JS*. 485

upon the Prlfoner Thomas Biirridge by this Indi£l-
ment ? Secondly, Whether it be well charged, fo that
the Court can give Judgment upon it againit the Pri-
foner ?

As to the firfl: Queftion, one may Conjeftiire, and ^'"^ ?E"e"l
it is but Conjefture, that this Indi£lment was framed '°"*
and intended to be grounded upon the Statute of
6 Geo. I. cap. 23. fe^. 5. which makes it Felony with-
out Benefit of Clergy to aid or aflift Felons convi6l to
make their Efcape out of the Cuftody of fuch Perfons
to whom they have been delivered in order to be
tranfported ; but it is fo plain that the Fa6l laid is not
brought within the material Provifions of that Law,
that it was exprefly admitted by the Counfel for the
King not to be maintainable on this Foot.

However, it has been inlifted, that wilfully aiding
and aflifting a Felon convift, adjudged to be tranf-
ported, and committed to Gaol, there to remain till
he {hall be tranfported, to efcape out of fuch Gaol,
is by Law, Felony ; and it has been put two Ways,
Firfl, As a new Principal Felony, fubltantive and di-
ftin£l: from the Felony of William Palmer, the Felon
convict, who lay under the Judgment of Tranfporta-
tion ; or Secondly, As Acceflary to Palmers Felony
after the Fa£l.

Firfl, It has been endeavoured to prove this Offence
to be a new Principal Felony diftin£l from Palmers
Crime, as a Breach of the Prifon, and letting a Felon
therein go at large ; or as a Refcue of a Perfon arrefted
and in Cuftody for Felony, [both] which were Felony
at Common Law.

But

484 ^^ Term. S, Michaelis, 1759-

In an India- gyf: there is no Colour to fupport this Indi£lment
Offence of as for an OfFence of breaking the Prifon, becaufe no
Breaking a g^ga^h of it is laid, which according to all the Books

rnfon, ne- rr \\ ^ • r ' i \

cefTary to is in that Gale neceilary. All that is laid here is,
sL'kint"'' that the Prifoner affifted ?almer to Efcape, by Mear.s
whereof he did Eicape, which might be either with
the Confent of the Gaoler, or by going out of the
Prifon, the Doors being open ; neither of which would
be a Principal Felony in the Prifoner. So is Stamford
31. ^. 2 Infl. 589, 592. in my Lord Cokes Gom-
mentary on the Statute de Frangentihus Prifonam, and
Hales PL Co. io8. in all which Gafes it is agreed, that
an a6lual Breaking muft be alleged.

mem for a' We are alfo of Opinion, that there is no better
Refcue of a Grouud to fupport this Indi£lment as for a Refcue of
the Word Palmer. I believe no Man ever faw, either in Autho-
Refcuffu, or J.JJ.Y Praftice or Precedent, an Indiftment for a Refcue

fomething J ^ 1/-7' 1 -ii ni

equivalent without the Word ReJcuJJit ; and certainly that mult be

beufed'"'to charged, or fomething equivalent to it, to fhew that

fhew it' was it was forciblc, and againft the Will of the Officer

aSnft''the"^vho had the Prifouer in his Cuifody. So is Dier

Will of the 1^4.^. IVefl's Precedents, Tk. IndiSiment, JeSl. 176,

^^"' 181. But notwithitanding any Thing charged in this

Indidment, it might be a voluntary Efcape by Gonfenc

of the Gaoler, as I faid before, and confequently nq

Refcue.

But to this it was faid, that to affift a Felon to
efcape out of Prifon, in any Manner or Shape, is e-
qually Mifchievous, and tending to obil:ru6l the Juftice
of the Kingdom ; and the Rule is, Intereft Rei Piiblic<Q
at carceres fiat in tuto.

This

De Term. S. Michaelis, IT^^. 489

This is very true ; but the Inference drawn from ic
is not right ; for this will not warrant us to invent or
create new Felonies ; we muft take them as the Law
of the Land has made them, and if that is defeftive,
it belongs to the Leglllature, whofe proper Power it is
Jus dare, and not to the Judges, whofe Office is only
Jus dicere, to fupply that Defeft.

Secondly, The other Method taken to prove the Of-
fence charged in this Indi£lment to be Felony, was
by fhewing that the Priioner at the Bar, by affifting
Palmer to efcape, became AccefTary to Palmers Felony
after the Fa£l.

And we are all of Opinion, that a Man may be-^"^'"^^^

rr \ r n i r ^" Acceliarv

come an Acceilary to a Felony after the Fact, by al- to a t^eiony
lilting a Felon convifl:, being in Cuftody under a Sen-p^^c{ b'?af-
tence of Tranfportation, to efcape out of Priion ; fifting a Fc-
provided it be fuch an AlTiilance as doth in Law a-i""^""',' '
mount to a Receiving, Harbouring or Comforting Cuftody un-

r \_ -r^ 1 •J'-'r Sentence

inch telon. of Tranfpor-

tation, to e-

Indeed, before the Statute of i Ann<c, Jeff. 2. cap. 9. Prifon.
if the Principal was convifted only of a Clergyable
Felony, and had his Clergy allowed ; or flood Mute,
or peremptorily challenged above the Number of
twenty Jurors, the Acceffary could not be arraigned;
by this Means AccelTaries to very flagrant Crimes fre-
quently avoided all Manner of Punlfhment ; and
therefore the A61 provides, that in all thole Cafes it
fhall be lawful to proceed againif any Acceflary, either
before or after the Fail, in the fame Manner as it
fuch Principal Felon had been attainted thereof, not-
withftanding any fuch Principal Felon Ihall be admitted
to the Benefit of his Clergy, pardoned, or otherwile
delivered before Attainder.

Vol. III. 6 H The

486 De Term. S. Michaelis, 173^.

The great Objection to this, and which has been
much laboured by the Counfel for the Prifoner, is,
that at the Time of this Fa£l committed, Palmer was
no Felon, and confequently there could be no Accef-
fary where there was no Principal ; for that the Al-
lowance of the Benefit of the Statute, and Sentence
of Tranfportation given thereupon, do, without more,
in Judgment of Law, amount to a Pardon.

This Objeftion opened the way to a very wide
Field of Argument concerning the EfFe£l of the Al-
lowance of Clergy, without a£lual Burning in the
Hand, before the Statute of 4 Geo. i . cap. 11. for Tranf-
portation of Felons ; and what Alteration has been
made by that Statute in the Law upon this Head.

I fhall not fpend the Time of the Court by entring
into a Detail of this Matter, as it flood before the Sta-
tute of ^Geo. I. becaufe it will not dire£lly lead to
the Judgment to be given in the prefent Cafe ; but I
Ihall choofe to refer you to three Cafes, in which, be-
ing taken together, you will find all the Hiftory and
Learning of the Law on this Topick fully Hated by
infinitely abler Hands ; by my Lord Hoban in the Cafe
of Searl verfus Williams., p. 288. by my Lord Chief
Juftice Holt in the Cafe of the Appeal between Arm"
flrong and Lijle, publifhed at the End of Kelynge 93.
and by my Lord Chief Juftice Treby., with admirable
Clearnefs, in the Trial of the Earl of Warwick for the
Murder of Mr. Coote., in the fourth Volume of the
State Trials, p. 383. The Subject has been fo much
exhaufted by thefe eminent Sages of the Law, that,
without repeating their Reafonings, I Ihall only make
ufe of the Conclufion from them in Anfwer to this
Objection, and that is, that by the true Conftruclion
I as

De Term. S, Michae/is, 173^. 487

as well as the Words of the Statute of i8 Elk. cap. 7.^^ i8£/;2,

*■ ' cob 7 HC-

which takes away Delivery to the Ordinary and Purga- tuai Burning
tion, Burninz in the Hand, as well as the Allowance of'" '^'f Hand
Clergy, was neceilary to the Priloner s Dilcharge from Allowance
the Felony, and to conftitute the Statute-Pardon (as it^JJ^^ecfL-
has been called) in all Cafes where by Law Burning ry to dif-
in the Hand ought aBiually to take Place. Therefore, Pr^^ner ^
before the Aft of 4 Geo. i. If an Offender, after Clergy ^^°^ t^eFe-
allowed, had efcaped before he had been burnt in the therefor^e" if
Hand, I hold clearly that he would ftill have remained ^'^^^^''^ 4 c^.
a Felon convift ; and a Stranger by unlawfully re- an offender
ceivin" or comfortino; him, might have become Accef- ^jf'-"'' ^.'^'.sy

• r 1 n 1 • rr I • 1 allowed, had

fary to his Felony alter the Fact. This molt plainly efcaped be-
appears by the Refolution of the Judges delivered by be'/„*'bu''rm
my Lord Chief Julfice Trehy in my Lord ft'<irwif A's in the Hand,
Cafe, which I have mentioned. hLrconti-

miod a Fe-
lon, and a Stranger by unlawfully receiving him, i^c. might have become Acceflary to his
Felony after the Fail.

But to this Doftrlne fome Obje<£lions were made,
drawn from the very Cafes which I have mentioned.
And firft it was obje£l:ed, that in the Cafe of Searl and
Williams, my Lord Hobart and the whole Court of
Common Pleas held, that Searl was intitled to the full
Effedf of his Statute- Pardon, though he only had Clergy
allowed, and was not burnt in the Hand.

To this I anfwer : This Refolution was very right,
becaufe he was a Clerk in holy Orders, who by the
Statute is exempted from being burnt in the Hand ;
and therefore it doth not contradict my Rule, to
which you obferve I added this Limitation, in all Cafes
where by Laxp Burning in the Hand ought actually to
take Place. Agreeably to this my Lord Hobart, juil
at the End of the Cafe, hath thefe Words : Where the
Statute faySf after Burning in the Hand according to the

Statute

488 De Term. S. Michaelis, I'j^f;.

Statute in that Behalf, " It imports where Burning ought
" to be."

id ObjeSi. That the King may Pardon the Burning,
and yet the Offender Hiall, in that Cafe, have the full
Benefit of the Difcharge.

Anjtp. This likewife is within the Conftruclion of
the Statute, and the Rule I laid down ; for, the Pardon
interpofing, it is not a Cafe, where by Law Burning
in the Hand ought to take Place.

3^ Objefi. That admitting Burning to be, in fome
Degree, necelTary to the Difcharge by the Statute, yet
it is not to be underftood of actual Burning, but only
of the Judgment ^od Cauteri^etur ; and the Judgment
of Tranfportation which had been given againft Palmer
in this Cafe, is at leaft equal to that.

Anfiv. But, as no Authority or Judicial Opinion
was cited for this, fo there is no Ground for it. It
is contrary to the Words of the Statute of 18 Eli^,
w^hich fays, after Clergy allowed and Burning in the
_ Hand^ not after being adjudged, or ordered to be burnt
in the Hand. It is contrary to the Opinion of the
Judges in the Earl of Warrpick's Cafe, and contrary to
the Form of Pleading auterfoits convi^i of Man/laughter
to an Appeal of Murder ; for there the Appellee doth
not only let forth the Judgment of Allowance of Clergy
^ Qiwd in Ura fua manu Cauteri^etur, but goes on and
Ihews the Execution of it by Burning. So is the Plea
in the Cafe oi Armflrong and Lijky Kelynge 93.

4th ObjeB. But from the Report of this Cafe of

Armfirong and Life, a further Objeftion was taken ;

for there it is allowed by my Lord Chief Juftice Holt,

2 that

De Term. S. Michaelis, 1739. 489

that, if a Man be convi6led of Manflaughter, and prays
the Benefit of his Clergy, and the Court refpite it
upon a Curia advifare vult, and remand him to Gaol,
he may plead it in Bar to an Appeal ; and yet in fiich
a Cafe there can have been no Burning., nor fo much
as a Judgment for Burning.

Anfw. This is certainly Law, and warranted by the Where, by
Cafe of Burgh verfus Holcrofi in ^ Co. 45, 46. but it oLSthe
doth in no wife impugn my Rule ; for it depends upon Court, aPri-
a particular Realon, which has no Relation to the ge- "laLi of'
neral Qiieftion, and which is exprefly given in the Re- ^^'^"'^^"g'^-
port, (vi^.) that the Delay or Doubt of the Court /Ijall Opponunky
never turn to the Prejudice of the Party. My Lord °| 'j^l^cier
Chief Juftice Holt goes further, and admits, that if a gy, or if he
Man Ihould be convided of Manflnughter, and the ^7i^"]^;;;3"^J;
Court {hould not call him to Judgment, whereby he Court {houid
would not have the Opportunity of demanding his ^rd^ontT
Clergy, which he is not to have without a Demand ; t^is, on its
or at leaft if he had demanded if, and the Court cdTndlhewi
Ihould make no Record of it, yet he might plead it, jf^^^J''"-'''
ftiewing the fpecial Matter ; becaufe it is the Delay and to the Pre/u
Default of the Court, which lliall not occafion a De- f^^^"^^']"^
triment to the Prifoner. But none of theie Cafes
prove any Thing againft the general Rule ; and it is
obvious to obferve, that they might as well be produced
to prove, that the Prayer of Clergy., or Allowance of
Clergy, is not neceflary to the Difcharge by the Statute,
as that Burning in the Hand is not fo.

Thus the Law being clear, that Burning in the Hand Alterations
was neceffary before the Making of the Adi of 4 Geo. ^^l^/r.J.
I. for Tranfportation of Felons, let us now inquire "• ^°/

•11 • 1JI1" n I raiifporta-

what Alteration has been mtroduced by this new Sta- tion of Fe-
lons, where-
by the Judgment of Tranfportation, with Regard to Perfons convidled of clergyable Felonies,
IS plainly and clearly put only in the Place of the Judgment for Burning in the Hand, not
in the Place of a(ftual Burning.

Vol. III. 6 I • tute.

turn

490 De Term. S. Michadis:, 1739.

■

rure. Upon this the Qiieftion is in fhort, whether it
has put the Judgment of Tranfportation in the Place
of a^ual Burning in the Handy or only in the Place of
the Judgment for Burning in the Hand ? If it has put
the Judgment of Traniportation in the Place oi aSlual
Burning in the Hand, then the Objeftion is right, that
Palmer was difcharged, and become no Felon ; if it has
put it only in the Place of the Judgment for Burning
in the Hand, then the Obje£lion is ill-founded, and Pal-
mer remained a Felon convifl not pardoned.

Now the Words and Intention of the Statute are
as plain as any Compoiition or Piece of Writing can
pollibly be, that the Judgment of Tranfportation is
put only in the Place of the Judgment for Burning in
the Hand; and the a^ual Tranfportation and Service in
the Plantations is put in the Place of the aSiual Burning*
The very firft Claufe in the Statute is, " That the
" Court, inftead of ordering (that is, adjudging)
*' any fuch Offenders to be burnt in the Hand, may
** order and dire£l that fuch Offenders fhall be fent, as
** foon as conveniently may be, to fome of his Majelfy's
" Colonies and Plantations in America for the Space of
feven Years ; and that that Court before whom they
were convi£led, or any fubfequent Court held at the
fame Place with like Authority as the former, fhall
have Power to convey, transfer and make over inch
Offenders, by Order of Court, to the life of any
" Perfon or Perfons who fhall contra£l; for the Per-
*' formance of fuch Tranfportation, to him or them,
*' and his and their Affigns, for fuch 1 erm of feven
" Years."

One would have thought this had been plain enough ;
but the Legiflature, in order to declare their own Mean-
ing, and put it beyond all Doubt, have added a fubfe-
quent Claule, whereby it is enabled, " That where any
1 ' " fuch

(C
(C

((

flMtfMMriM^M

De Term. S, Michaelis, 173^. 491

" fuch Offenders {hall be tranfported, and fhall have
" ferved their reipeftive Terms according to the Order of
" any ilich Court as aforefald, fuch Services Ihall have
" the Eff"61: of a Pardon to all Intents and PurpofeSj
*' as for that Crime or Crimes for which they were fo
" tranlported, and ihall have fo ferved as aforefaid."
I will forbear to comment upon this Claufe, becaule I
cannot make it clearer : One may turn and fhew a
very plain Thing in different Lights, but it is impof»
fible to make it more plain.

But to this an Obje£lion was made by the Prifoner's
Counfel, that, it being only an affirmative Claufe, with-
out any negative Words, cannot take away any Dif-
charge fuch Felon ordered to be tranfported, would
have been intitled unto without it ; and that he is ab-
folutely difcharged by the precedent Claufe in this A£1,
which takes away the Burning in the Band.

To which I anfwer, that, though I admit that a new i" what Ca-
affirmative Law, without negative Words, fhall not in cS it"""
many Cafes repeal or take away the Force of a former Circumftan-
Law fubfifting before that «ras made, and independent mativcLaw*
of it ; yet an affirmative Claufe in an Ac^l of Parlia- "^^^^^^ "^'
ment may explain and reftrain other Claufes in the Wonis, may
fame Aft of Parliament: The whole Aft muft be con- X^'^.v

IdKC it\VUy

ftrued together and intire, and when the Legiflature the Force of
have declared their own Senle, and given their own Law!""
Expofition at what Time the intended Difcharge or
Pardon Ihall take Effe£l, it is not in the Power of the
Judges to make it take Effedl fooner, and render this
Claufe wholly nugatory.

But what is the Difcharge ena£led by the former
Claufe, and how is the Burning in the Hand taken
away ? Is it taken away abfolutely, or only Jiib modo ?

Molt

492. De Term. S. Michaelis, I73S'«

■ — ' !■■■■■

Moft clearly only fub modo. Another Thing is fubfti-
tuted in the Place of it ; inflead of being ordered to
be burnt in the Hand, the Offender fljall he ordered to
be tranfported to fome of his Majefty's Plantations for
feven Years ; but that Judgment mull be carried into
Execution, as the Judgment in Lieu of which it comes
was to have been before ; and if it had flood merely
upon the Force of this firft Claufe, I fliould have
thought the Gonftru6lion would have been juft the
fame.

So much of the Debate at the Bar turned upon this
Point, that I have thought fit to fay thus much, in
order to fettle the Law upon it, and to prevent any
Mifapprehenfion that might arife from the Judgment
the Court is about to give in this Caufe, as if any
Doubt remained, whether a Man might aflift a Felon
convi£l, lying in Gaol under Sentence of Tranfporta-
tion, to break Prifon, or refcue him, or receive or har-
bour him, without incurring the Guilt of Felony.
Such a Notion going abroad might greatly weaken the
Security for the Cuftody of fuch Felons.

Second gene- But after all, the Judgment of the Court will fall

rai Queftion. yj^ jgj. j.|^g fecoud general Qiieftion, which is, whether

the Offence be well charged in this lndi£lment, fo as

that the Court can give Judgment upon it againtt the

Priloner ?

I have already fhewn, that this Indlftment cannot
be fupported as for a Felony in breaking the Prifon^ or
refcuing Palmer ; therefore nothing remains but to con-
lider, whether it has fufficiently charged this lafi Of-
fence of an Acceffary to Palmer'i Felony after the Fa£l:.

And

De Term. S. Michaelis, 1759. 493

And we are all of Opinion it has not ; and that it is
materially defective in many Things neceffary to an In-
di£lmenc againlt fuch an AccelTary.

Firfl, It is not charged that the Prifoner at the Bar ^"^"^"'^'^''^-
knew that Palmer was Guilty, or convi6led of Felony .-gainft one for
This is an eflfential Ingredient in all Indiflments againft bemg Accef-
a Perfon who becomes an AccefTary after the Fa(0:, by Faa, by Re-
Receiving, Harbouring or Comforting a Felon. So is ^='^'"?'f|^r-

o' o ^ " , bouring, £sff.

Bradoriy lib. 3. De Corona^ cap. 1 3. JeB:. i. i!f 2. Stamf. a Felon, it is
4 1 . /'. 3 /# 1 3 8. Hales PL Co. 2 1 8. Co. Em. $6, ^-j, l""J7,hTt
Rafi. 43./'. 41. a. 50, 53.^. $4. a. This general t^^e t>efen-
Rule has not been dlfputed, but lome Diilinflions havcthePrincbai
been taken to excufe the Want of it in this Indi£l- ^'^^ &'"'']''¥
ment ; as firft, that it appears here that B/^nvW^^ was of Felony ;
a Fellow Prifoner in the lame Gaol with Palmer, and =^"4.^^^ O-
therefore it mull: be prefumed he had Notice of P^?/- thisneceffary
mer's Felony or Convidion. ingredient is

■' not to be

helped by the
Finding of the Verdi£l ; efpecially if the Verdift does not find the Fail of Notice, but only
what is Evidence thereof.

Jnftp. But this appears by the fpecial Verdi6l only,
and not by the Indiifment : And, as I laid at firil,
the Verdift cannot fupply a material Defeft in the
Charge ; neither, if the Queftion was upon the Ver-
di£l, Ihould I think it fufficient ; becaufe it is not the
FaSl of Notice, but only Evidence of it. So in the
Cafe of The King and Plummer, Kelynge, i i 1 . it is laid
down by my Lord Chief Julfice Holt, that the Jury-
might well have found that the Fuzee in that Cale
was difcharged againft the King's Officers ; but fince
they have not found that Matter, we are, fays he,
confined to what they have found politively, and are
not to judge the Law upon the Evidence of a Fail,
but upon the Fail as it is found. Thus alio was the

Vol. Ill, 6 K Refolution

494 ^^ Term. S. Michae/is, 173^.

Relolution of the Court in the late Cafe of The King
and Hitggins, Mich. 4 Geo. 2. B. R.

Secondly., Another Dlftln^lion made was, that it ap-
pears by the Indi£lment that Palmer was convicted by
Verdift in the lame County in which the Offence of
the Acceffary is charged to have been committed, and
the Law prefumes Notice to all in the fame County,
but not in a foreign County. For this Fit^berbert,
Tit. Cor one, PI. 377. Stamf. ^i. b. and Hale's PLC. 2 i2.
were cited.

Jnfrp. The Note in Fit^h. is mentioned to be in
Hillary Term, 12 Edn\ 2. but I cannot find any fuch
Caie or Opinion in Maynarcts Tear-Book of that Term ;
belides it is a very loofe Note, and fcarcely intelligible:

" Nota, That if a Man is indi£led of a Refcue of

" a Perfon outlawed in the fame County, he fhall lofe
" Life and Member, otherwife if in another County."
Nothing is here faid of Notice, and, taken generally, the
Paflage is certainly not Law: But fuppoie this to be
loofely faid in one or two Books, yet it is a harfh Doc-
trine, and I cannot find any Judgment founded upon it ;
nay it is ftrange, how fuch a Dii1:in£lion could be made
at Common Law upon the Point of Knowledge in the
Acceffary ; becaufe, before the Statute of 2 ^ 5 Edrp. 6.
cap. 24. was made, any Perfon, who in one County
received a Felon that had committed a Felony in an-
other County, could not be puniflied at all for wane
of Trial, and confequently the Sufficiency of Notice
could at that Time never come in Qiieflion in fuch a
Cafe.

And therefore my Lord Hale, though he fets it

down as the Opinion of fome others, yet gives his

own Opinion to the contrary. The whole Paragraph

I runs

De Term. S. Michaelis, I75S'- 499

runs thus : — " Every Receipt to make an AccefTary,
*' muil be, knotting him to be fuch; but if a Man be
attaint of Felony in the County of A. the Law
prefumes Notice thereof in the fame County; there-
fore the Receipt of him in the fame County Jeems
" Acceflary ; contra, if in another County. Videtur
*' Cognitio requijita in utroque." And I take thefe latter
Words to be his (p) own Sentiment. I have feen a Ma-
nufcript Note of a very learned Judge upon this PafTage
in Hale's PI. C. in the following Words : ■ — " Mes fern'
" hie que tiel legal Notice neji fufficient a faire un Cri^
" minal, coment foit fufficient a rendre luy rejponjible in
" Matter Civil: Coment eft doubt en ceo: IlLnt il n'eft
*' Acceflary fans a6lual Notice." See alfo Dalton, (laft
Edit.) 530. Stamf. 95.

Mr. Lambard, in his Juflice of Peace, hath this Pafl*-
age, ^.293. " There is fome Opinion, that a Man
" fliall be an Accefl^ary for Receiving a Felon attainted
" (efpecially in the lame County) though he know
" not of the Attainder at all ; for every Man, fay
*' they, is bound to take Knowledge of a Matter of
" Record, af leail in the fame, though not in a fo-
*' reign. County. But BraSlon very reafonably re-
" quires a right and diretl Knowledge in the Parties to
" make them Acceflary, as well in the one Cafe as
" the other ; for albeit a Record, and efpecially the
Pronunciation of an Outlawry, be fo notorious, thaC
every Man may eafily come to know the fame, yet
*' were it an over-great Extremity that each Man fliould,
*' upon the Peril of his own Life, inform himfelf, and
" take Underftanding of it."

{p) See the Paflage tranfcribed from the Lord Hale's Hijlory of the
Pleas of the Crown, inferted, by way of Note, in the Reporter's Argu-
ment, ant' 466-7,

This

49^ Dc Term. S, Michaelis, I7^<^.

This Reafonlng of Mr. Lamhard appears to be very

judicious ; and upon the Whole of this Point we all

think, that the true Way of underftanding thele Books

In an India- is, that an Outlawry or Attainder in a particular

one"as!Sce?^'"""^y "^^7' ^^ ^^^ ^^^^ "^^Y happen to be circum-
fary after the ftanced, h&fome Evidence to a Jury of Notice to an
lon'^ys'by Re- AccefTary in the fame County ; but that it cannot,
cciving, erv. with any Reafon or Juftice, create an abfoliite legal
pal, who was Pf^Jiif^pt ion of Notice, fo as to excule the not Charging
outlawed, or j-j^g Faft to Sc douc fcicns or fcienter in the Indiflment,

attainted in . . j j -»

the fame as It IS here.

County, it

ought to appear, that the Party receiving, tjV. did it fcirns or fdenth; otherwife it will not

amount to an abfolute legal Prefumption, fo as to excufe fuch Omillion.

Befides, if this could be fo, the Fa£l charged in
this Indi61ment to be done by the Prifoner, is, in
Striftnefs, not charged to be done in the County of
Somerfet, where the Convi£lion was ; It is laid, that
after the judgment of Traniportation Palmer was com-
mitted to the Curtody of the Keeper of his Alajefty's
Gaol at Ivelchefier, in the [aid County^ there to re-
main, until he Ihould be tranfported ; ^d that after-
wards, to wit, on fuch a Day, Thomas Burridge, at Ivel-
chefler aforefaid, (without laying in the laid County)
wilfully and felonioufly aided and allifted him to efcape
out of the faid Gaol.

In Criminal Now it is HOt laid, that this Fa£l of Aiding and

Se'coum' ^-(f^fl^^S '^'^^ ^^"^ ^^^^^ Force, nor that Biirridge was
be in the pfefent at the Efcape ; and therefore the Aid and Af-
Jjjg^l^^'g^" fiftance might be afforded in a different County, and
where the We canuot take Notice, that the whole Townfliip or
pofed'w"be ^'^^^ of Ivelchefier is in the County of Somerfet. i Sid,
done, muft 545, Parker verfus Ladd, in Mump/jt, Salop was in the

inthelndicS- j. u 1

ment be laid to be in Com' precdia' ; otherwife in Civil Cafes.

1 Margin,

De Term, S. Michaelis, 1 73 9. 497

Margin, and the Declaration fet forth the Promife to
be made apud Salop, without faying pr£diB\ or in
Com pV'cdiSb', which the Court held to be well enough
in a Declaration, and that the Form in the Common
Pleas is always fo, but declared that it would clearly be
ill in Criminal Cafes. Fajch. hW.t^.B.R. Rex verfus
Foffet, it was held that in an Indi(9:menr, if the County
is in the Margin, and the Place where the Faft is
fuppofed to have been committed, is not faid to be
in Com prM\ it is ill, but that it would be good in a
Declaration.

Thirdly., Another Exception was, that it is not al-
leged that Palmer was in Prifon for the fame Felony
whereof he was convi£led, or for any Felony ait the
Time the Prifoner at the Bar affifted him to make his
Efcape.

The Anfwer given to this was, that in the fpeclal
Verdidi: it is found that the Prifoner did wilfully aid
and aifift William Palmer, jo being in Cuflody as afore'
faid, to efcape out of the laid Gaol. .

But, as I faid before, the Finding of the Jury will
not aid the Indldlment, and therefore this is no An-
fwer ; and we all think that for this Omiflion the
Charge is uncertain ; for it may be true, that in January
Palmer was committed upon the Judgment of Tranlpor*
tation, and in OStober following (as it is here laid) the
Prifonef at the Bar fnight affift him to efcape, and yet
he might have been legally difcharged, and again com-
mitted for another Matter, as in Trefpafs, iffc. in the
mean Time. In Dier ^6^. b. which I mentioned be-
fore, it is laid that the Officer Cepit ^ arreflavit the
Prifoner, tf ipfum in falva fua Ciiflodia adtunc iS^ Ibidem
habuit i^ Cuflodivit, quoufque the Defendants ipfum e
Cufiod' pr^diM' Felonice ceperunt iff refcujfer.

Vol. III. 6 L Another

498 De Term, S. Michaelis, I73<^.

Another Exception was taken to this Indl6laient for
want of being laid Vi i^ Armis.

^uar. whe- The Anfwcr to which was, that it is aided by the

thcr the

want of r/ Statute of 37 H. 8. cap. 8. But the Cafes upon this are
isfJrmis, or ^q various, and dlfaeree fo much, whether the want of

only of the i r i

Words G/rt- Fi iy Armis, or only or the Words, vit^i. Gladiis, BactiUs
t'cufui/h' ^ ^"'^^^^^' which was the antient Form, are aided by-
be by the that Statute, and It is a Point of fo great Confequence,
-ii^KS^Lp '•^^^^ w^ think it more proper to decline giving an
8. aided in Opiuiou upon it, till a Caie fhall happen wherein it
of this^Nl*- ^^^^ ^^ neceflary to be determined; for at prefent we
ture. are of Opinion, that, upon the other Exceptions before

mentioned, the Indictment is infufficient in Law, and
Judgment cannot be given upon it againil the Prifoner.

This, being the Opinion of the Court, gives Rife
to a fubfequent Coniideration, what Judgment ou^hc
to be given for the Prifoner, whether to difcharge him
of this Indi6lment, or to quafli it? And we are all
agreed that Judgment ought to be given to difcharge
the Prifoner from this Indi£lment.

I can find but one Cafe wherein it was done other-
wife, and that was The King againft Keites, Hill.
8 JF. 3. B. R. $ Mod. 2^1. Skin.^666. At the Gaol-
Delivery for the County of Wilts, Mr. Keites was in-
dialed of Murder at Common Law, and alfo on the
Statute of Stabbing, for killing his Servant ; and a Spe-
cial Verdi£l was found, which being removed into this
Court, the QLielllon was, whether the Fa6l amounted
to Murder, or only Manflaughter ? After two Argu-
ments, the Court thought the Special Verdi^l was fo un-
certain and imperfeil:, that no Judgment could be given
upon it ; and a Doubt feems to have arifen, whether a
Venire Facias de novo could be awarded in a Capital

» Cafe.

^dbiMO^^M

De Term. S. Michae/is, 1737. 49P

Cafe. To avoid this Qiieftion, my Lord Chief Juftice
Holt himfelf on the laft Day of the Term took feveral
Exceptions to both the Indi£lments, for which a Rule
was made that they fliould be quaftied. I have caufed
a Search to be made, and no Judgment is entered on
the Record, but I have found the Rule in the Office
Book, and the Prifoner was bailed to appear at the
next Affifes. This palled on the laft Day of the Term,
and I do not find by my Manufcript Report of the
Cafe, which was taken by a very learned Hand, that any
Oppolition was made by either Side to the Qiiafhing of
the Indi£lment. The Ground the Court went upon
feems to have been, that Keites was certainly found
Guilty of Felony in killing a Man ; but what Kind
of Felony it was, whether Murder, or an aggravated
Manflaughter, was uncertain; and therefore it was fit
to be left open to fome Method of Re-examination.

But the prefent Cafe differs materially ; for as this Where the
Indi6lment has not well charged a Felony, fo the has not well
Special Verdi£l has not certainly found any upon the charged a
Fa6ls therein ftated ; and therefore it is totally uncer' the Special
tain whether the Prifoner at the Bar be guilty of any ^^'!^''^."''"

_ , ,, 1 r nxTi r^ r tainly found

Felony at all, or only or a Miidemeanor. Suppole any upon the
the Prifoner had demurred to this Indictment, and the ^^^ ^^r^'

, -,..,. '" ftated,

King s Attorney had joined m Demurrer, and the and confe-
Matter of Law had been argued, the Judgment given Jncmlirl' '*
thereupon muft have been a Judgment of Acquittal, whether the
So I apprehend it would have been, if the Jury had gui'i°y ^f a^n„
found a General Verdift that he was Guilty, and af- Fei°"y ^t
terwards the Judgment had been arretted for Defed^s li\°MmI-
in the Indi6lment. And the like Reafon does in '"^^"°''.; °'"
Juftice hold here. fuch Cafe

the Prifoner
demurs to the IndiiEtment, and the Attorney General joins in Demurrer whereon the Matter
in Law is argued ; or where the Jury has found a General Verdidt that the Prifoner is
Guilty, and afterwards Judgment is arrefted for Defe(£fe in the Indictment : In all thefe
Cafes the Judgment given muft be a Judgment of Acquittal ; but this will be no Bar to
another Indi<5iment conftituting a different Offence.

From

^00 De Term, S. Michaelis, ITSS*-

From hence no Inconvenience can arlfe ; For this
Judgment can only go to the Fa£l: here charged ; but
will be no Bar to a new IndiQment containing a Fa£l
fo dejcribedy and charged with fuch Circumftances as
to conftitute a different Offence. Therefore upon the
whole Matter Judgment mufl be entered for the Pri-
foner, and he muft be difcharged from this Indift-
ment.

Note ; at the Prayer of the King's Counfel, the
Return to the Habeas Corpus was read, whereby it ap-
peared that the Prifoner flood likewife charged with a
Commitment by a Juftice of Peace to Ivelchefler Gaol
for a Mifdemeanor, of which he had confeffed himfelf
Guilty before the Juftice ; he was therefore remanded
back to Newgate, to be there kept in fafe Cuftody until
he fhould be from thence difcharged by due Courfe of
Law. After which the Prifoner was indifted anew at
the next Affifes held for the County of Somerjet, and
being convided on fuch Indictment, was tranfported
for leven Years.

The Indictment on which the Prifoner was tried a
fecond Time, being fettled by Advice of Counfel, was
as follows;

Somerfetfiire. ' I H E Jurors for our Sovereign Lord
-*- the King upon their Oath prefenr,
that heretofore, that is to fay, at the General Quarter^
Sellions of the Peace of our Sovereign Lord the King,
held at Wells in and for the County of Somerjet, upon
Tuejday (to wit) the Eleventh Day of January in the
Fifth Year of the Reign of our Sovereign Lord George
the Second, by the Grace of God, of Great Britain,
France and Ireland King, Defender of the Faith, and
fo forth, and in the Year of our Lord one Thoufand
» feven

De Term. S. MichaeUs, 17 5<^. 901

feven Hundred and thirty- one, before Thomas Carerp,
Efq; jfames Strode, Efq; Thomas Coward^ Eiq; Richard
Comes, Efq; William Long^ Efq; Jojeph Brorvn, Elq;
William Churchey, Efq; William Jones, Efq; Thomas
Palmer, Efq; Adam Martin, Efq; Philip Sydenham, Efq;
and others their Fellows, Juftices adigned to keep the
Peace of our faid Lord the King in the County afore-
faid, and alfo to hear and determine divers Felonies,
Trefpailes, and other Mifdemeanors committed in the
fame County, and fo forth, by the Oath of Thomas
Cooke, Gabriel Pyleaffe, Henry Guy, William Comfel,
John Linthorn, Henry Cofens, Thomas Sampfon, Thomas
Perry, Edward Cox, Thomas Piilmore, Henry Woolford,
John Wefl, James Moore, IJrael Gliflon, William Wear,
Henry Fijlier, Richard Bagg, Jofeph Bernard, Richard
Knorvles, Thomas Davijon, William Sehvay and John Bath,
Gentlemen, good and lawful Men of the County
aforefaid, impanelled, fworn and charged to inquire
for our faid Lord the King, for the Body of the
County aforefaid, it was prefented, that William Palmer
of Overftorvey in the County of Somerfet, Labourer, on
the Twelfth Day of November m the Fifth Year of the
Reign of our Sovereign Lord George the Second, by the
Grace of God, of Great Britain, France and Ireland
King, Defender of the Faith, and fo forth, with Force
and Arms, and fo forth, at Overflorvey aforefaid, one
Ewe Sheep of the Value of lix Shillings, of the Goods
and Chattels of a Perfon unknown, then and there
being found, then and there felonioufly did fteal, taki
and carry, againil the Peace of our now faid Lord the
King, his Crov/n and Dignity, and fo forth.

And the Jurors aforefaid, now fworn here, upon
their faid Oath further preient, that at the fame
General Qiiarter-Sellions of the Peace of our faid Lord
the King, held at Wells, in and for the faid County of
Somcrjet, upon Tuefday the Eleventh Day of January in

Vol. III. 6 Al the

^01 De Term. S. Michaelis, I75'>.

the Flfch Year aforefaid, the aforefaid William Palmer
was duly tried and convifled of the Felony above
mentioned, charged upon him as aforefaid ; and that
it was then and there adjudged by the fame Court,
that the faid William Palmer (hould be tranfported for
the Space of feven Years, according to the Form of
the Statures, as by the Record thereof and Proceedings
remaining amongft the Records of the General Qiiarter-
Seffions of the Peace of the faid County of Somerfet at
Wells in the County aforefaid, it doth more fully ap-
pear.

And the Jurors aforefaid, now fworn here, upon
their faid Oath further fay, that the aforefaid William
Palmer being fo as aforefaid tried and convifted of the
faid Felony, was then and there (to wit) at the fame
General Quarter-Seflions of the Peace of our faid Lord
the King, held at Wells in and for the County afore-
faid, upon Tuefday the faid Eleventh Day of January in
the Fifth Year aforefaid, committed by the fame Court
to his Majefty's Gaol at Ivelcbefler in the County afore-
faid, upon and in Execution of the faid Judgment for
the Felony aforefaid.

And the Jurors aforefaid, now fworn here, upon
their faid Oath further prefent, that Thomas Burrid^e
late of Chard in the County of Somerfet, Taylor, being
a Prifoner in his Majefty's Gaol at Ivelchefler aforefaid
in the County aforefaid, on the Thirteenth Day of
■ OSiober in the Sixth Year of the Reign of our faid
Sovereign Lord King George the Second, and well know-
ing that the aforefaid William Palmer, then alfo a Prifoner
in the faid Gaol^ had been convicted of and committed to
the faid Gaol, in Execution of and for the Felony afore-
faid, and did then and there remain fo convi^ed and
committed upon and in Execution of the Jaid 'Judgment for
the faid Felony as aforefaid, afterwards, that is to lay,
I on

De Term. S. Michaclis, 173^. 903

on the fame Thirteenth Day of O^ober in the Sixth
Year of his faid Majefty's Reign aforefaid, with Force
and Arms at I'velchefler aforefaid in the County cifore'
faid, did wilfully and felonioufly refcue the jaid William
Palmer, then and there being in the jaid Gaol jo conviSied
md committed upon and in Execution oj the jaid Judg-
ment for the jaid Felony as ajorejaid, irom and out of
the iaid Gaol, fo that lie the faid William Palmer did
make his Efcape out of the faid Gaol, and then and
there did wilfully and felonioufly aid and aifift the faid
William Palmer, then and there being in the faid Gaol
fo convifted and committed upon and in Execution of
the faid Judgment for the faid Felony as aforeiaid, in
making his Efcape out of the faid Gaol ; and that the
faid William Palmer, by the Aid and Aililtance of him
the faid Thomas Burridge, did then there make his
Efcape from and out of the faid Gaol, and go at large,
to wit, at Ivelchejler aforefaid in the County ajorejaid.

And the Jurors aforefaid, now fworn here, upon
their laid Oath further fay, that the faid Thomas Bur-
ridge being a Prifoner in his Majefty's faid Gaol at Ivel-
chejler aforefaid, in the County aforefaid, on the faid
thirteenth Day of O^ober, in the faid lixth Year of
the Reign of his faid jMajefty our Sovereign Lord King
George the Second as aforeiaid, afterwards, that is to
fay, on the fame thirteenth Day of OSiober, in the
fixth Year of his faid Majefty's Reign aforeiaid, with
Force and Arms at Ivelchejler aforeiaid, in the County
aforefaid, did wilfully and felonioufly break the jaid
Gaol, and refcue the faid William Palmer, then and there
being in the iaid Gaol fo convifled and committed
upon and in Execution oj the jaid Judgment for the laid
Felony as aforeiaid, from and out of the faid Gaol,
fo that he the faid William Palmer did make his Efcape
out of the faid Gaol, and then and there did wilfully
and felonioufly aid and aflift the faid William Palmer,

then

^04 De Term. S. Michaelis, I73S'«

then and there being in the faid Gaol fo convi6led and
committed upon and in Execution of the faid Judg-
ment for the faid Felony as aforefaid, in making his
Efcape out of the faid Gaol, and that the faid William
Palmer, by the Aid and Afliilance of him the faid T/;o-
mas Bunidge, did then and there make his Efcape from
and out of the faid Gaol, and go at large, to wit, at
Ivelchefler aforefaid, in the County aforefaid, againit
the Peace of our faid Lord the King, his Crown and
Dignity.

A TABLE

TABLE

O F

Contained in

The THIRD VOLUME.

Such of the Contents as have the Letter (N) added at the End,
refer to the Notes, which are, for the tnofi fart, taken from
the Reporter s Manufcript, and were never before printed.

Slbatcmcntj Ecliiijo?.

Commiflion being grant-
ed to examine WitnefTes
at Algiers, the Plaintiff
died, by which, in
flridnefs, the Suit abated, but
the WitnefTes were examined
there before Notice of the
Plaintiff's Death ; the Exami-
nation held regular,
Vol. III.

though

one of the WitnefTes was yet
living. P^i^ 195

See Tit. €i:aminatioit.

If the Defendant's Time for an-
fwering be out, the Court
will order Proceedings to be
revived. So though the De-
fendant by his Anfwer infifls
that the Plaintiff is not inti-
tled to revive ; for this ought
to be fliewn either by Plea or
Demurrer ; but if in fuch Cafe
it appears at the Hearing, that
6 N the

■ tl II Hii M

^ Ta B L E of the Principal Matters

the Plaintiff had no Title to
revive, he cannot have a De-
cree. Page 348

See anfuier, pea and Demur-
rer*

abeiJance*

Though the Freehold of Lands
cannot be kept in Abeyance,
but mufl: veft in Somebody,
yet there is no fuch Rule with
Regard to Perfonal Eftates,
which may remain in Su-
fpence, and wait till a Con-
tingency happens. 305

Lands are devifed to A. and B.
and the Heirs of the Survivor,
in Truft to fell ; though the
Inheritance be in Abeyance,
yet the Truftees by a Fine
may make a good Title by

Eftoppel.

0/ ^

^bjurntiott*

The Nature and Confequences
of Abjuration by the ancient
Common Law. Proteflant
Dilfenters made liable thereto,
by 35 Eliz. cap. i. JeB. 2.
but exempted from them by
the Toleration Aft, or i W.
& M.Jl.i. cap. 18. ^8,

39 (N)

^CCeffarp* See more under Tit.

^jincfpal nno acceffarp*

There may be an AccefTary to

an Acceflary before the Fad,

but not to an AcceiTary after

the Fadt. 47^

Siccount

Where the Child of a Freeman
of Loudon is to make his E-
leftion whether he will abide
by the Will or by the Cuflom,
he is not obliged to eledl un-
til after the Account taken.
Page 1 24 (N)

In a Decree of Forcclofure a-
gainft an Infant, though the
Infant has fix Months after
he comes of Age, to fliew
Caufe, &c. yet he cannot ra-
vel into the Account, nor
even redeem, but only {hew
an Error in the Decree. 352

aafotu

A Scire Facias is not in Nature
of a new Adlion, but a Con-
tinuation only of the old one.

14S

Where the Plaintiff has firft
brought his Adion at Law a-
gainft the Defendant, and has
Bail, the Court of Chancery
will not grant a Ne Exeat
Regnim. 314 (N)

Cbofe en JBion. See ^Vx^W-

uient, 'l^aroii ano feme*

aDfitiption of a Icgacp* See
ILraacf.

Sltiminfffrato?*

A Baftard dies Inteftate without
Wife or Ilfue, and leaving a
Perfonal Eftatej the King is
intitled, and the Ordinary of

Couf fc

contained in the Third Volume.

Courfe grants Adminiflration
to the Patentee of the Crown.

A Church Leafe for three Lives
is granted to a Baflard and his
Heirs, who dies without Iflue,
and Inteftate ; what fhall be-
come of this Lcafe? '^3,34(N)

An Adminiftration is granted du-
ring the Minority of four In-
fant Children, one of whom
being a Daughter, marries an
Hufband who is of Age -, the
Adminiflration is not deter-
mined. 8 1

So where an Infant Executrix
being under feventeen, Admi-
niflration is granted, and the
Infant marries an Hufband of
Age ; this does not determine
the Adminiflration, by the
Opinion of the Lord King,
Chancellor , and Raymond^
Chief Juflice, contrary to the
Opinion in 5 Co. 29, which
feems to have been extraiudi-
cial, and is not taken Notice
of by Cotemporary Reporters.

So if Adminiflration be granted
during the Minority of four
Infants, and one dies; this docs
not determine the Adminiflra-
tion, contrary to the Opinion
in 5 Co. Brudenel's Cafe. 89

In a Bill for an Account of the
Perfonal Eflate of J. S. tho'
the Perfon who has a Right
to adminifter to y. S. be a
Party, yet this is not fufifi-
cicnt without Adminiflration
adually taken out. 349

One fues as Adminiflrator to
y. S. without fliewing that
y. S. died Inteflate ; yet an
Adminiflration taken out of

the Arciihifhop's Court fliall
be intended to be a good Ad-
miniftration. P^g^ 370
Adminiflration granted in a fo-
reign Court (as in Pan's) ;iot
taken Notice of in our Courts.

371
u4. owes Money by leveral Judg-
ments and Bonds, and dies
Inteflate ; his Adminiflrator
pays the Judgments and fome
of the Bonds, and pays more
than the Perfonal Ellate a-
mounts to; what the Admi-
niflrator paid on the Judg-
ments mufl be allowed him ;
but as to what he paid on the
Bonds, he mufl come in pro
rata with the other Bond
Creditors. 400

Where the Wife fues the Huf-
band for a fpecifick Perform-
ance of her Marriage Articles,
and that he may fettle fuch
and fuch Lands upon her in
Jointure, it is no Bar to her
Demand, that fhe has eloped
with an Adulterer ; much lefs
if this be not by the Hi^and
put in IfTue in the Caufc. 269

An Inflance where the Recon-
ciliation by the Hufband af-
ter the Wife's going away
with the Adulterer, was fpe-
cially pleaded, and the Plea
allowed. 273 (N)

Why a Hufband does not forfeit
his Tenancy by the Curtefy
on leaving his Wife, and living
in Adultery, as a Wife forfeits
her Dower by Elopement, t3c.
I 276

A Ta b l e of the Principal Matters

A. having feven Children, malces
an Executor in Truft, and de-
vifes to each Child one yth
of his Perfonal Eftate ; one of
the Children dies in A'% Life-
time, and one of the fix fur-
viving Children has been ad-
vanced by the Father in his
Life-time ; yet this Child fhall
take his full Share of the 7th
Part, without bringing what
he had before received into
Hotchpot. P(^g£ 124

The Father is the only Judge of
what is a proper Advancement
for his Child. 285

Inconfiderable Sums occafionally
given to a Child, not to be
deemed an Advancement, or
any Part thereof. Thus
Maintenance Money, or an
Allowance made by a Free-
man to his Son at the Uni-
verfity, is not to be taken as
any Part of the Child's Ad-
vancement ; nor putting out
a Child Apprentice ; but the
Father buying an Office for
his Son, though but at Will,
as a Gentleman Penfioner's
Place, or a Commiffion in the
Army, thefe are Advance-
ments /)ro tanto. 317 (N)

See more, Tit. JLotltlOlU

An Advowfon defcending to an
Heir is real Aflets, and (as it
feems) extecdible in an Ele-
git. 401

affiriauit (I? 0at5.

Where a Mafter reports any
Thing as admitted, by either
of the Parties, which Report
is afterwards excepted to; the
Report muft, prima facie ^ be
taken to be true, and requires
at leaft an Affidavit to falfify
it. Page 142 (N)

Affidavits allowed to be read for
a Patentee of a new Inven-
tion, upon a Motion to dif-
folve an Injundion, on co-
ming in of the Anfwer. 255

A Precedent of a Ne Exeat Reg-
nmn being granted on Affida-
vits, though there was no Bill
in Court whereon to ground
the Writ. 313 (N)

3igc, anil tuljeii an 3infaiit
fl)a!l f)aue \^\^ age, fee Tit.
parol ticmiir.

affrccment o? Sltticlej). Sec

alfo Agreements on Marriage.

One articles to buy Land, and
the Title is under a Will not
proved in Equity again ft the
Heir ; yet in feme Cafes E-
qiiity will compel the Pur-
chafer to accept the Title. 190

Money agreed to be laid out in
Land, Ihall be taken as Land,
and go to the Heir; and no
Difference where the Money
thus agreed to be laid out and
fettled, is depofited in the
Hands of Truftees, and where
it remains in the Hands of
the Covenantor; the Agree-
ment

contained in the Third Volume.

ment binding in both Cafes,
and making it as Land. P(Jge

211

Whatever for a valuable Con-
fideration is covenanted to be
done, fliall, in Equity, be
looked on as done : Thus
Money agreed to be laid out
in Land fliall be taken as Land;
Gf e converfo. 2 1 5

Ah Father articles with a Car-
penter to pay him 1000/. to
build a Houfe on his Eftate ;
the Carpenter covenants to
build it, A. dies ; the Heir of
A. fliall compel the Building
of the Houfe, and the Exe-
cutor to pay for it. 223

Though by a Deed 5 /. pe7- Cent.
per Ann. was agreed to be al-
lowed, yet' it appearing that
the Money had been placed in
the Government Funds, which
yielded but 4 /. per Cent, the
Court reduced the Intereft to
4/. per Cent. 227

30,000 /. is covenanted to be
laid out in Land ; the Money
need not be laid out all together
upon one Purchafe, but if laid
out at feveral Times it is fufli-
cient ; and if the Covenantor
dies, having after the Cove-
nant purchafed fome Lands
which are left to defcend, this
will be a Satisfadlion pro tan-
to. 228

An Agreement was figned by the
Parties, and by Confent made
an Order of Court, to fubmit
to fuch Decree as the Court
{hould make, and neither Par-
ty to bring his Appeal ; yet
the Caufe was allowed to be
reheard. 242

Vol, m.

An Executor in Trufl, who had
no Legacy, and where the
Execution of the Truft was
likely to be attended with
Trouble, at firft refufed, but
afterwards agreed with the Re-
fiduary Legatees, in Confidera-
tion of 100 Guineas, to ad;
in the Executorfliip, and he
dying before the Execution of
theTrufl: was compleated, his
Executors brought a Bill to be
allowed thefe 100 Guineas out
of the Trufl Money in their
Hands ; the Court difallowcd
the Demand. 'Bage 251,

252 (N)

An Attorney, on Behalf of his
Client the Defendant, promifes
to pay 500/. to the Plaintiff}
this being done by the Con-
fent of the Client, the At-
torney is not liable, but only
the Client. Secin, if the At-
torney had no Authority from
his Client to make this En-
gagement. 277

Brokers or Factors who aft [or
agree] for their Principals, not
liable in their own Capacities.

279

A Truft Eftate was decreed to
be fold for the Payment of
Debts and Legacies, and to be
fold to the bed Purchafer. A.
articles to buy the Eftate of
the Truftces, and brings a Bill
to compel them to perform
the Contrail:. The Truftees
by their Anfwer difclofe the
Matter ; the Court will make
no new Decree, but leave the
former Decree to be purfued.

282

6 O

Agree-

A Ta b l e of the Principal Matters

Agreement, when to be performed
in Specie and when not.

A Bill lies to compel a fpecifick
Performance of an Award,
where the Party fubmitting
has received the Money, in
Confideration whereof he is
to convey the Eftate fued for.
Page 187

Where the Huftand, for a valu-
able Confideration, covenants
that his Wife (hall join with
him in a Fine ; this Court
will enforce a Performance of
fuch Covenant. 189

^are, If it appears to be im-
poflible for the Hufband to
procure the Concurrence of
his Wife. ibid. (N)

Difference between Awards to
pay Money, and to do any
Thing Collateral ; and why a
Bill in Equity may be proper
only to compel a [fpecifick]
Performance of the latter. 1 90

A Bill in Equity lies not to
compel a fpecifick Perform-
ance of an Agreement to pay
Money in Confideration of
having ftifled a Profecution
for Felony ; /ecus, if to flop a
Profecution at Law for a
Fraud. 279

Underhand Agreement, in what
Cafe the Court refufed to Jet
one afide.

A. treated for the Marriage of

his Son, and in the Settlement

on the Son there was a Power

refer ved to the Father to join-

ture any Wife whom he
fhould marry, in 200 /. per
Ann. paying 1000/. to the
Son. The Father treating a-
bout marrying a fecond Wife,
the Son agreed with the fecond
Wife's Relations to releafe
the 1000/. and did releafe it;
but took a private Bond from
the Father for the Payment
of this 1000/. Equity would
not fet afide this Bpnd, be-
caufe it would be injurious to
the firfl Marriage, which be-
ing prior in Time was to be
preferred. P^g^ 66

Agreements on Marriage.

By Marriage Articles Money
is agreed to be invefled in a
Purchafe, and fettled on A. in
Tail, Remainder to A. in
Fee, A. has neither Wife nor
IfTue, and might by a Fine
only difpofe of the Lands if
fettled ; yet the Court (the
Lord King) would not order
the Money to be paid to A.
a fortiori he would not, if
there were either Wife or If-
fue. 13

But Note ; this appears to be
contrary to the Opinion of
the Lord Macclesfield, and al-
fo to the prefent Pradice.

14 (N)

A. covenanted on his Marriage
to lay cut 3000/. in the Pur-
chafe of Land, and to fettle it
on himfclf in Tail, Remain-
der to B. A. purchafed the
Manor of D, with this 3000/,
and never fettled it, but fuf-
fered a Recovery thereof j as

the

I^M^^irftaH^V^Mte

contained in the Third Volume.

the Covenant was a Lien on
the Land, (o the Recovery
fufFered thereof difcharged the
Lien, and barred B. of the
Benefit of the Covenant and
the Remainder. Page iji

The Father Tenant for Life, Re-
mainder to the Son in Tail,
with Remainder over. The
Son is an Infant, and on an
advantageous Match being pro-
pofed for the Son, the Father
and Infant Son )oin in Mar-
riage Articles, and the Father
only covenants, that within a
Year after the Son's coming
to Age, the Father and Son
will join in a Fine and Reco-
very of the Family Eftate to
feveral Ufes. The Infant Son
feals the Deed, and within a
Year after he comes to Age,
joins with his Father in a Fine
and Recovery, but no Deed
to lead the Ufes is to be
found ; the Infant Son's Seal-
ing thefe Articles not fuffici-
ent to declare the Ufes of the
Fine and Recovery. 206

Sir P. T. Tenant for Life, Re-
mainder to his Son R. T. for
Life, Remainder to his firft,
&c. Son in Tail. Sir P. T.
by Indenture Tripartite be-
tween himfelf, his Son R. and
y. S. covenants to levy a Fine
of the Premilfes, but R. the
Son only fealed the Deed
without joining in any Cove-
nant ; this no Surrender, nor
Releafe-, nor confcquently any
Deftrudlion of the contingent
Remainder to the firft, &c.
Son o(R. 210 (N)

1 500 /. in the Hands of the
Wife's Truftees, and 500/. in

the Hufband's Hands, is co-
venanted to be laid out in
Landj and fettled on the Huf-
band for Life, Remainder to
the Wife for Life, Remainder
to the firft, &c. Son, Re-
mainder to the Daughters, Re-
mainder in Fee to the Huf-
bandi They have IfTue a
Daughter, the Hulband dies,
foon after which the Daughter
dies before the Purchafe made,
and then the Wife dies ; the
Money fhall, as Land, go to
the Heir of the Hufband.
Page 9. 1 6

So Money articled on Marriage
to be laid out in Land, and
fettled, (hall go as Land, tho'
the Wife be dead without
IfTue. 2 1 7

Money articled on Marriage to
be laid out in Land, and fet-
tled, is not AfTets even at
Law. il?iJ.

Money, Part of which is the
Hufband's, and other Part the
Wife's, is, on Marriage, to
be laid out in Land, and fettled
to the Hufband for Life, Re-
mainder to the Wife for Life,
Remainder to the Heirs of
their two Bodies, and the
Ufes go no further j the Heir
of the Hufband fhall have the
Whole. ilfid.

Where Money is, on a Marriage^
to be laid out in a Purchafe,
and fettled to the common
Ufes in a Marriage Settlement,
adding a Claufe, that the Pur-
chafe (hall be made with the
Confent of the Hufband and
Wife; it makes no Diverfity,
though no Confent was given
to any Purchafe made during

the

A Ta b l e ^/ the Principal Matters -

the Life of the Hufband and
Wife ; for ftill the Money
fliall be taken as Land. I'age

218

Money articled to be laid out
in Lands, and fettled on Huf-
band and Wife and IlTue, Re-
mainder in Fee to the Huf-
band, will pafs by the Devife
of a Real Eftate, though the
Money was never laid out.

221

Articles on Marriage, whereby
Money is agreed to be laid
out in Land, and fettled, in
Default of Iffue Male of the
Marriage, on the Hufband's
Brother, fliall, if the Hu{band
dies without Iffue Male, and
leaving only Daughters, be
performed in Favour of the
Brother, though they were vo-
luntary, and though the Huf-
band might have barred fuch
Remainder. 223

See Agreement •voluntary, port.

A. covenants for himfelf and his
Heirs, that he will purchafe
Lands, and fettle the fame on
himfelf for Life, Remainder
to his Wife for Life, Re-
mainder to himfelf in Fee 3
Equity will compel the Exe-
cutor to lay out the Money,
though the Heir is both
Debtor and Creditor. 224

30,000 /. is covenanted to be
laid out in Land ; the Money
need not be laid out all to-
gether in one Purchafe, but
if laid out at feveral Times,
it is fufficient. 228

A Freeman of London com-
pounds with his Wife for her
* Cuflomary Part before Mar-
riage; it fhall be taken as if
2

no Wife, and the Hufband
fliall have one Half of the
Perfonal Eftate in his own
Power, the Children the o-
ther Half. Pog(! 320

Agreement 'vcJuntary.

Any voluntary Bond is good a-
gainft the Executor, though
to be poftponed to a fimple
Contraft Debt. 222

Articles on Marriage, whereby
Money is agreed to be laid
out in Land, and fettled, in
Default of Iffue Male of the
Marriage, on the Hufband's
Brother, fhall, if the Hufband
dies without Iffue Male, and
leaving only Daughters, be
performed in Favour of the
Brother, though they were
voluntary. 223

An Hufband voluntarily, and af-
ter Marriage, permits the
Wife, for her leparate Ufe, to
make Profit of all Butter,
Eggs, Pigs, Poultry, Gff. be-
yond what is ufed in the Fa-
milv ; out of which the Wife
faves 1 00 /. which the Huf-
band ^sorrows, and dies ; the
Court will allow of this A-
greement to encourage the
Wife's FrQgality, and the
Wife fliall come in as a Cre-
ditor for the 100/. efpecially
there being no Deficiency of
Affets to pay Debts. 337

A. having a Wife who lived fe-
parate from him, afterwards
courted and married another
Woman who knew nothing
of the former Wife's being a-
live ; but it being difcovered

contained in the Third Volume.

to the fecond Wife that the
former was ahve, A. in order
to prevail with the fecond
Wife to ftay with him, fome
Years afterwards gave a Bond
to a Truftee of the lecond
Wife to leave her looo/, at
his Death, and died, not lea-
ving AfTets to pay his fimple
Contrad: Debts ; if this Bond
had been given immediately
after the Difcovery, and they
had parted thereupon, it had
been good ; whereas being gi-
ven on the afore mentioned
Confideration, it was worfe
than voluntary, and decreed
to be poftponed to all the
fimple Contrad: Debts. Page

339

Matters arifing after filing the
Bill, may be charged by way
of Amendment as well as
Supplement. 351

A Writ of Error in no Cafe a-
mendable, and why. 3 1 5 (N)

I devife 1 00 /. per Ann. to my
Son A. and his Wife for
their refpedlive Lives, 60 /.
whereof to be paid to the
Wife for the Support of her-
felf and Daughter, the Re-
maining 40/. to my Son ; the
Son dies, his Wife fliall have
the Whole 100/. per Ann,

121

•One in Satisfadlion of a Widow's
Dower mortgaged Lands on
Vol. m.

Condition to pay her 20/. per
Annum \ this being an annual
Payment fecured by Land,
was held liable to anfwer
Taxes as the Land paid ; but
the Court refufed to make the
Annuitant refund in Refpcdt
of the Payments which flie
had received Tax free, and for
which the Party paying had 0-
mitted to dedudl.P^/^^ i28(N)

See Eent.

Where one by Will charged the
Refidue of his Perfonal Eflate
with 40 /. per Annum to his
Wife, to be paid Quarterly ;
the Executor was ordered to
bring before the Mafter fuffi-
cient in Bonds and Securities
to be fet apart to anfwer this
Annuity. 336

A Defendant cannot demur and
anfwer to the fame Part of
the Bill, for the Anfwer over-
rules the Demurrer. 80

Where the Plaintiff fues both at
Law and in Equity for the
fame Thing, he will be put
to make his Eledlion in which
Court he will proceed ; but
need not however make fuch
Eledion, till the Defendant
has anfwered. 90

One through great Age being
deprived ol his Memory, and
become almofl Non compos
mentis^ was admitted to an-
fwer by his Guardian, in Re-
gard the Matter in Qneflion
was but fmall; but had the
Value been confiderable, the
regular way had b*en to have
6 P taken

A Ta b l e of the Principal Matters

taken out a CommilTion of
Lunacy, and have gotten a
Committee afligned. Pa<j^e

III (N)

An Infant's Anfwer cannot be
given in Evidence againft him,
becaufe it is not the Anfwer of
the Infant, but of the Guar-
dian, w^ho is fworn, and not
the Infant. 237

But where a Defendant put in an
Anfwer to a Bill brought by
an Infant, who did not reply
to it, in fuch Cafe the Anfwer
was taken to be true, in Re-
gard the Defendant, for want
of a Replication, was deprived
cf an Opportunity of examin-
ing Witnefles to prove his An-
fwer; and he ought not to
fufFer for fuch Omiflion in
the Plaintiff. 237 (N)

^are tamen.

Baron and Feme Defendants to
a Bill ; the Feme muft an-
fwer, though the Anfwer can-
not be read againft the Huf-
band, but may (poffibly) be
read againft her, if flie fur-
vives. But in no Cafe is the
Feme bound to anfwer a Bill
fubjefting her to a Forfeiture,
though the Huiband has fub-
mitted to anfwer. 238

The Defendant pleaded to the
whole Bill, and on arguing
the Plea, it was ordered to
ftand for an Anfwer, without
faying one way or other, whe-
ther the Plaintiff might ex-
cept ; the Plaintiff not allowed
to except, for that by an An-
fwer was meant a fufficient
Anfwer ; an infufficient An-
fwer being as none. 239

Why the Anfwer of one Defen-
dant cannot be read againft
another. P^g^ 3 1 1 (N)

Where a Corporation Aggregate
are Defendants, they are not
liable to a Profecution for Per-
jury, though their Anfwer be
never fo falfe. 310

A Defendant not bound to an-
fwer what tended to accufe
him of Maintenance, or of
buying pretenfed Rights with-
in 32 H. 8. cap. 9. 375

Sippcal.

No Appeal lies from an Order or
Decree of the Lord Chancellor
or Lord Keeper touching Ide-
ots or Lunaticks, but only to
the King in Council. 108 (N)
Where fee the Refolution of the
Hoife of Lords on that Poifif.

An Agreement was figned by
the Parties, and by Confejit
made an Order of Court, to
fubmit to fuch Decree as
ftiould be made, and neither
Party to bring an Appeal ; yet
the Caufe allowed to be re-
heard. 242

Apportionment See ai)crri0e
anu Contribution,

Apprentice,

Putting out a Child Apprentice
not to be reckoned as Part of
his Advancement. 317 (N)

Atbitrament anti Ai;bitcato?£f,

See AUiarD,

arrears

contained in //;^ Third Volume.

artearg of Kent* See Eentgf*

Slrrca of 3futipient. See
juUffment*

Buying for a Child a Commiffion
in the Army, to be reckoned
as Part of his Advancement.

Page 2,17 i^)

atticlc^* See Agreement,

SlTent aitH Content, See alfo
Tit. legacp.

Where a Term for Years Is de-
vifed to A. for Life, Remain-
der to B. and the Executor
affents to the Devife to A.
this is a good Ailent to the
Devife over. 12

Where the Hufband, for a va-
luable Confideration, cove-
nants that his Wife fliall join
with him in a Fine, Equity
will inforce a Performance of
the Agreement, on a Pre-
fumption that the Hufband
has firft gained his Wife's
Confent for that Purpofe. 189

See alfo the Note there fubjoined.

Where Money is on a Marriage
to be laid out in Land with
the Confent of Truftees, the
Cefliiy que Truft is to do the
firft AiTt, "viz. to propofe his
Purchafe and Settlement, and
the Truftees are not previoufly
to confent. 214

atfctd in ILalu o? €quit))» See

alfo ]^ni-, CreCUtO?, and

Pccfonal esnte,

A. is a Copyholder in Tail, the
Lord grants the Freehold of
the Copyhold to him in Fee j
the Copyhold, though en^
tailed, is extindt, and AfTets.

Page 9

One binds himfelf and his Heirs
by a Bond, and mortgages
fome Lands of which he is
feifed in Fee for more than
the Value; his Heir has 200/.
for joining in a Sale of the
Premifles ; this 200 /. is not
Allcts. 10

A Leafe granted to one and his
Heirs for three Lives is a Real
Eftate ; and though by the
Statute of Frauds it is made
liable [or Aflets] to pay Debts,
it is only fuch Debts as bind
the Heir. 166

Money articled on Marriage to
be laid out in Land, and fet-
tled, is not Affets even at
Law. 217

One pofTcffed of a Term for
Years mortgages it, and dies,
leaving Debts, fome by Bond,
and others by fimple Contradt j
the Equity of Redemption is
equitable Aflets, and fhall be
liable to all the Debts equally.

But where a Bond is 2:iven to

B. in Trufl: for A. who dies,
the Money due on the Bond
fliall be paid in a Courfe of
Adminiftration ; fo if there
be a Term for Years to jB. in
Truft for A. 342

A Ta b l e 0/ the Principal Matters

An Executor affigns a Term in
Truft to attend the Inheri-
tance ; the Term is by this
Means become not Aflets at
Law. Fage 330

An Advowfon defcending to an
Heir is Real Aflets. 401

MarfMlling of Afjets, and in
•what Order Debts are to be
paid.

One devifes all his Real Eftate in
Truft to pay all his Debts ;
the Bond Creditors recover
Part of their Debts out of the
Perfonal Eftate ; the fimple
Contrai^l Debts fhall be e-
qually paid out of the Real
Eftate with the Bond Debts,
and the Bond Creditors fhall
have nothing thereout, until
the fimple Contrail Creditors
ftiall have received as much
from the fame, as (hall make
them equal in Payment with
the Bond Creditors. 323

On a Devife of Lands to pay
Debts, a Legatee, whether
Specifick or Pecuniary, ftiall
be paid out of the Lands, if
the fimple Contract Creditors
have exhauftcd the Perfonal
Eftate. ibid.

If one owes Debts by Bond, and
devifes his Lands to J. S. in
Fee, and leaves a Specifick
Legacy, and dies, and the
Bond Creditor comes upon the
Specifick Legacy for Payment
of his Debts ; the Specifick
Legatee fliall not ftand in the
Place of the Bond Creditor to
charge the Land. 324

A. died feifed of fome Lands in
Fee, and confiderably indebt-
ed by Judgment and fimple
Contradl, and after the Death
of A. and before the ElToigti
Day of the next following
Term, many of the Judg-
ment Creditors delivered Fieri
Facias's to the Sheriff", and
took the Goods in Execution ;
here, forafmuch as the Judg-
ment Creditors by Relation
had evidled thefe Goods from
A. in his Life-time, (fuch
their Execution relating to the
Tefte of the Writ) the fimple
Contract Creditors were htld
to be without Remedy, and
not allowed to ftand in the
Place of the Judgment Cre-
ditors, and be paid out of the
Land in Proportion a$ they
had exhaufted the Perfonal E-
ftate. Page 399, 400 (N)

airiffiimcnt, ann cf fcljat
'(iTfjiiiff.s it map oi mnp not

A contingent Intereft, and which
may be releafed by the Bank-
rupt, is aflignable by the Com-
miflioners.

See alfo 'Bnillirupt.

A Man pofl^efiTed of a Cbofe en
JlSfion in his own Right, may
aflign it, though without any
Confideration. 199

But Baron pofl"cfi*ed of a Cbofe en
ABion in Right of his Wife,
cannot aflign it unlefs for a
valuable Confideration, and
yet he may releafe it. ibid.

If the Wife has a Judgment,
and it is extended upon an

Elegit,

132

contained In /Z^^ Third Volume.

Elegity the Hiifband may af-
lign it without a Confidera-
tion J fo if a Judgment be
given in Truft for a Feme
Sole, who marries, and by
Confent of her Truftees, is
in PolTeffion of the Land ex-
tended, the Hufband may af-
fign over the extended In-
terefl ; and by the fame Rea-
fon, if the Feme has a De-
cree to hold and enjoy Lands
until a Debt due to her is
paid, and (he is in Poffeflion
of the Land under this De-
cree, and marries ; the Huf-
band may affign it without
any Confideration ; for it is
in Nature of an Extent. Page

200

At Common Law if a Man had
granted a Rent to A. his Ex-
ecutors and Affigns, during
the Life of B. and afterwards
the Grantee had died leaving
an Executor but no Aflignee ;
the Executor fhould not have
had the Rent, in Regard it
being a Freehold, the fame
could not defcend to an Exe-
cutor ; but this is helped by
the Statute of Frauds. 264 (N)

Where the Thing afligned is on-
ly a Chofc en A^io?i, though
the Aflignment be without
Notice, yet as no legal Eftate
pafles, ^// prior efi in Tem-
pore, potior eji in Jure. 308

If there are two Executors, who
are alfo Refiduary Legatees,
and one of them for a valu-
able Confideration affigns Part
of his Refiduum to A. and af-
terwards for a valuable Con-
fideration affigns his whole
Rejiduum to the other Exe-

VOL. III.

cutor, if both are but Cbofes
en Albion, the fiift nuift take
Place. Page 308

Ctttncljmcnt See j^^ccef:^*
attninUet* See jfclonp and

Notice of Motion given by one
not allowed to adl as Solicitor,
not good. 104

An Attorne^^ for and on Behalf
of his Client the Defendant,
promifes to pay 500 /. to the
Plaintift; this being done by
the Confent of the Client, the
Attorney is not liable, but
only the Client ; /ecus, if the
Attorney had no Authority
" from his Client to make this
Engagement. 277

Sltto?iimcnt

A Corporation Aggregate could
not at Comrhon Law make
an Attornment without Deed,
neither could fuch Attornment
be on a Condition fubfequent.

426

Attornment taken away by 4 Q"
5 Anna, cap. 16. fc^. 9. ibid.

a^cratye nun Contrilnitiottv

One by Will charges all his
worldly Eftate with his Debts,
and dies feifed of Freehold
and Copyhold Eftates, which
he particularly difpofes of by
6 Q_ his

A Tab LE of the Principal Matters

his Will ; the Copyhold, tho'
not furrendered to the Ule of
the Will, fliall yet be applied
to the Payment of the Dtbts
pari p^ffu with the Freehold.

Page 96

If I charge all my Lands with
Payment of my Debts, and
devife Part to A. and other
Part to B. &c. the Creditors
cannot be paid out of the
Lands till the Mufter has cer-
tified what the Proportion is,
which each Devi fee is to con-
tribute: But if the Mafter cer-
tifies, that the Debts will ex-
hauft the whole Real Eftatc,
then the Creditors may pro-
ceed againfl: any one Devifce
for the Wliole. 98

One dies indebted by Bond, and
feifed in Fee of divers Lands,
Part of which he devifes to
y.S. and other Part he de-
vifes to his Heir at Law ;
though this latter Devife is
void (as to the Purpofe of
making the Heir take other-
wife than by Defcent) yet it
fhews the Teftator's Intent
that the Heir (hould have this
Land ; and therefore (as it
feems) the Lands devifed to
y. S. and the other Lands de-
vifed to the Heir at Law, (hall
contribute in Proportion to
pay the Bond Debts, 367 (N)

Leafe of a Coal-Mine, rcferving
Rent. yi. the Leffee declares
himfelf a Truftee for five Per-
fons, to each a Fifth. The
five Partners enter upon, work
and take the Profits of the
Mine, which afterwards be-
comes unprofitable, and the
LelFee Infolvent j decreed that

the Q'Jii/y que Trufts fliould
contribute each one Fifth to-
wards fatisfying the Plaintiff
the Arrears of Rent that had
incurred during the Time they
had concerned themfelves in
taking the Profits. Page

404 (N)

A Corporation Aggregate cannot
without Deed authorize or
empower a third Pcrfon to
feife Goods for their Ufe as
forfeited, nor to enter for a
Condition broken. 424, 425

auinrti anD Arbitrators?*

A Bill lies to compel a fpecifick
Performance of an Award to
convey an Eftate, where the
Party fubmitting has received
the Money, in Confideration
of which he is to convey the
Eftate fued for. i '6j

Difference between Awards to
pay Money, and to do any
Thing Collateral ; and why a
Bill in Equity may be proper
only to compel a Performance
of the latter. 190

After an Award made, it is too
late to confirm the Submif-
fion fo as to make it good
within the Adt of 9 Gf 10
IF. 3. cap. 15. 361

A Party fubmitting to an Award,
defired the Arbitrator to defer
making his Award until he
(hould fatisfy him as to feme
Things which the Arbitrator
took to be againft him : Tho*
tliis was witliin two or three

Days

contained in the Third Volume.

Days before the Time for ma-
king the Award was out, yet
the Requeft not being com-
plied with, the Award was
held ill. Fage 361

iV"^ "Exeat Regmim ought
not to be granted where
the Demand is intirely at
Law; for there the Plaintiff
has Bail, and he ought not
to have double Bail, both at
Law and in Equity. 314

See alfo the Note. ibid.

•BanK of englann auH 15anU
Boteis*

One with Lemon Juice takes out
a Receipt written on the In-
fide of a Bank Note, but
called an Indorfement ; this
held to be Rafmg an Indorfe-
ment within the 8 cif 9 ^. 3.
cap. 19. feSi. 36. and to be
Felony without Clergy. 419

'Banfeiuptgf*

On a joint Commiffion agalnfl:
two Partners Bankrupts, the
feparate Creditors, though they
have taken out feparate Com-
niiflions, fhall yet be at Li-
berty to come in to oppofe
the Allowing of the Certifi-
cate. 23

Where two Partners are Bank-
rupts, and a joint Commif-

fion is taken out againft them,
if they obtain an Allowance
of their Certificate, this will
Bar as well their feparate, as
their joint Debts, and fo vice
'verja. P'^g^ '24

On a joint Commiffion, the
joint Creditors are firfl to
come in on the Partnerfhip
EfFeds, and if there remains
a Surplus, then the feparate
Creditors are to be admitted.

A contingent Interefl, or Pof^i-
bility in a Bankrupt, is affign-
able by the Commif^oners j
as where the Devife was to
fuch of the Children of A. as
fhall be living at his Death j
A. had IfTue B. who becoming
a Bankrupt, got his Certificate
allowed ; this contingent In-
terefl held liable to the Bank-
ruptcy [and affignable] for as
much as the Son in the Fa-
ther's Life-time might have
releafed it. .132

Though the AfTignee of the Ef-
fedls of a Bankrupt claims
under an Aft of Parliament,
yet, as the Statute of Limita-
tions might be pleaded againfl
the Bankrupt, by the fame
Reafon it is pleadable againft
fuch Afiignee. 144

One not in Debt, nor then a
Trader, makes a voluntary
Settlement on a Child, and
afterwards becomes a Trader
and a Bankrupt ; this Settle-
ment not liable to the Bank-
ruptcy. . 298

If A. and B. joint Traders, be-
become Bankrupts, and there
are joint and feparate Com-
raiflions taken out againfl

them.

A Ta b l e of the Principal Matters

them, and A. and B. before
the Bankruptcy, become joint-
ly and feverally bound to y. S.
y. S. may eleft under which
CommifTion he will come, but
fliall not come under both.

But if two joint Traders owe a
Partnerrtiip Debt, and one of
the Partners gives a Bond as
a collateral Security for Pay-
ment of this Debt; here the
joint Debt may be fued for by
the Partnerfhip Creditors, who
may likewife fue the Bond
given by one of the Traders.

,4oS

'Bam'fljment.

Banifliment cannot be but by Adt
of Parliament. 3.8

'Baruain^ Catcljinrj* Seerpeu-,

1331011 anti feme* See alfo
Agreements on Marriage.

If Money be devifed to an In-
fant Daughter, who marries,
the Court may refufe helping
the Hulband to the Money,
unlefs he makss a fuitable Set-
tlement, 12,202

Where the Hufband was attaint-
ed of Felony, and pardoned
on Condition of Tranfporta-
tion ; and the Wife afterwards
became intitled to fome Per-
fonal Eftate as Orphan to a
Freeman of London ; this Per-
fonal Eftate decreed to belong
to the Wife as to a Feme Sole.

Z7> 3^

Inftances where a Feme Covert
having a feparate Eftate, has
been iued in Refpe(5t thereof as
a Feme Sole. Page 38 (N)

The Cuftody of a Lunatick may
be granted to a Feme Covert,
though file be not fui Juris,
but under the Power of her
Huftjand. 111 (N)

Where the Huftiand for a valu-
able Confideration covenants
that his Wife fliall join with
him in a Fine ; Equity will
inforce a Performance of fuch
Covenant. 189

But if it can be made appear to
have been impoflible for the
Huftjand to procure the Con-
currence of his Wife, (as fup-
pofe there are Differences be-
tween them) and the Hufband
offers to return all the Money
with Intereft and Cofts ; ^.
If under thefe Circumftanccs
the Huft)and would not be ex-
cufed ? il^id. (N)

Baron pofleffed of a Cbofe en Ac-
tion in Right of his Wife, may
afllgn it for a valuable Con-
fideration ; /'ecus if there be no
Confideration. 199

In all Cafes where a Huftjand
makes a Settlement on his
Wife in Confideration of her
Fortune ; the Wife's Portion,
though confifting oi Choffs en
ASlion, and though there be
no particular Agreement for
that Purpofe, is looked on as
purchafed by him, and will
go to his Executors, ibid. (N)

If the Wife has a Judgment, and
it is extended on an Elegit^
the Hufband may aflign it
without a Confideration ; (o
if a Judgment be given in

Truft

contained in the Third Volume.

Truft for a Feme Sole who
marries, and by Confent of
her Truftees is in Poffeffion of
the Land extended, the Hiif-
band may affign over this ex-
tended Intereft ; and by the
fame Reafon, if the Feme has
a Decree to hold and enjoy
Lands, until a Debt due to
her is paid, and flie is in Pof-
feflion of the Land under this
Decree, and marries ; the
Hufband may affign it with-
out any Conlideration ; for it
is in Nature of an Extent.
Page 200

Baron and Feme are Defendants
to a Bill ; the Feme muft an-
fwer, though the Anfwer can-
not be read againfl the Huf-
band, but may (poflibly) be
read againfl: her, if flie fur-
vives. 238

But in this Cafe the Feme is not
bound to anfwer the Bill, if
tending to fubje6l her to a
Forfeiture, though the Huf-
band has fubmitted to anfwer.

ibid.

Where the Wife fues the Huf-
band for a Specifick Perform-
ance of her Marriage Articles,
and that he may fettle fuch
and fuch Lands on her for her
Jointure ; it is no Bar to her
Demand, that {he has eloped
with an Adulterer ; much lefs
if this be not by the Hufband
put in Iffue in the Caufe. 269

A Precedent cited, where a Re-
conciliation by the Hufband,
after the Wife's going away
with the Adulterer, is fpe-
cially pleaded, and the Plea
allowed. 273 (N)

Vol. in.

In the Cafe of a Divorce a Menfd
©" Tfjoro, Baron and Feme
live feparately, and the Wife
has a Child ; this is a Baftard j
for the Court will intend Obe-
dience has been paid to the
Sentence during this Time.
But if in the Cafe of a volun-
tary Separation a Child is born,
this is Legitimate. Seats,
where the Jury find the Huf-
band has had no Accefs to his
Wife. P^gs 275

Articles to fettle Lands in Join-
ture, are in Nature of an ac-
tual Jointure, which is not
forfeited by Elopement, like
Dower. 276

Why a Hufband does not forfeit
his Tenancy by the Curtefy
on leaving his Wife and living
in Adultery, as a Wife for-
feits her Dower by Elope-
ment, ibid.

An Hufband voluntarily, and
after Marriage, allows the
Wife, for her feparate Ufe, to
make Profit of all Butter,
Eggs, Pigs, Poultry and Fruit,
beyond what is ufed in the Fa-
mily ; out of which the Wife
faves 100/. which the Huf-
band borrows, and dies ; the
Court allowed of this Agree-
ment to encourage the Wife's
Frugality, and the Wife ad-
mitted to come in as a Cre-
ditor for this 100/, efpecially
there being no Defedt of Af-
fets to pay Debts. 337

So where the Hufband agreed
that the Wife fliould take two
Guineas of every Tenant that
renewed a Leafe with the
Hufband, beyond the Fine
which the Hufband received ;
6 R tl.is

A Ta B l E of the Principal Matters

this was allowed to be the
Wife's feparate Money. Fage

339
A. having a Wife who lived fe-
parate from him, afterwards
courted and married another
Woman who knew nothing
of the former Wife's being a-
live ; but it being difcovered
to the fecond Wife that the
former was living, A. in or-
der to prevail on the fecond
Wife to ftay with him, fome
Years afterwards gave a Bond
in Truft for the fecond
Wife, to leave her looo/. at
his Death, and died, not lea-
ving Affets to pay his fmiple
Contraft Debts; decreed, that
this Bond, as it was given on
an illicit Confideration, and
confequently worfe than a vo-
luntary Bond, fhould be poft-
poned to all the fimple Con-
tradl Debts ; though had it
■been given immediately on the
Difcovery that the firft Wife
was alive, and they had part-
ed thereupon, it had been
good, as given on a juft Con-
fideration. ibid.
The Equity of Redemption
comes to a Feme Covert, a-
gainft whom and her Huf-
band a Bill is brought to fore-
clofe ; the Feme Covert fliall
be foreclofed abfolutely, and
fliall have no Time to fliew
Caufe after the Death of her
Hu{band. 352
Hufband on Marriage fettles
100/. per Anmnn Pin-Money
in Truft for the Wife, for her
feparate Ufe, which becomes
in Arrear, and then the Huf-
Ihand gives the Wife a Le-
I

gacy of 500 /. after which
there is a further Arrear of
Pin-Money, and then the
Hufband dies -, this Legacy be-
ing greater than the Debt, de-
creed, even in the Cafe of a
Wife, to be a Satisfadlion of
the Arrears of Pin-Money due
before the making of the Will.

^^g^ 353
Where Pin-Money is fecured to

the Wife, and the Hufband
finds her in Clothes and Ne-
celfaries ; this is a Bar as to
any Arrears of Pin-Money in-
curred during fuch Time. 355

A Donatio caujd mortis may be
from a Man to his Wife. 357

A Woman indebted dum Joky
marries, and brings a Portion
to her Hufband, and dies ;
Equity will not help the Cre-
ditor againft the Hufband to
the Value of what he received
with his Wife, 409

So on the other Hand, where a
Woman indebted dum Jola^
marries, and brings no Por-
tion to her Hufband, againfl
whom Judgment is recovered
for fuch Debt, and then the
Wife dies ; Equity will not
relieve the Hufband againfl the
Judgment. 412

OSnflarD,

One having a Baftard, leaves a
Perfonal Eftate to her Execu-
tor in Trull for the Baflard,
who dies Inteftate without
Wife or IfTue. The Executor
brings a Bill againfl one who
has Part of this Perfonal E-
flate in his Hands, The De-
fendant

contained in the Third Volume.

fendant demurs, becaufe the
Attorney General and the Ad-
miniftrator of the Baftard are
not Parties ; Demurrer difal-
lowed, for that the Executor
has the legal Title, and confe-
quently may fue for the E-
ftate. Tage 33

A Baftard dies Inteftate without
Wife or IfTue; the King is in-
titled, and the Ordinary of
Courfe grants Adminiftration
to the Patentee or Grantee of
the Crown. ibid.

A Church Leafe for three Lives
is granted to a Baftard and his
Heirs, who dies without IfTue
and Inteftate; ^. Shall this
Leafe go to the Adminiftrator
of the Baftard, or to the
Crown J or does it, not being
within the Statute of Frauds
and Perjuries, remain liable to
Occupancy at Common Law,
or is the Leffor intitled ? 3-:;,

. 34 (N)
In the Cafe of a Divorce a
Menjd & Tboro, Baron and
Feme live feparately, and the
Wife has a Child ; this is a
Baftard ; for the Court will
intend Obedience has been
paid to the Sentence during
this Time ; but if after a vo-
luntary Separation a Child is
born, it will be Legitimate,
unlefs the Jury find the Fluf-
band had, during that Time,
no Accefs to his Wife. 275

l?cnefit of Clctriyv.
Clergy*

See

XiII in e(ii\itiK

ff/jo mujl be Parties. See JPar^^
Bill to perpetuate Tejlimony. See

€iiiOencc*

In what Cafes a Bill is or is not

proper.

A Bill will not lie for a Tenant
to be relieved out of the Ar-
rears of Rent, for the Taxes
which the Tenant had paid
on Account of Rent referved
to a Charity, that appeared
to be exempted from Taxes.
Page 128 (N)

So where one had an annual
Payment fecured on Land,
which Annuity was held lia-
ble to anfwer Taxes in Pro-
portion as the Land paid ; it
was held a Bill would not lie
to make the Annuitant refund
in Refpedt of the Payments
flie had received Tax free, and
for which the Party paying
had omitted to dedudl. ibid. (N)

A Bill is brought by a Lord of
a Manor to recover a Fine for
a Copyhold, on a Suggeftion
that the Defendant was ad-
mitted by Attorney, but fome-
times pretends the Attorney
had no Authority to make
fuch Admittance ; the Defen-
dant anfwers as to Part, but
demurs as to Relief; De-
murrer allowed. 148

Lord brings a Bill againft a Te-
nant to recover a Quit-Rent,
alleging that the Land out of

which

A Ta b l E of the Principal Matters

which the Quit-Rent ilTues,
by Realbn of the Unity of
rolTcirion with other Lands,
is not known ; the Defendant
anfvvers as to Difcovery, and
demurs as to ReUef j the De-
murrer allowed. P^^^ 149
^cere tamen.

A fingle Copyholder is not re-
lievable in Equity for an ex-
ceffive Fine j (that being de-
terminable by a Jury) but, to
avoid Multiplicity of Suits, fe-
veral Copyholders may join to
be relieved again ft: a general
Fine that is exceflive. i ^j

A Bill lies to compel a fpecifick
Performance of an Award to
convey an Eft:ate, where the
Party fubmitting has received
the Money, in Confideration
whereof he is to convey the
Eftatc fued for. 187

Where the Hufband, for a valu-
able Confideration, covenants
that his Wife fliall join with
him in a Fine ; this Court
will enforce a Performance of
fuch Covenant. 189

Difference between Awards to
pay Money, and to do any
Thing Collateral ; and why a
Bill in Equity may be proper
only to compel a Performance
of the latter. 190

Though a Bill in Equity lies to
recover a fmall Quit-Rent, yet
it ought to appear that the
Plaintiff has no Remedy for
the fame at Law; as where
the Lands out of which it is
claimed are uncertain, or the
Days on which the fame is
payable, are uncertain alfo.
256, 257

Lord of a Manor brings a Bill
againft: a Tenant to hold a
Down belonging to the Ma-
nor, difcharged of a Right of
Common thereto ; this an im«
proper Bill, in Regard the
Plaintiff may by the fame
Reafon bring a feparate Bill a-
gainft: every Tenant of his
Manor making the like Claim.

A Bill in Equity lies not to com-
pel the Performance of an A-
greement to pay Money ia
Confideration of having flifled
a Profecution for Felony ; fe"
ci/s, if to flop a Profecution
at Law for a Fraud. 279

Where a Title depends on the
Words of a Will ; this is as
properly determinable in E-
quity as by a Judge and Jury
at Niji prills. 296

A Bill will lie to fecure the Be-
nefit of a contingent Intereft
devifed over ; and in fuch
Cafe the Cofts fliall be paid
out of the Affets of the Tefta-
tor, who by his Will has oc-
cafioned the DifHculty. 303

The Bill charged, by way of A-
mendment. Matters which a-
rofe after the filing of the
Bill ; and held this might be
done either by way of Supple-
ment or Amendment. rt^^i

A Bill lies to compel the Deli-
very of an Altar Piece, or o-
ther Curiolity, in Specie. 390

contained in the Third Volume.

In 'what Cafe 'Equity "mil or ivill
not grant Relief on Motion or
Petition, a fid if he re it will
put the Party to bring his Bill.

A Decree gained by Fraud may
be fet afide by Petition. Page

1 1 1

The Right of Guardianfliip of a
Child is not to be determined
in fo fummary a Way as on
Petition, and without a Bill,
any more than the Court on
a bare Petition could order a
Truftee to deliver over PolTef-
fion of the Trufl Eftate to the
Ce/luy que Tniji. By the Lord
King. 1 54

Quaere tamen ; a7id fee the
Cafe of Mr. J. Eyre -jcrfus
The Countefs of Shaftfbury,
and the Precedents there cited,
Vol.2. 1 1 8.

Bill amended and fuppletnental.

See gmcnnment.

Bill of Revivor. See alfo ^:

Ijatcmcnt*

If the Defendant's Time for an-
fwering be out, the Court w^ill
order Proceedings to be re-
vived. So though the Defen-
dant by his Anfwer infifts that
the Plaintiff is not intitled to
revive j for this ought to be
fliewn either by Plea or De-
murrer ; but if in filch Cafe it
appears that the Plaintiff had
no Title to revive, he cannot
have a Decree. 348

Vol. III.

Bill of Review.

If a Decree be obtained, and in-
rolled, fo that the Caufe can-
not be reheard, then there is
no Remedy but by Bill of
Review, which muft be on
Error appearing on the Face
of the Decree, or on Matter
fubfequent thereto, as a Re-
leafe, or a Receipt difcovered
fincci P^g^ 371

Bill to examine Witnejfes in per-
petuam rei memoriam. See

Lis pCiMens.

Ads of the Court, as the Com-
mitment of a Wardlhip, and
in a Caufe then depending, to
be taken Notice of by every
one at his Peril, in the fame
Manner as a Lis pendens. 117,

343

55olij^ politic. Sec Co^po2a=
tioiu

yl. treats for the Marriage of his
Son, and in the Settlement on
the Son there is a Power re-
ferved to the Father to join-
ture any Wife whom he fliall
marry, in 200 /. per Annuniy
paying 1000/. to the Son.
The Father treating about
marrying a fecond Wife, the
6 S Son

A Ta b l e of the Principal Matters

Son agrees with the fecond
Wife's Relations to releafe the
looo/. and does releafe it, but
takes a private Bond from the
Father for the Payment of
this looo/. Equity will not
fet afide this Bond, becaufe it
would be injurious to the firft
Marriage, which being prior
in Time is to be preferred.

^age 66

A Father intrufts his Heir appa-
rent, then an Infant, to the
Care of a Servant ; the Heir
comes of Age ; the Servant
takes a Bond from the Heir,
which Bond is fecreted from
the Father, and the Heir has
not wherewithal to pay the
Bond ; Equity will fet alide
the B.)nd as obtained by Fraud
and a Breach of Truft. 129

But where a weak Man gives a
Bond ; if it be attended with
jio Fraud or Breach of Truft,
Equity will not fet afide the
Bond only for the Weaknefs
of the Obligor, if he be com-
pos ment'n. 130

The having been in Drink, is not
any Reafon to relieve a Man
againft any [Bond or] Deed
or Agreement gained from him
when in thofe Circumflances;
for this were to incourage
Drunkennefs ; Jcciis, if thro'
the Management or Contri-
vance of him who gained the
Bond, CSc. the Party from
whom it was gained, was
drawn in to drink, ibid. (N)

Any voluntary Bond is good a-
gainft the Executor, though
to be poftponed to a limple
Contradt Debt. 222

A Bond is, prima facie, good
Evidence of a Debt ; but in
Cafe Fraud appears, the Obli-
gee ought to prove adual
Payment of the Confideration.
Page 289

One being cauglit in Bed with
another's Wife, gave the Huf-
band who caught him, and was
about to kill him, a Note for
1 00 /. payable at a certain
Time. After which the Mo-
ney growing due, he who
gave the Note, excufing Pay-
ment, gave his Bond for the
Money ; had the Matter refl-
ed folely on the Note which
was thus gained by a Man
armed from one naked, and
by Durefs, (notwithftanding
it happened to be given in Sa-
tisfadion for the greateft In-
jury) Equity would have re-
lieved ; but when the Party
had afterwards cooly, and
without any Pretence of Fear,
Gfc". entered into a Bond tp
the Huiband, he thereby him-
felf afcertained the Damages,
and was not intitled to Relief,

294 (N)

yj. havins; a Wife who lived fe-
parate from him, afterwards
courted and married another
Woman who knew nothing
of the former Wife's beins:
alive ; but this being difcover-
ed to the fecond Wife, A. in
order to prevail on her to flay
Vvith him, gave a Bond to her
Truftee to leave her 1000/.
at his Death, and afterwards
died, not leaving AfTets to pay
his limple Contradl Debts ;
had this Bond been given im-
mediately on the Difcovery,

and

contained in the Third Volume.

and they had parted there-
upon, the Bond had been
good ; or had it been given
to the lecond Wife as a Re-
compence for the Injury done
her, and flie had upon that
left him ; but in Regard it
was given after the fecond
Wife knew the former was
living, this was decreed to be
worfe than a voluntary Bond,
becaufe given on an unlawful
Confideration, and to be poft-
poned to Debts by fimple Con-
trad;. _ _ P.?^^339, 340

A Bond is given to B. in Truft
for A. who dies ; the Money
due on the Bond fliall be paid
in a Courfe oi Adminiflra-
tion. 342

There cannot be a Gift of a
Bond by way of Donatio cau-
Ja mortis, it being merely a
Chofe en ABion, that will not
pafs by the Delivery, but muft
be fued in the Name of the
Executor. 358

A. by his Intereft with the Com-
miflioners of Excife, gets an
Office in that Branch of the
Revenue for B. who in Con-
fideration thereof gives a Bond
to A. to pay him 10/. per
Anmmi as long as B. enjoys
the Place ; Equity will relieve

391

again ft the Bond.

ciiffc. See ^Sarnaije*

Where Lands of the Nature of
Borough E?iglifi are in Settle-
ment, the unlettled Reverfion

continues as Part of the old
Eftate, and fliall defcend in
Borough Eng/i/Jj as before.

Page 63

'B^oUcr^* See jfaaoje,
'Bucnino; in tljc rpniiu. See

Caption of a IFinc* See fine*

Certainty*

WHERE a Party charges
his Adverfary with any
Thing Criminal, it ought to
be fhewn with great Plainnefs

and Certainty.

276

Certificate of 'Banlu-uptsf, "See
Xanltvuptis,

Cei'tificate of tlje Cuffom of
lonoon bp tljc Reco?5ci%

See JLoiltlOlU

Certificate (0? IRepo?t) of a
ii9aftec in Cljancerp. See
f^after'f; l^epo^t.

Certiorari. See mnt$.

LojB CljanceUo? 0? lo?ti fixcep-

Cl\ See more Tit. Court Of

Cfjancerp, and lurieDiaioiu

Lord Chancellor or Lord Keeper
determines in Matters relating
to Ideocy or Lunacy, not as
Chancellor, cfc. but by Vir-
tue

•' 'i ' * • !>

A Ta b l e of the Principal Matters

tue of a Royal Sign Manual.
Page 1 08 (N)

Cfiatftp anti C&nritnMc afc0»

See ahb ]pQO|*

One feifed in Fee of a Manor
grants a Rent in Fee out of it
to a Charity for the Support
of feveral pcor Perfons, and
afterwards grants the Manor
to y. S. in Fee j the Nomi-
nation of the poor Perfons be-
longs to the Heir of the
Grantor, and does not go with
the Manor. 145

A Man founds a Charity for
Alms-Houfes ; the Founder
has a Right of Nomination
of thefe Alms -People, but
may forfeit it by a corrupt or
improper Nomination of fuch
as are not fit Objedls of the
Charity, or by making no
Nomination at all j but this
Negledt of Nomination muft
be after fuch Time as the
Founder, Gf<r. have had No-
tice of the Vacancy, and with-
out Proof of fuch Notice, it
is no Fault. 146 (N)

Charity to thofe Perfons that are
commonly called Diflenting
Minifters, good. 346

€f)iHi. See iFatftei* aiiU Cfjiin.

The Father the only Judge of
what is a proper Advance-
ment for his Child. 285

tIjcreof»

By the ancient Common Law
of England^ whoever had ab-
jured the Kingdom on Ac-
count of Felony committed
by him, if he did not depart
ftraightway, or being gone,
did return without Licence,
he had Judgment to be hang-
ed, except he was a Clerk,
and then he had his Clergy.
P^^^39(N)

\n Cafes within Benefit of Cler-
gy, the Statute of 5 Annce
takes away Reading, and pro-
vides that the Party fhall be
puniflied as a Clerk convid.

443
The Ordinary never aded as a

Judge, but as a Minifler on-
ly, on the Allowance of
Clergy. 444

What is meant by a Clerk con-
vidl, and how fuch a one is
to be punifhed by 18 Eliz.

ibid.

The Original of Benefit of Cler-
gy, the Manner of Trial of
Clerks convidt before the Or-
dinary, together with the ill
Confequences attending it. 447

The Advantages that accrued to
the Party, in Cafe upon the
Trial he was found Not
guilty. 448

What were the Confequences of
delivering over a Clerk con-
vidl to the Ordinary cihfqne
purgationc faciendd. ibid.

Purgation taken away by 1 8 El.
but the Offender liable to be
continued in Prifon for any

Time

contained in the Third Volume.

Time not exceeding a Yenr,
if the Judge who tried him
thinks fit. Page 449

How the Words of 18 Eliz.
which exprefs nothing of a
Pardon, came to be conftrued
as fuch. 450

Burning in the Hand where the
Offender is admitted to his
Clergy, notwithflanding what
is afferted by the Lord Coke to
the contrary, is Part of the
Judgment, as appears from
Cotemporary Reporters, as al-
fo from later Authorities. 45 1

In what Cafes the Statute of
4 Geo. I. cap. 9. in the Room
of Burning in the Hand, fub-
flitutes Tranfportation j and
how the latter is to be under-
ftood by way of Condition
precedent to a Statute Pardon,
in like Manner as the former
was by 18 Eliz. 459

By 18 Eliz. cap. 7. a6laal Burn-
ing in the Hand, as well as
the Allowance of Clergy, was
necelfary to difchargc the Pri-
foner from Felony; and there-
fore, if before 4 Geo. i. cap.
II. an Offender, after Clergy
allowed, had efcaped before he
had been burnt in the Hand,
he would have continued a
Felon ; and a Stranger by un-
lawfully receiving him, ^c.
might have become AccefTary
to his Felony after the Fatt,

487

Where, by the Delay or Doubt
of the Court, a Prifoner con-
vidled of ManfluuQ-hter has
no Opportunity of demanding
his Clergy, or if he has de-
manded it, and the Court
fliould make no Recoid oi it ;
Vol. III.

this, on its being pleaded and
fliewn fpccially, fliall not
turn to the Prejudice of the
Prifoner. -F*<^^^ 489

Alterations made by 4 Geo. \.
cap. II. for Tranfportation of
Felons, whereby the Judg-
ment of Tranfportation, with
Regard to Perfons convidted
of Clergyable Felonies, is
plainly and clearly put only
in the Place of the Judgment
for Burning in the Hand, not:
in the Place of adual Burn-
ing, ibid.

Commiirjon. See alfo Dcpo*
fitioii, €,i-amination3 C<tlit==
nef0*

A Commiirion being granted to
examine Witneffcs at Algiers^
the Plaintiff died, by which,
in Stridtnefs, the Suit abated^
but the Witneffes were ex-
amined there before Notice
given to the Commiflioners or
Witneffes of the Plaintiff's
Death ; the Examination held
regular, though one of the
Witneffes was yet living. 195

Witneffes examined in a Com-
miffion after the Demife of
the Crown, but before Notice
thereof, to be indifted of Per-
jury, if they fwear falfe. 196

After the Defendant has been
examined on Interrogatories,
and Publication palfed, the
Plaintiff ought not to have
a Commifllon to examine
Witneffes in order to fallify
the Defendant's Examination;
this tending to multiply Caufcs,
and to make them endlefs. 4 1 3
6 T CaiM'

A Ta b l e 0/ the Principal Matters

Committee. See locot.

Common Eccotjerp. See aac=
coucrp.

Common Seal. See Co?po=
tation.

Common.

Lord of a Manor cannot bring a
Bill againft a Tenant, to the
End that he may hold a Down
belonging to the Manor dil-
charged of the Tenant's Right
of Common therein. Page 2 ^j

'Tenancy in Common. See Joillt-

tenantsi anU Cenant^ \\\
Common.

Company o? TSotip i^oliticlt.
See Co?po2ation ^gsccgatc.

Compos mentis.

Where a Bill is brought to prove

a Will of Land, the Sanity of

the Teftator is to be proved ;

/ecus of a Deed of Truft to

pay Debts. 93

No fuch Thing as Non compos in
Equity, \i compos at Law. 130

CompoGtton. See alfo j:)tU^,

Though, generally fpeaking, an
Executor or Truftee com-
pounding or rcleafing a Debt,
muft anfwer for the fame ;
yet if it appears to be for the
Benefit of the Truft Eftate, it
isaaExcufe. 381

If an Executor, Mortgagee,
Guardian, or any one who is
confidered as a Truftee, com-
pounds Debts, it fliall be for
the Benefit of the Ccjluy que
Irujl. Page 251,252 (N)

Concealment, Coliin, CoilU'
fion.

In what Manner a Party re-
leafing his Right ought to be
informed of his Right, fo as
to be bound by fuch Releafe.

321

ConcluOon. See Cffoppel.

ConUition.

What is a Performance oj a Coa^
dition.

Devife of a Legacy to a Feme,
on Condition that Ihe marry
a Man of the Name of Bar-
loiv. A. takes upon him the
Name of Barlow^ and the
Feme marries him ; this is a
Performance of the Condition,
and Equity will not decree
the Huiband to retain that
Name. 65

At Common Law% and before the
Statute De donis, when a Man
had devifed Lands to one and
the Heirs of his Body ; this
was a conditional Fee, and the.
Pofiibility of Reverter expec-
tant thereon could not be li-
mited over. 263 (N)

Condition

Contained in the Third Volume.

Condition brokeni

A Corporation Aggregate cannot
without their common Seal
impower their Servant or A-
trent to enter for a Condition

broken;

Page 425

Condition precedent.

In what Cafes the Statute of
4 G(?o. I. cap. 9. in the Room
of Burning in the Fland fub-
flitutes Tranfportation for
feven Years, and how the
latter is to be underftood by
way of Condition predecent
to a Statute Pardon, in like
Manner as the former was by
18 Eliz. 459

Condition fubfequent.

An Attornment could not be on
a Condition fubfequent, for in
fuch Cafe the Attornment
would be good, and the Con-
dition void. 426

Condition or Covenant broken,
and how far relievable.

Thouph ordinarily where the
Hi. (band, for a valuable Con-
fideration, covenants that his

• Wife {hall join with him in a
Fine, Equity will inforce a
Performance of fuch Cove-
nant ; yet if it can be made
appear to have been impoffible
for the Hulband to perform

the Agreement, by procuring
the Concurrence of the Wife ;
as fuppofe there are Diffe-
rences between them ; and the
Hufband offers to return all
the Money with Intereft and
Cofts; ^. If under thefe Cir-
cumftances the Court would
not difcharge the Hufband.
from the Agreement ? Page

189 (N)

Confcnt See Mtwx.

GTonfiticration unlaUifuL

jl. having a Wife who lived fe~
parate from him, afterwards
courted and married another
Woman who knew nothing
of the former Wife's being a-
live ; but it being difcovered
to the fecond Wife that the
former was living, A. in or-
der to prevail on the fecond
Wife to flay with him, fome
Years afterwards gave a Bond
in Trufl to leave the fecond
Wife •1000/. at his Death,
and died, not leaving Affets
to pay his fmiple Contract
Debts ; if the Bond had been
given immediately on the Dif-
covery, or as a Recompence
for the Injury done to the fe-
cond Wife, and thereupon
they had parted, it had been
good ; but being given on fuch
an illicit Confideration, as
that of her hving in Adultery
with A. it was worfe than a
voluntary Bond, and pofl-
poned to Debts by funple
Contraft. 339, 340

Contempt*

A Ta b l E of the Principal Matters

Contempt. See alfo JlljimgiOll
and IB^OCCfjEj.

Marrying an Infant Ward of the
Court is a Contempt, though
the Parties concerned in fuch
Marriage had no Notice that
the Infant was a Ward of the
Court. Page ii6

So where one not a Freeman of
London, married a City Or-
phan ; though it did not ap-
pear that the Party had any
Notice of his Wife's beins: a
City Orphan, it was held he
was punirtiable by the Court
of Orphans, ii8(N)

Though the Father has a Right
to the Guardianfliip of his
own Children, and, if he can
any way gain the Cuftody of
them, is at Liberty fo to do,
j)rovided no Breach of the
Peace is made in fuch an At-
tempt, yet it will be a Coq-
tempt in him, and much more
in any other Perfon offering
to take them when "^oing to
or returning from the Court
of Chancery. 154, 155

Cautingcnt Jntcceft. See alfo
Pombtlitp.

A contingent Intercfl: or Pofli-
bility in a Bankrupt is aflign-
able by the Commiflioncrs.

132

A Bill will lie to fecure and
have the Benefit of a contin-
gent Intereft. 303

Continjjcnt Ecmnin5cr£i. See

'Tritftfus for prr/erving contin-
gent Renmin tiers.

Contvibutioit* See aijcragc.
Conucpance. See 2?ccDsj,

. CoppljoID.

A. is a Copyholder in Tail, the
Lord grants the Freehold of
the Copyhold to him in Fee ;
the Copyhold, though intail-
ed, is extinft. P'^g^ 9

^are ant em, \i A. be a Copy-
holder in Tail, Remainder to
B. m Fee, and A. takes a
Grant of the Freehold from
the Lord to him and his Heirs,
and dies without Iffue; is not
B. in whom there was once
a vefted Remainder in Fee of
the Copyhold PremilTes, inti-
tled to the fame ? 10 (N)

One by Will charges all his
worldly Eftate with his Debts,
and dies feifed of Freehold
and Copyhold Eftates, which
he particularly difpofes of by
his Will ; the Copyhold, tho'
not furrendered to the Ule of
the Will, fliall yet be applied
to the Payment of the Debts,
pari pafju with the Freehold.

Where one by Will charges his
Copyhold Land with the Pay-
ment of his Debts, Equity
will, in Cafe the Teftator
dies without having furrender-
ed his Copyhold to the Ufe
of the Will, fupply the want
of a Surrender , but if it be

but

contained in the Third Volume.

but an equitable Charge, fo
that the legal Eftate of the
Premiffes defcends to the Heir,
it feemb that the Creditors, in
a Bill brought by them In or-
der to compel a Sale for Pay-
ment of their Debts, {hould
make the Heir a Party ; o-
thcrwife the legal Eftate of
the Copyhold cannot be con-
veyed to a Purchafer ; though
if it appears that the Heir at
Law has, fince the Death of
his Anceftor, conveyed away
all the Copyhold Eftate, in
fuch Cafe the Grantee of the
Heir being capable of convey-
ing to the Purchafer, it may
not be neceflary to make the
lieir a Party. Page 97 (N)

A Bill is brought by a Lord of a
Manor to recover a Fine for a
Copyhold, on a Suggeftion that
the Defendant was admitted
by Attorney, but fometimes
pretends the Attorney had no
Authority to take fuch Ad-
mittance} the Defendant an-
fwers as to Part, but demurs
as to Relief; the Demurrer
held good. 151

A finglc Copyholder is not re-
lievable in Equity for an ex-
ceflive Fine, becaufe this is
determinable at Law ; but to
avoid Multiplicity of Suits,
feveral Copyholders may join
to be relieved againft a genbral
Fine that is exccflive. ' 155

If a Copyhold be devifed to a
younger Child, and no Sur-
render to the Ufe of the Will,
though by the fame Will there
be other Provifion made for
the Child, yet fuch Copyhold
being Part of the Provifion,
Vol. m.

the Court will make it good,
unlefs in a Cafe where the
eldeft Son and Heir is totally
difinherited ; and though the
Devife be of a Copyhold to a
fecond Son after the Death of
the eldeft Son without Iflue,
Equity will fupply the want
of a Surrender. Fage 283

If I have Freehold Lands and
Copyhold Lands in Dale, and
devife all my Lands and He-
reditaments in Dale to pay
my Debts ; only my Freehold
(hall pafs, if that be fufficientj
Jean, if I have furrendered the
Copyhold to the Ufe of my
Will, 322

An Equity of Redemption of a
Copyhold may be devifed
without being furrendered to
the Ufe of one's Will, 358

Coroner*

By the ancient Common Law of
England, when any one was
about to abjure the Realm for
Felony, he might within 40
Days confefs the Felony, and
take an Oath to abjure the
Realm, before the Coroner,
who within 40 Days from
that Time afligned him fuch
a Port as he chofe, for his De-
parture out of the Kingdom.
38.39(N)

Where the Sheriff is a Party, or
otherwife incapacitated, the
Coroner is the .proper Officer
to whom all Procefs is to be
diredied. 5 5

6 U

Cto?pa»

^ Ta B L E of the Principal Matters

Composition 9n;t!:i-c0atc o?
Companp.

In the Cafe of the South-Sea
Company, in whom the E-
flates of the late Direftors are
vefted by Adt of Parliament ;
where the Statute of Limi-
tations was pleadable againft
the late Directors, it is alfo
pleadable againft the Com-
pany, who ftand but in fuch
Direftors Place. P^g^ 143

A Corporation Aggregate fliall
have the Benefit of the Sta-
tute of Limitations, as well as
any private Perfon. 310

The Secretary and Book-keeper
of the Edjl-Jjidia Company
were made Defendants to a
Bill for Difcovery of fome
Entries and Orders of the
Company; the Defendants de-
murred, for that they might
be examined as Witneffes; al-
fo becaufe their Anfwer could
rot be read againft the Com-
pany ; the Demurrer over-ru-
led, left there ftiould be a Fai-
lure of Juftice, in Regard the
Company are not liable to a
Profccution for Perjury, tho'
their Anfwer be never fo falfe.

ibid.

One with Lemon Juice takes out
a Receipt written on the In-
fide of a Bank Note, but di-
ed an Indorfement ; this held
to be a Rafing an Indorfement

within 8 & (^ U\ 2,- ^^P- ^9-
and to be Felony without
Clergy. 419

A Corporation Aggregate cannot
anfwer but under their com-
mon Seal. 42^

A Corporation Aggregate can do
nothing of. Confequence, or
that is not an ordinary Ser-
vice, without Deed. Page /\.2 2

Cannot witliout Deed impower
a third Perfon to feife Goods
for their Ufe as forfeited. 424

Nor to enter for Condition bro-
ken. 425

Nor to make an Attornment.

426

Coff^»

Where one that fues both at
Law and in Equity for the
fame Thing, on being put to
make his Eledlion, chufes to
proceed at Law, his Bill is to
be difmift with Cofts. So
alfo where one makes a fpe-
cial Ele(5lion to proceed at
Law as to Part, and in Equity
as to other Part, with Re-
gard to what the Plaintiff e-
ledts to proceed at Law, his
Bill is to be difmift with Cofts.

90 (N)

A bare Truftee is a good Wit-
nefs for his Cejhiy que Truft ;
but not an Executor in Truft,
as he is liable to be fued by
Creditors, and to anfwer
Cofts. 181

One ought not to be condemned
to pay Cofts in this Court for
infifting on a Right which
the Law gives him. 205

Where a Bill is brought to fe-
cure and have the Benefit of
a contingent Intereft devifed
over, the Cofts (hall be paid
out of the Aflets of the Tefta-
tor, who by his Will has oc-
cafioned the Difficulty. 303

contained in the Third Volume.

A Truftee mifbehaving himfelf,
ordered to pay Cofts out of
his own Pocket, and not out
of the Truft Eftate. Page^^^y

One may demur anew at the Bar
ore tenus, but then on the
Demurrer being allowed, he
cannot have his Cofls. 371

Not agreeable to the prefent
Pradtice to pay Cofts for a
new Demurrer infilled on at
the Bar ore tenus. ibid.

An Heir at Law is made a De-
fendant, and infifts on his Ti-
tle } he fhail have Cofts, tho'
it goes againft him : But if an
Heir at Law be Plaintiff, and
mifcanies in his Suit, he fliall
not have Cofts ; but, on his
Suit appearing to be ground-
.lefs, fliall pay Cofts. 373

Coljenant See 9ffitcmcnt.

Coucrtucc* See 15111:011 anu
IFeme*

Count?*

In an Indiftment againft one as
Acceffary after the Fadt, to a
Felony, by receiving, &c. the
Principal who was outlawed
or attainted in the fame Coun-
ty, it ought to appear that
the Party receiving, zSc. did
it fcietn or fcienter, other-
wife it will not amount to an
abfolute Prefumption, fo as
to excufe fuch Omiflion. 496

In Criminal Cafes, though the
County be in the Margin, yet
the Place where the Fadt is
fuppofed to be done muft be
hiid to be done in Com. pra-

diB. otherwife in Civil Cafes.
Page 496

COUttSi* See JUtllSllfcfiOlt*

Court of Chancery or Equity,

Court of Equity will inforce a
Diftribution of a Freehold E-
ftate, though the Spiritual
Court cannot. 102

A weak Man gives a Bond ; if
it be attended with no Fraud
or Breach of Truft, Equity
will not fet afide the Bond
only for the Weaknefs of the
Obligor, if he be Compos men-
tis ; neither will Equity mea-
fure Peoples Underftandings
or Capacities. 130

No fuch Thing as being Noti
compos in Equity, if compos at
Law. ibid.

Equity will not relieve a Man
againft any Deed or Agree-
ment gained from him v/hen
in Liquor, merely for that
Reafon, in Regard this were
to incourage Diunkennefs ; fe-
cus^ if through the Manage-
ment or Contrivance of him
who gained the Deed, {jfc . the
Party from whom it was gain-
ed, was drawn in to drink.
ibid. (N)
Heirs, even when of Age, are-
under the Care of a Court of
Equity, and then want it
moft, the Law taking care of
them till that Time. 131

Where A. is Tenant for Years,
Remainder to B. for Life,
Remainder to C. in Fee, and
A. is doing Wafte; B. though
he cannot bring Wafte, as not

having

A Ta b l e (?/ the Principal Matters

having the Inheritance, is yet
intitled to an Injundtion in
Equity. Page 268 (N)

Where Hufband and Wife fue
for a Legacy given to the
Wife ; Equity will not com-
pel the Payment of it, unlefs
the Hufband makes fome Set-
tlement on the Wife. 202

A good Rule in Equity, as well
as at Law, that where to a
Suit there are never fo many
Defendants, if the Plaintiff
cannot give Evidence againft
a Defendant, he may be call-
ed as a Witnefs for a Co- De-
fendant. 288

Where a Title depends upon the
Words of a Will, this is as
properly determinable in E-
quity, as by a Judge and Jury
at Nifi prius. 296

A Court of Equity delights to
do compleat Juftice, and not
by Halves : As to make a
Decree againft the Heir, and
leave him to profecute ano-
ther Suit againft the Execu-
tor ; wherefore in order to do
fuch compleat Juftice, where
both are liable to the Plain-
tiff's Demand, it requires that
both fhould be made Parties.

334
A Court of Equity endeavours

to prevent a Multiplicity of

Suits. 1 57>. 334

Matters of Fraud are cognifable

as well in Equity as at Law.

279

Churt of ChancerJ on the Pitty
Bag fide.

The Plaintiff gets Judgment in
2

the Petty Bag, after which he
is ftopped by an Injundtion.
The Year and Day pafs ; the
Plaintiff, though hindered by
the Injundion, yet cannot fue
out Execution without a Scire
Facias. Page 36

Court of King's BcJich.

One who had been a Prifoner in
Newgate for Debt, but fince
removed to the Fleet, is ex-
communicated ; the Court of
Chancery will not diredl the
Curfitor to make out a Writ
of Excomf/nifiicato Capiendo to
the Warden of the Fleet ; but
this Writ may be diredied to
the Sheriff, who may return
a Non ejl Inventus ; and on
this Return, the Court of
King's Bench may grant an
Habeas Corpus, and thereon
charge him with an Excom-
niutiicato Capiendo. 53

All Writs of Excommimicato Ca-
piendo muft be returnable in
the King's Bench. 55

A reafonable Practice in the
King's Bench, if nothing has
been offered, either by Thrcat-
ning or other Mift)ehaviour,
within a Year and a Day af-
ter the taking up of the Party,
by him or on his Behalf, that
he ought to be difcharged.

103
See more under the follow-
ing Title.

Court

contained in the Third Volume.

Court Spiritual, Ecclejiajlical or
Chrijiian.

The Spiritual Court cannot in-
force a Diftiibution of a Free-
hold Eftate, P<^g^ 1 02

One devifes the Surplus of his
Perfonal Eftate to his four
Executors ; though by the
Rule of the Spiritual Court
(which has a concurrent Ju-
rifdidtion in Cafes of Legacies)
Survivorfhip does not take
Place ; yet this coming into
Weftminjler-Hally muft be de-
termined according to the
Rules of the Common Law,
and on the Death of one of
the Legatees, fhall go to the
Survivors. 115

A' Leafe granted to one and his
Heirs . for three Lives, is a
Real Eftate ; and though by
the Statute of Frauds it is
made liable to Debts, yet it is
only fuch Debts as bind the
Heir ; and where the Spiri-
tual Court fet afide a Will,
difpofing Jointer al') of fuch
Eftate as revoked, this Sen-
tence held not to affed: the
Devife of fuch Real Eftate.

166

In the Spiritual Courts all Re-
ftraints on Marriage are void ;
the Rule there being, that
Maritagium debet ejfe liber um.

238

Difference of Opinion between
the Common Lawyers and the
Civilians in the Point, whe-
ther, where there are two
Executors, and one renounces,
he who renounced is ftill at
Vol. in.

Liberty to accept of the Exe-
cutorfliip ; or whether a Re-
nunciation once made, though
only by one of them, is pe-
remptory. Pifge 251 (N)

In the Cafe of a Divorce a Me?!-
J'd & Thoro, Baron and Feme
live feparately, and the Wife
has a Child ; this is a Baftard,
for the Court will intend Obe-
dience has been paid to the
Sentence during this Time.

275

The Spiritual Court has fome-
times refufed to grant the Pro-
bate of a Will to an Executor
of no Subftance, and who has
abfconded for Debt, unlefs he
would give Security for a due
Adminiftration of the AfTsts j
but in thefe Cafes the Court
of B. R, has inforced the
Granting of a Probate by a pe-
remptory Mandamus. 337 (N)

Court of Orphans.

One, not a Freeman of London,
married a City Orphan j and
though it did not appear that
the Party had any Notice of
his Wife's being a City Or-
phan ; yet it was held fuch
Perfon was punifliable by the
Court of Orphans. 1 1 8 (N)

Inferior Courts.

All Judgments, even in the in-
ferior Courts of Law, are to
be taken Notice of by Execu-
tors, fo that if they pay any
Bonds before fuch Judgments,
it is at their Peril. 117

6 X Courts

A Ta b l E 6?/ the Principal Matters

Courts foreign.

Adminiftration granted in a fo-
reign Court (as in Paris) not
taken Notice of in our Courts.
Page 371

Crouin. See pjctoffiititje*

%. If a Papifl may not be Te-
nant by the Curtefy, (not-
withftanding the 1 1 Gr 12 W.
3. made to prevent the Growth
of Popery) that Eflate being
caft on him by Adt of Law,
and not by Purchafe? 49 (N)

A Man may be Tenant by the
Curtefy of a Truft as well as
of a legal Eftate. 234

An Hufband does not forfeit his
Tenancy by the Curtefy on
leaving his Wife and living in
Adultery, as a Wife forfeits
her Dower by Elopement, &c.

276

CufiomiS of iLonUon* See
jtonQon*

2Dcl)t0, CrcOito? anti Debto?.

See alfo T^riijl for Paymetit of
Debts, under Tit. CrUll*

NE owes a Debt by fimple
Contradt. Six Years pafs,
whereby the Debt is barred ;
after which the Debtor by
Will charges his Lands with

the Payment of all his Debts,
and dies ; it feems this Debt is
revived, P^i^ 84

^. If a Man were to devife his
Perfonal Eftate to pay his
Debts, whether would this re-
vive a Debt barred by the Sta-
tute of Limitations ? 89 (N)

A Will begins, " As to all my
" worldly Eftate, my Debts
" being firft paid, I give, &c.
The Real Eftate is liable to
the Debts, nothing being de-
vifed till the Debts are paid.

9i>359
In a Devife of Lands to pay

Debts, if the Creditor brings

a Bill to compel a Sale, the

Heir is, generally, to be made

a Party ; fecus in the Cafe of

a Truft created by Deed to

pay Debts. 92

Where a Bill is brought to prove
a Will of Land, the Sanity of
the Teftator muft be proved ;
fecus in the Cafe of a Deed
of Truft to fell for Payment
of Debts. 93

One by Will charges all his
worldly Eftate with his Debts,
and dies feifed of Freehold
and Copyhold Eftates, which
he particularly difpofes of by
his Will ; the Copyhold, tho'
not furrendered to the Ufe of
the Will, ftiall yet be applied
to the Payment of Debts, pari
fafju with the Freehold. 96

If 1 charge all my Lands with
Payment of my Debts, and
devife Part to A. and other
Part to B. GV. the Creditors
cannot be paid out of the
Lands, till the Mafter has cer-
tified what the Proportion is,
which each is to contribute;

but

contained in the Third Volume.

but if the Mafter certifies that
the Debts will exhauft the
whole Real EftatCj then the
Creditors may proceed againfl:
any one Devifee for the
Whole. P^g^ 99

A Leafe granted to one and his
Heirs for three Lives, is a Real
Efliate ; and though by the
Statute of Frauds it is liable
to pay Debts, yet it is only
fuch Debts as bind the Heir.

166

A, lent Money on Bond to B.
who dying Inteftate, C. took
out Adminiftration to him ;
after which C. dying, A. took
out Adminiftration De bonis
non to B. in this Cafe A. it
was allowed, might out ot
the Affets of B. have retained
for fuch Bond Debt contract-
ed before he took out Admi-
niftration ; and though he hap-
pened to die before he made
any Eledlion in what parti-
cular EfFeds he would have
the Property altered ; yet as
the Court prefumed he would
have eleded that his own
Debts fliould be fiift paid,
therefore the Executors of A.
in accounting for the Aflets of
B. were permitted, on the
Account, to dedudl to the A-
mount of the Money lent by
A.toB. 184 (N)

A Bond or Mortgage is, prhnd
facie, a good Evidence of a
Debt ; but in Cafe Fraud ap-
pears, the Obligee, &c. ought
to prove adlual Payment. 289

Exprefs Words, or Words tan-
tamount, are requifite to ex-
empt the Perfonal Eftate from
Payment of Debts, that being

the natural Fund for that Pur-
pofe. Page 325, 333 (N)

An Hufband voluntarily, and
after Marriage, allows the
Wife, for her feparate Ule,
to make Profit of all Butter,
Eggs, Pigs, Poultry and Fruit,
beyond what is ufed in the
Family ; out of which the
Wife faves loo/. which the
Hufband borrows, and dies ;
Equity will allow this Agree-
ment to encourage the Wife's
Frugality, and flie fliall come
in as a Creditor for this 100/.
efpecially there being no De-
fed: of Aflets to pay Debts.

337
Every Mortgage^ though there

be no Covenant or Bond to
pay the Monty, implies a
Loan, and every Loan implies
a Debt ; therefore an Heir of
a Mortgagor fliall compel an
Application of the Perfonal
Eftate to pay off a Mortgage,
though there was no Cove-
nant, &c. from the Mortga-

go''- 35S

The Order and Priority in •which
Debts are to be paid. See
alfo more Tit. JJlTctSt*

Any voluntary Bond good a-
gainft the Executor, though
to be poftponed to a fimple
Contradt Debt, 222

All Judgments, even in the in-
ferior Courts of Law, are to
be taken Notice of by Exe-
cutors, fo that if they pay any
Bonds before fuch Judgments,
it is at their Peril. 1 17

A Ta B l E of the Principal Matters

A. who had a Wife that lived
feparate from him, afterwards
cc'Urtcd and married another
Woman, who knew nothing
cf the former Wife's being a-
live ; but it being difcovered
to the fecond Wife that the
former was Uving, A. in or-
der to prevail on the fecond
Wife to ftay with him, g.wc
a Bond to a Truftee of the
fecond Wife, to leave her
looo/. at his Death, arjd
died, not leaving Affets "o p;.y
his fimple Contrad: Debts ;
this Bond being given on fuch
an illicit Confideration, was
held to be worfe than a vo-
luntary Bond, and, there be-
ing a Deficiency of AlVets, to
be poftponed to all the fimple
Contrad Dtbts. Fage 340

One pofllfired of a Term for
1000 Years, articles to pur-
chafe the Inheritance, and by
Will gives 3000 /. to his
Daughter, and makes his Son
Executor, and dies ; the Son
afilgns the Term in Truft to
attend the Inheritance, of
which he takes a Conveyance
in his own Name. After-
wards the Son acknowledges
a Judgment to A. and njort-
gages the fame Lands to B.
and dies Infolvent ; A. fhall
be firft paid his Judgment,
then B. fliall be paid his
Mortgage ; after which, the
Daughter (being Adminiilra-
trix to her Brother) is intitlcd
to her Legacy of 3000 /. in
Preference to the fimple Con-
trad Creditors. 328

A. owes Money by feveral Judg-
ments and Bonds, and dies
I

Inteftate. His Adminiftrator
pays the Judgments and fome
of the Bonds, and pays more
than the Perfonal Eftate comes
to ; what the Adminiftrator
paid on the Judgments muft:
be allowed him j but as to
what he paid on the Bonds,
he mult come in pro rata
with the other Bond Creditors
out of the Real Affets. Fage

400
A Debt due by a Decree of the
Court of Chancery is equal
to one due by a Judgment at
Law ; and where an Execu-
trix of A. who was greatly
indebted to divers Perfons in
Debts of different Natures,
being fued in Chancery by
fome of them, appeared and
anfwered immediately, admit-
ting their Demands, (fome of
the Plaintiffs being her own
Daughters ;) and others of the
Ct editors fued the Executrix
at Law, where the Decree not
being pleadable, they obtain-
ed Judgments J yet the Decree
of the Court of Chancery, be-
ing for a iuft Debt, and ha-
ving a real Priority in Point
of Time, not by Fidion and
Relation to the firft Day of
Term, was preferred, in the
Order of Payment, to the
Judgments, and the Executrix
proteded and indemnified in
paying a due Obedience to
fuch Decree, and all Proceed-
ings againft her ftayed by In-
jundion. 401, 402 (N)

Sheerer,

contained in the Third Volume.

The Court will not without Dif-
ficulty fct afide a Security
made under a Decree, and ap-
proved of by the Mafter.

Page 8

No Appeal lies from a Decree or
Order of the Lord Chancellor
or Lord Keeper in Cafes of
Ideocy or Lunacy, but to the
King in Council. io8

A Decree gained by Fraud may
be fet afide by Petition, as a
Judgment at Law by Mo-
tion ; a fortiori may fuch De-
cree be fet afide by Bill. 1 1 1

If a Feme has a Decree to hold
and enjoy Lands until a Debt
due to her is paid, and (lie is
in PofiTefilon under this De-
cree, and marries ; the Huf-
band may affign fuch Intereft,
for it is in Nature of an Ex-
tent. 200

A Truft Eftate was decreed to

be fold for the Payment of

Debts and Legacies, and to

be fold to the beft Purchafer.

jd. articles to buy the Eftate

of the Truftecs, and brings a

Bill againft them to perform

the Contrad ; the Truftees

difclofe this Matter; the Court

will make no new Decree,

but leave the former Decree

to be purfued. 282

No one need be made a Party,

againft whom, if brought to

a Hearing, the Plaintiff can

have no Decree. 3 1 1 (N)

In Cafe of a Decree of Fore-

clofure againft an Infant, tho'

the Infant has fix Months af-

VoL. IIL

ter he comes of Age, to flievv
Caufe, &c. yet he will only
be admitted to ihew Errors in
the Decree, not to ravel into
the Account, nor to redeem.

If a Decree be obtained and in-
rolled, fo that the Caufe can-
not be reheard, then there is
no Remedy but by Bill of Re-
view, which muft be on Er-
ror appearing on the Face of
the Decree, or on Matter fub-
fequent thereto, as a Releafe,
or a Receipt difcover'd fince.

371
A Decree is equal to a Judg-
ment at Law ; and where in
Obedience to a Decree a De-
fendant Executrix had paid
away Afiets to feme Credi-
tors, after which other Cre-
ditors obtained Judgments at
Law againft her, to which
the Decree was not pleadable ;
the Court of Chancery pro-
ted:ed the Executrix in paying
Obedience to the Decree,
401, 402 (N)

DecBjj, atltitintys nun €ou=
uepanceis, &c.

The Defendant's Witnefs proves
a Deed, and refers to it in his
Depofition ; the Plaintiff can-
not compel the Defendant to
produce the Deed at the Hear-
ing, the Reference thereto not
making it Part of the Depo-
fition. 35
Sed %<?r. G? 'oide 364
The Court never orders a Will
to be proved viva voce at the
Hearing, as they do a Deed. 93
6 y Though

A Ta b l E 0/ the Principal Matters

Though it be proper to prove a
Will in Equity, yet it is not
abfolutely necelTary fo to do,
any more than it is to prove
a Deed in Equity, Vage 192

The bare Sealing a Deed with-
out any Covenant from the
Party fo fealing, ^c. not ef-
fedual to declare the Ufes of
a Recovery, nor to transfer
any Right. 206

See alfo 210 (N)

Where there is a fubfequent
Mortgagee without Notice,
who has Poffeffion of the Ti-
tle Deeds, the firft Mortgagee
fhall not compel a Delivery
of the Writings from him,
without paying him his Mort-
gage Money. 280

The firft Mortgagee permits the
Mortgagor to keep the Title
Deeds, and the Mortgagor
fhewing a fair Title, mortgages
the Premifl'es to a fecond
Mortgagee, to whom he de-
livers the Deeds ; the firft
Mortgagee is Acceflary to the
drawing in of the fecond. 281

Bat a flight Equity for an Heir
to fay he wants the Writings,
unlefs he claims under fome
Deed of In tail concealed from
him by the Defendant. 296

Where a fubfequent Conveyance
does not revoke a Will. 346

The Plaintiff" claimed by Virtue
of a Remainder in Tail ex-
peftant on Tenant in Tail's
dying without Iffiie, and was
the Heir Male of the Family.
The Defendants were Sifters
and Heirs general of the Te-
nant in Tail, and by their
Anfwer fliewed that their
Brother, the Tenant in Tail,

fufFered a Recovery, declarins:
the Ufe to himfelf in Fee,
and refer to the Deeds in their
Cuftody ; the Court ordered,
before the Hearing, the De-
fendants to leave with their
Clerk in Court the Deeds
making the Tenant to the
Pracipe, and leading the Ufes
of the Recovery. P^^'ge 363

Deeds obtabied through Fraud or

Breach of Truft.

See Tit.

Deeds to lead the Ufes of Fines
and Recoveries. See jflltC and

Defcntiant0, See alfo |0artic55'.

If there be never fo many De-
fendants to a Bill, if the Plain-
tiff' cannot give Evidence to
affcd a Defendant, he fhall
be admitted as a Witnefs for a
Co-Defendant. 2SS

Why the Anfwer of one Defen-
dant cannot be made ufe of
againft another. 311 (N)

Dcmife \z Eop»

WitnefTes examined in a Com-
miffion after the Demife of
the Crown, but before No-
tice thereof, liable to be in-
didcd for Perjury, if they
fwear falfe. 196

See I Annae, ftat. i. cap. 8. feft.
5. ivhereby this Matter is now
put out of Difpute, it being by
that Ah provided, inter al',
" That no Commif^on or Fro-
" ceedings

contained in the Third Volume.

'* ceedingi {[fuing out of any

" Court of Equity Jhall be dij-

" continued by the Death of

" her Majefiy^ or any King

" or ^een."

■ Dcmuritr.

A Defendant cannot demur and
plead, or demur and anfwer
to the fame Part of a Bill ;
for the Plea, (3c. over-rules
the Demurrer. Page 80

If a Demurrer be to Part of the
Plaintiff's Bill, and an infuf-
ficient Anfwer to the Refidue;
yet the Plaintiff cannot ex-
cept, until the Demurrer is
argued. 326

If one demurs to a Bill, and
that Demurrer be ill, the De-
fendant may fliew a frefh
Caufe of Demurrer at the Bar
ere tenus; but if th.^. be good,
the Defendant cannot have his
Cofls. 371

2^CpOfition6» See alfo \Q%^-.

nUnatioit, eHitnefs*

Sed ^iar. & vide 364

Defccnt. See alfo ^ziu

A Papifl above the Age of 18
and an half is capable of in-
heriting or taking Lands by
Dcfcent. 49

The Reverfinn in Fee, or fuch
Part as is un fettled, is Part of
the old Eftate ; and if th.e
Owner had the Land as Heir
of the Mother, it Avail de-
Icend to the Heir on the Mo-
ther's Side ; fo if it was £0-
rough Englijh or Gavelkind,
it ihall dclcend accordingly.

Page 63

One dies indebted by Bond, and
feifed in Fee of divers Lands,
Part of which he devifes to
y. S. and other Part he per-
mits to defcend to his Heir ;
the Lands defcended fljall in
the firfl Place be liable to pay
the Bonds. 367

But had the Teftator devifed the
other Part, though to his Heir
at Law, (in which Cafe the
Devife had been void as to the
Purpofe of making the Heir
take by Purchafe) yet, as it
would ferve to (hew the Te-
fliator's Intent that the Heir
fliould have this Landj there-
fore the Land devifed to f. S.
and the other Land devifed to
the Heir, fliould, as it feems,
contribute in Proportion to
pay the Bond Debts, ibid. (N)

Where Lands in Fee defcend to
an Infant, the Parol fliall de-
mur in Equity as well as at
Law. 368

Defcendible Freehold. See C^C

cupant,

£>C5jaffal3lt See alfo €XZi\V-

A Term afTigned by an Executor
in Truft to attend the Inheri-.
tance, fliall, in Equity, fol-
low

A Ta b l e 0/ the Principal Matters

low all the Eftates created
out of it, and all Incumbran-
ces fubfifting upon it; but the
Term being by this Means
become not AlTets at Law,
the Executor who alTigiicd
the fame, is liable to the Cre-
ditors as for a Devajla'vit.
Page no

"DtMiiZ. See mill,

Devife for Payment of Debts.
See Trujlfor Payment of Debts.

Executory Devife. See alfo Li-
mitation of 'Terms for I'earSy
under Tit. Cffate,

Devife of a Term to A. for Life,
Remainder to the Children Jl.
fliall leave at his Death, and
if the Children of A. die
without Iffue, then to B. The
Children of A. die without
leaving Ifliie at the Time of
their Death ; this a good De-
vife over to B. 258, 304

Difminion.

Where the Plaintiff proceeds both
at Law and in Equity again ft
the Defendant for the fame
Thing, and thereupon is or-
dered to make his Ele<flion,
if he chufes to proceed at
Law, or omits to eledl within
eight Days after Notice of the
Order, his Bill is to be dif-
miiled with Cofts. So likewife
if he makes a fpecial Eledtion
to proceed at Law as to Part,
and in Equity as to other

Part, with Regard to what
the Plaintiff in Equity eledls
to proceed at Law, his Bill
is to be difmiffed with Cofts.
Page 90 (N)

2Diircnterj3 (lP?otrftant),

Exprefly and by Name exempt-
ed by the Toleration Adt (of
I W. & M.) from the Penal-
ties of i^Eliz. cap. I. feB. 2.

39 (N)

Charity to Diflenting Minifters,

good. 346

Lord brings a Bill againft Tenant
to recover a Quit-Rent, al-
leging that the Land out of
which the Quit-Rent ilTues,
by Reafon of the Unity of
Poffeffion with other Lands,
is not known ; the Defendant
anfwers as to Difcovery, and
demurs as to Relief; the De-
murrer allowed, in Regard
that on allowing the llime,
the Plaintiff was at Liberty,
in Cafe he fliould think the
Defendant had not anfwered
the whole Bill, to except to
any Part ; or might amend
his Bill, and diftrein for the
Arrears of the Quit- Rent, fo
that he had a better Remedy
at Law than this Court could
give him. 1 50

Diflri'

contained in the Third Volume.

Diaributfon.

A. by Will declares his Intention
to difpofe of his Houfliold
Goods by his Codicil, and de-
vifes the Refidue of his Per-
fonal Eftate not difpofed of,
nor refcrved to be difpofed of
by his Codicil, to his Wife.
Afterwards the Teftator makes
a Codicil, and does not dif-
pofe of his Houfliold Goods
thereby ; the Houfhold Goods
fhall not go to the Refiduary
Legatee, but according to the
Statute of Diftribution. Page

Where an Executor has an ex-
prefs Legacy for his Care and
Pains, though the next of Kin
has alfo an exprefs Legacy,
yet the Surplus fhall go ac-
cording to the Statute of Di-
ftribution ; efpecially if the
Surplus was intended to be
difpofed of. 43

A Papifl may take a Perfonal
Eftate by the Statute of Di-
ftribution, notwithftanding the
II Gf 12 of ^, 3. made to
prevent the Growth of Popery,

If one dies Inteftate without If-
fue. Brother or Sifter, but
leaving feveral Brothers and
Sifters Children, w'i:. one Ne-
phew by a Brother, and three
Nephews and two Nieces by
a Sifter ; thefe fliall all take
per Capita, and not per Stirpes,
becaufe all equally of Kin, tS^-
ciis, had any one Brother or
Sifter been living at the Death
of the Inteftate. 50

Vol. III.

Though the Statute diredls that
no Diftribution fhall be made
within a Year, yet if any one
intitled to a Share dies within
a Year after the Inteftate, the
Share of the deceafed Perfon
will, notwithftanding, be an
Intereft vefted, tranfmiffible to
his Reprefentatives, in Nature
of a Legacy, which though
given payable a Year hence,
would plainly be an Intereft
vefted prefently ; fo that in
this Senfe the Statute may be
faid to have made a Will for
the Inteftate ; and it is the
fame, where there is only one
who can claim as next of Kin,
in which Cafe there can, pro-
perly and ftriftly fpeaking,
be no Diftribution. Page 49,

50 (N)

An Eftate pur autre vie is di-
ftributable in Equity, though
not in the Spiritual Court.

102

See alfo the Statute of 14 Geo. 2.

A. having feven Children, makes
an Executor in Truft, and de-
vifes to each Child one Seventh
of his Perfonal Eftate. One
of the Children dies in his
Life-time, and one of the fix
furviving Children has been
advanced by the Father in his
Life-time; yet this Child fliall
take his full Share of the 7th
Part, without bringing what
he had before received, into
Hotchpot ; for the Bringing
the Advancement into Hotch-
pot, is to be only in the Cafe
of a total Inteftacy, or where
the whole Perfonal Eftate is
diftributable, not where only
Part is fo. 125

6 Z One

A Ta b l e of the Principal Matters

One devifed his Real Eftate to
be Ibid for the Payment of his
Debts, and the Surplus, if any,
to be deemed Perfonal Eftate,
and to go to his Executors, to
whom he gave loo/. a- piece ;
decreed the Surplus to be di-
ftnbuted. Page 194 (N)

IVherf fee Mr. Vernon'^ Report
of this Cafe rectified from the
Re^ijleps Book.

3:)it)o?ce«

See alfo 'BatOll nilB

In the Cafe of a Divorce a Men-
fa & T/joro, Baron and Feme
live feparately, and the Wife
has a Child ; this is a Baftard,
for the Court will intend Obe-
dience has been paid to the
Sentence. 275

2)onatio caiifa moiti&. See

^. If a Papift be not capable
of taking as Tenant in Dower,
(notwithftanding the 1 1 &
12 fF. 2- made to prevent the
Growth of Popery) that E-
flate being caft on her by Ad
of Law, and not by Purchafe ?

49 (N)

A Woman lliall not be endowed

of a Truft, notwithftanding a

Man fliall be Tenant by the

Curtefy thereof. 229, 234

If a Rent be granted in Tail,

without any Remainder over,

and Tenant in Tail takes a

Wife, and dies without Ilfue ;

the Wife fliall not be endow-
ed, becaufe the Thing out of
which the Dower is to arife,
is not in Being ; fecus, if the
Rent were granted in Tail,
Remainder over. Page 230

A Mortgagor in Fee died, and
the Mortgagee bought in the
Mortgagor's Wife's Right of
Dower ; the Heir of the Mort-
gagor, on his bringing a Bill
to redeem, allowed the Bene-
fit thereof 252 (N)

Dower is incident to all Eftates
Tail, they being Eftates of
Inheritance. 263

Dower forfeitable on the Elope-
ment of the Wife. 276

The having been in drink is not
any Reafon to relieve a Man
againft any Bond, or Deed,
&c. gained from him when
in thofe Circumftances ; for
this were to encourage Drunk-
ennefs ; fecus, if through the
Management or Contrivance
of him who gained the Bond,
&c. the Party from whom it
was gained, were drawn in to
drink. 130 (N)

Duiljam*

In the County Palatine of Dur-

ham. Writs are direfted to the
Chancellor of Durham, or-
dering him to command the
Sheriff. 55

^KJf*

contacted in the Third Volume.

Cjcamcnt.

THE fame Length of Time
which will bar an Ejedl-
ment or Entry, (liall bar a
Right of RedtQipticn. Fage

288 (N)
On the appointing a Receiver in
an Adverfary Suit, as where
the Plaintiff in Eieftment has
recovered a Verdid, the Re-
ceiver's Poffeffion feems to be
the Poffeffion of him who
has the Right. 379

Where the Plaintiff fues both at
Law and in Equity for the
fame Thing, he will be put to
make his Election in which
Court he will proceed, but
need not however make fuch
Eleftion, till the Defendant
has anfwered. 90

The Nature of the Order for

making an Eledion, together

with a fpecial Eleftion and

the Confequences thereof.

ibid. (N)

Where the Child of a Freeman
of London is put to his Elec-
tion whether he will abide by
the Freeman's Will, or by the
Cuftom, he fhall not be 0-
bliged to make fuch Ele<Sion
till after the Account taken.

124 (N)

A. dies indebted by one Bond to
E. and by another Bond to C.
and leaves B. Executor, \\\\o
intermeddles with the Goods,
and dies before Probate, and
before any Eledion made to

retain ; ^. Whether as B.
might have retained the Goods
in his Hands, his Executors
have not the faine Power ?
Fage 183
Bee alfo 184 (N)

Where the Daughter of a Free-
man of London accepts of a
Legacy of 10,000/. left her
by her Father, who recom-
mended it to her to releafe
her Right to her Orphanag*
Part, which flie does releale
accordingly; if the Orphanage
Part bs much more than her
Legacy, though (he was told
flie might eleft which flie
pleafed, yet if fte did not
know (lie had a Right firft
to enquire into the Value of
the Ptrlbnal Eflate, and the
^antiim of the Orphanage
Part, before flie made her E-
Icdtion ; this is ("0 material,
that it may avoid her Releafe.

316

If A. and B. are bound in a
Bond jointly and feverally to
y. S. he may ele<fl to (ue them
jointly or feverally ; but if he
fues them jointly, he cannot
fue them feverally : So if A.
and B. Joint-traders become
Bankrupt, and there are joint
and feparate Commiffions ta-
ken out againft them, and A.
and B. before the Bankruptcy,
become jointly and feverally
bound to y. S. y. S. may
eledt under which Commil-
fion he will come, but he
fliall not come under both.

405
CIOpC'

A Ta b l e 6>/ the Principal Matters

(Clopcmcnt*

Elopement with an Adulterer no
Forfeiture of a Jointure. Fage

276

enrolment* See 3!ni;oIment

€ntrp*

The fame Length of Time which
will bar an Entry, fhall bar
a Right of Redemption.

288 (N)

Where a Difleiror makes a Leafe
to a Man and his Heirs du-
ring the Life of 'J. S. and the
Leflee dies, living J.S. this
fliall not take away the Entry
of the Diffeifee.- 368 (N)

Ctltlitp* See alfo Court of Chan-
cery.

One ought not to be condemned
to pay Cofts in Equity, for in-
fifting on a Right which the
Law gives him. 205

Where Lands in Fee defcend to
an Infant, the Parol fliall de-
mur in Equity as well as at
Law. 368

Ct;tO^ See fFrit of Error, Tit.

muts*

In a Foreclofure againft an In-
fant, though the Inflmt has
fix Months after he comes of
Age to fliew Caufe, &c. yet
he cannot ravel into the Ac-
1

count, nor even redeem, but
only fliew an Error in the De-
cree. P(7ge 3 52
If a Decree be obtained and in-
rolled, fo that the Caufe can-
not be reheard, there is then
no Remedy but by Bill of
Review, which mufl: be on
Error appearing on the Face
of it, or on Matter fubfequent
thereto. 371

€fcape»

One convidled of Felony within
Benefit of Clergy, and fen-
tenced to be tranfported for
feven Years, continues a Fe-
lon till adual Tranfportation
and Service for feven Years,
purfuant to the Sentence ; and
if a Stranger aflift fuch Felon
convidl, being in Cuftody un-
der Sentence of Tranfporta-
tion, to efcape out of Prifon,
the Perfon aflifting is Accef-
fary to the Felony after the
Fad:. 439

€(!atc ijt JFcc^fimpIc abfoliite.

In the Pleading of a Purchafe or
Mortgage, the Defendant muft
plead, that the Seller or Mort-
gagor was, or pretended to be,
feifed in Fee. 281

The Words, " I devife all my
" Temporal Eftate," or " all
" the Reft of my Real E-
" ftate," pafs an Eftate in
Fee-fimple. 295

E/Iafe

contained in the Third Volume.

EJlate in Fee (jtialijied^ or hafe
Fee.

Tenant in Tail of a Rent grant-
ed de novo, without any Re-
mainder over, fuffers a Reco-
very; this will not pafs an ab-
folute, but only a determina-
ble, Fee, viz. fuch as muft
end on the Death of Tenant
in Tail without IlTue. Page

230

Fflate in Fee-tail.

Money is articled to be inverted
in a Purchafe, and fettled on
A. in Tail, Remainder to him
in Fee. A. has neither Wife
nor Iflue, and by a Fine
only might difpole of the
Lands if fettled ; yet (by the
Opinion of the Lord Chan-
cellor King) the Money ought
not to be ordered to be paid
xo A. 13

Quasre tamen, and fee the Note
fubjoined.

Devife to my Son A. for Life,
Remainder to his firfl Son in
Tail Male, Remainder to his
fecond, third, fourth and
fifth Sons fucceflively, without
faying for what Eftate, or any
Words tantamount. A. has
two Sons, the former of whom
dies in his Life-time ; the fe-
cond Son fliall have an Eftate-
tail, being the firfl Son at his
Father's Death. ^. 178

Tenant in Tail of Lands mort-
gaged is not bound to keep
down the Intereft. And note,
Vol. III.

this was fo refolved in the
Cafe where Tenant in Tail
died during his Infancy, and
confequently before he had it
in his Power to fufFer a Re-
covery. Poge 235

An Eftate pur autre vie may be
limited in Tail to A. Re-
mainder to B. 262

All Eflates-tail are Eftates of In-
heritanccj to which Dower is
incident, and muft be within
the Statute de dojiis, not lia-
ble to be forfeited, nor pu-
tt iftiable for Wafte. 263, 265

A. Tenant for Life, Remainder
to B. in Tail, there is Tim-
ber on the PremifTes greatly
decaying. B. brings a Bill,
praying the Timber may be
cut down ; which is decreed,
on leaving fufficient for Bootes,
Repairs, &c. and making Sa-
tisfadlion for the Damage done
to the Tenant for Life on the
PremifTes. 268

Fflate pur autre vie, aiid -what
Limitations tnay be made tbere^
of. See Occupant.

Efiate for Life. See more Tit.
Efiate for Tears.

Tenant for Life of Lands mort-
gaged, is obliged to keep down
the Intereft. 235

A. Tenant for Life, Remainder
to B. in Tail, of an Eftate
whereon there is Timber great-
ly decaying ; the Court will
not allow the Tenant for Life
to have any Share of the Mo-
ney arifing by Sale of the
Timber, but will fee that fuf-
7 A ficlcnc

A Ta b l e of the Principal Matters

ficient be left for Repairs,
Bootes, ISc. and that the Te-
nant for Life have Satisfaftion
made him for whatever Da-
mage is done on the Premif-
fes by him held for Life. Page

268
A. Tenant for Years, Remainder
to B. for Life, Remainder to
C. in Fee, A. is doing Waftej
B. though he cannot bring
Wafte, as not having the In-
heritance, yet he is intitled to
an Injundlion. ibid. (N)

Eijiate in Contingency. See Con»
tinjJCnt JntCrCft, Trujleesfor
preferring Contingent Remaifi-
ders.

EJlate by Copy of Court Roll. See

Eflate by the Curtefy. See dtt--
tEf}?.

Efinte by Implication. See 3!nt-

plicatiou.

Eflate in Jointenancy. See

3ofntenantsi*

Eflate in Remainder. See jRe=

mainnec.

Eflate in Reverfion. See 3^C--

EJlate for Years. See Tritft$
J'or raifng Portions and Pay-
ment of Debts, under Tit.

po?tion0, CruaiS.

One feifed of Lands in Fee in
A. and poffeffed of a Term '
for Years in B. devifes all his
Lands, Tenements and Real
Eftate in A. and B. to J. S.
this will not pafs the Term,
efpecially if there be another
Claufe in the Will which dif-
pofes of the Ferfonal Eftate.

Page 26

One pofTefled of a Term for
Years devifes it to A. for Life,
Remainder to the Heirs of A.
it feems this fliall, on A.'s
Death, go to his Executor, and
not to his Heir. 29

Terms for Years are exprefly
mentioned in the 11 & iz
IF. 3. cap. 4. fe£l.^. (made to
prevent the Growth of Popery)
{o that a Papift is by that Adt
difabled to take any Lcafehold
as well as Freehold Eftate by
Will. 46

But a Papift is not difabled to
take Leafes for Years (being
Perfonal Eftate) by the Sta-
tute of Diftribution. 48, 49

An Executor in Truft for an In-
fant of a Leafc for 99 Years,
determinable on three Lives,
on the Lord's refufing to re-
new but for Lives abfolutely,
complies with the Lord, and
changes the Years into Lives ;
on the Infant's dying under
21, and Inteftate, this ftiall be
a Truft for his Adminiftrator,
and not for his Heir, 99

contained in the TniKD Volume.

A renewed Leafc fliall follow

the Nature of the original one>

Page loi

One pofleiT^'d of a renewable
Term for Years, difpofes of it
by Will, and afterwards re-
news it ; the Renewal no Re-
vocation of the Will. 1 68

Secus, had it been the Cafe of a
Leafe for Life. 170, 171

Where one has a Term for
Years as Executor, and after-
wards purchafes the Inheri-
tance, the Term is not merged,
and why. 329

7enn attendant on the Inheri-
tance.

A Term afiigned by an Executor
in Truft to attend the Inheri-
tance, (hall, in Equity, fol-
low all the Eftates created out
of it, and all Incumbrances
fublifting upon it. 330

Limitation of Terms for Tears,
Money, &c. See alio £)£\)ifCj

One gives a Legacy of 200 /. a-
piece to his Children, payable
-at twenty-one ; and if any of
them die before twenty-one,
then the Legacy given to him
fo dying, to go over to the
furviving Children. One of
che Children dies in the Life
of the Teftator; though this
Legacy lapfes, as to the Lega-
tee dying under twenty-one,
yet it is well given over to the
iiirviving Children, ' 113

Devife of a Term to A. for Life,
Remainder to the Children A.
fhall leave at his Death, and
if the Children of ^. die with-
out liTue, then to B. the
Children of A. die without
leaving any Iffue living at the
Time of their Death ; this a
good Devife over to B. Page

258

Where the Words ufed in a De-
vife of a Leafehold would
make an exprefs Eftate-tail,
were it in the Cafe of a Free-
hold, there a Devife over of
fuch Leafehold is void ; Jecus^
if the Words in the former
Devife would, in the Cafe of
a Freehold, make an Eftate-
tail only by Implication. 259

One devifes a Term for Years to
A. and if A. dies without a
Child, then to B. this is a
good Devife to 5. upon fuch
Contingency, and the Court
will aid the Devifee over, by
direding an Account and Dif-
covery of the Eftate, in order
to fecure it in Cafe the Con-
tingency (hould happen. 300,

304.
Eftate at Will

If a Father buys a Gentleman
Penfioner's Place, or a Com-
miflion in the Army, for his
Son ; it is an Advancement
pro tanto, though but an Of-
fice at Will. 317 (N)

€QoppeI*

Lands are devifed to A. and B.
and the Heirs of the Survivor,

A Ta b l e 0/ the Principal Matters

in Truft to fell ; though the
Inheritance be in Abeyance,
yet the Truftees by a Fine may
make a good Title by Eftop-
pel. Page ijz

Cljincncc* Sec alfo '2Cnftncr,

A Breach of Truft Evidence of
the grcateft Fraud. 1 3 1

An Infant's Anfwer cannot be
given in Evidence againft him,
becaufe it is not the Infant's
Anfwer, but the Guardian's,
who only is fworn to it, and
not the Infant, 237

The Anfwer of a Feme Covert
no Evidence againft her Huf-
band ; ^i. If it may be read
againft herfelf when difcovert.

238^

A Bond or Mortgage is, prima
facie^ good Evidence of a
Debt ; but in Cafe Fraud ap-
pears, the Obligee, Gfr. ought
<o prove aftual Payment of
the Money. 289

Where a Bond is given, and no
Intereft appears to have been
paid for 20 Years thereon, it
is prefumptive Evidence that
the Bond has been fatisfied,
unlefs fomething appears to
anfwer that Length of Time.

396, 397
Where fee in the Note what Evi-
dence has been thought Jliffi-
cient to take off fuch Frejump-
tion of Payment.
In the Cafe of a fpecial Verdidl,
the Judges are to determine
the Law upon the Fa6t as
found pofitively by the Jury,
and not upon the Evidence of
the Fadl. 493

In an Indidment againft one as
AccelTary after the Fadl to a
Felony, by receiving, &c. an
Outlawry or Attainder in a
particular County, may, as
the Cafe may happen to be
circumftanced, be fome Evi-
dence to a Jury of Notice to
an Acceflary in the fame
County, but cannot, with any
Reafon or Juftice, create an
abfolute legal Prefumption of
Notice. Page £^^6

Parol Evidence.

No Parol Evidence ought to be
admitted in the Cafe of a De-
vife of a Guardianftiip, any
more than in the Cafe of a
Devife of Land. 51

Parol Evidence not to be admit-
ted touching the Teftator's In-
tention, and why. 354

C.ramination. See alfo SDepc--
fitiong, ailitnefiS*

A Commiffion being granted to
examine Witneffes at Algiers,
the Plaintiff died, by which,
in Stridnefs, the Suit abated,
but the Witneffes were ex-
amined there before Notice of
the Plaintiff's Death ; the Ex-
amination held regular, though
one of the Witneffes was li-
ving. _ 195

The Defendant being a weak.
Man, and to be examined on
Interrogatoriesj the Mafter or-
dered to take fuch Defendant's
Examination, left he (hould
unwarily admit fomething a-
2 gainft

contained in ^i>^ Third Volume.

gainft himfelf that was not true.

Fage 289

In perpetuam rei memoriam.

A Witnefs was ordered to be ex-
amined de bene efje, where the
Thing examined into, lay on-
ly in the Knowledge of the
Witnefs, and was a Matter of
great Importance, though the
Witnefs was not proved to be
old or infirm. 77

yifter Publication.

After the Defendant has been ex-
amined on Interrogatories, and
Publication pafTed, the Plain-
tiff ought not to have a Com-
miffion to examine Witneffes
in order to falfify the Defen-
dant's Examination ; this tend-
ing to multiply Caufes, and to
make them endlefs. 413

€i:ceptioitiEf»

The Defendant pleads to the
whole Bill, and on arguing
the Plea, it was ordered to
ftand for an Anfwer, without
faying one way or other whe-
ther the Plaintiff might ex-
cept ; this muft be intended a
fufficient Anfwer, and the
Plaintiff cannot except. 239

If a Demurrer be to Part of the
Bill, and an infufficient An-
fwer to the Refidue ; yet the
Plaintiff cannot except until
the Demurrer is argued. 326
Vol. III.

But if to a Bill the Defendant
anfwers as to Matter of Dif-
covery, and pleads only as to
Relief, the Plaintiff may ex-
cept to any Matter of Dif-
covery before the Plea argued ;
for that plainly no Matter of
Difcovery is covered by the
Plea. Pageizy{^)

€j;commim(cato CapfcnUo*

See miii%

€i;cnt Ecffiium* See mxit^*

A. by his Intereft with the Cotn-
miffioners of Excifc, gets an
Office in that Branch of the
Revenue for B. who in Con-
fideration thereof gives a Bond
to A. to pay him 10/. per
Ann. as long as B. enjoys the
Place ; Equity will relieve a-
gainft fuch Bond. 391

Though the Excife was no Part
of the Revenue at the Time
of making the Statute of 5 Q?
6 Ed. 6. yet there may be
good Ground to conftme it
within the Reafon and Mif-
chief of that Statute. 393

Cmutfon,

See alfo JnjmiC«

tiott*

The Plaintiff gets Judgment in
the Petty Bag, after which he
is flopped by an Injundtion.
The Year and Day pafs ; the
Plaintiff, though hindered by
the Injunftion, cannot yet fue
7 B out

A Ta b l e (?/ the Principal Matters

out Execution without a Scire
Facias. P^g^ 36

^i. If in fuch Cafe he could
not have taken out Execution,
and have continued by Fice-
conies non mi fit brevet ibid. (N)

A. died feifed of fome Lands in
Fee, and confiderably indebt-
ed by Judgment and fimple
Contraft. After the Death of
A. and before the Effoin Day
of the next following Term,
many of the Judgment Cre-
ditors delivered Fieri Facias' s
to the Sheriff, and took the
Goods and Furniture of A. in
Execution. In this Cafe it
was held, that the Judgment
Creditors having lodged their
Writs of Execution with the
Sheriff in the fame Vacation
that the Party died, it related
to the Tefle of the Writ as to
all but Furchafers ; and con-
fequently, that the Goods by
Relation were evifted in A!^
Life-time, and therefore the
limpleContraft Creditors could
not, as they petitioned, be ad-
mitted to ftand in the Place
of the Judgment Creditors on
the Land, and be paid there-
out in Proportion as the others
had exhaufled the Perfonal
Eftate. 399, 400 (N)

€tCCUtO?» Sec alfo 951111111=

One pofTeffed of a Term for
Years, devifes it to A. for
Life, Remainder to the Heirs
of A. it feems this fhall, on
^.'s Death, go to his Execu-

tor, and not to his Heir. Tage

A Woman having a Baftard,
leaves a Perfonal Eftate to her
Executor in Truft for the
Baftard, who dies Inteftate,
without Wife or Iflue. The
Executor brings a Bill againft
one who has Part of this Per-
fonal Eftate in his Hands ; the
Defendant demurs, becaufe
the Attorney General and the
Adminiftrator are not Parties j
the Demurrer difallowed, for
that the Executor has the le-
gal Title, and confequenlly
may fue for the Eftate. 33

In the like Cafe, it feems, that
an Executor, though a bare
Truftee, and though there be
a Refiduary Legatee, may fue
for the Perfonal Eftate in E-
quity as well as Law, unlefs
the Cejiuy que Trujl will op-
pofe it. 34

Where an Executor has an ex-
prefs Legacy for his Care and
Pains, though the next of Kin
has alfo an exprefs Legacy,
yet the Surplus Ihall be diftri-
buted, efpecially if fuch Sur-
plus was intended to be dif-
pofed of. 43

Where an Infant Executrix un-
der feventeen marries an Huf-
band of full Age, this does
not determine the Adminiftra-
tion. 88

An Executor in Truft is not a'
good Witnefs for his Cefluy
que Truji, as he is liable to be
fued by Creditors, and to an-
fwer Cofts. 1 8 \

A. dies indebted by one Bond to

B. and by another Bond, to

C. and leaves B. Executor,

who

contained in the Third Volume.

who Lntermeddles with the
Goods, and dies before Pro-
bate ; ^, As B. might have
retained the Goods in his
Hands, his Executors have
not the fame Power ? Page

Any voluntary Bond is good a-
gainft an Executor, but to be
poftponed to a fimple Con-
trad: Debt. 222
The Court never allows an Exe-
cutor for his Time and Trou-
ble, efpecially where there is
an exprefs Legacy for his
Pains, &c. neither will it alter
the Cafe, that the Executor
renounces, and yet is affifting
to the Executorfhip ; nor even
though it appears that the
Executor has deferved more,
and benefited the Truft, to
the Prejudice of his ow^n Af-
fairs. 249
Where there are two Executors,
and one renounces, he is ftill
at Liberty to accept of the
Executorn:iip ; fecus, where
both renounce. 251
Though in this Matter, the Com-
mon Lawyers differ from the
Civilians, the latter holding,
that a Renunciation once made,
though only by one of them,
is peremptory, ibid. (N)
An Executor in Truft who had
no Legacy, and where the
Execution of the Truft was
likely to be attended with
Trouble, at iirft refufed, but
afterwards agreed with the Re-
fiduary Legatees, in Confidera-
tion of 100 Guineas, to ad in
the Executorfhip, and he dy-
ing before the Execution of
the Truft was compleated, his

Executors brought a Bill to
be allowed thefe 100 Guineas
out of the Truft Money in
their Hands ; but the Demand
was difallowed. P(ige 251,
252 (N)

An Executor, Adminiftrator or
Truftee, buys in or com-
pounds Debts, &c. it (hall
enure to the Benefit of the
Teftator, ^c. 252 (N)

At Common Law, and before
the Statute of Frauds, &c. if
a Man granted a Rent to A,
his Executors and Affigns, du-
ring the Life of B. and after-
wards the Grantee had died,
leaving an Executor, but no
AfTignee, the Executor fliould
not have had the Rent, ia
Regard it being a Freehold,
the fame could not defcend
to an Executor; But now
fince the Statute of Frauds,
&c. if a Rent be granted to A.
for the Life of B. and A. die,
living B. A.'s Executors, &c.
fliall have it during the Life
of 5. 264 (N)

If there be two Executors, who
are alfo Refiduary Legatees,
and one of them for a va-
luable Confideration afTiSins
Part of his Refiduum to A.
and afterwards for a valuable
Confideration affigns his whole
Re/iduum to the other Exe-
cutor ; if both are but Chofes
cn'ASfion, the firft AfTign-
mcnt muft take Place. 308

An Executor, Adminiftrator or
Truftee for an Infant, negleds
to fue within fix Years ; the
Statute of Limitations fliall
bind the Infant. 309

y^ Ta B L E of the Principal Matters

A Term afTigned by an Execu-
tor, in Truft to attend the
Inheritance, fliall, in Equity,
follow all the Eftates created
out of it, and all Incum-
brances fubfifling upon it ;
but the Term being by this
Means become not Alfets at
Law, the Executor who af-
figned it, is liable to the Cre-
ditors, as for a Devajlavit.
Page ^2^

A. covenants for himfelf and his
Heirs, that a Jointure- Houfe
(hall remain to the Ufes in
the Settlement ; the Jointrels
cannot bring a Bill agairift the
Heir for a Performance, with-
out making the Executor a
Party. 331

Though in a Bill brought by a
Mortgagee againft the Heir to
foreclofe, the Executor of the
Mortgagor need not be a Par-
ty, and why. 333 (N)

Where the Will does not re-
quire that the Executor fhall
give Security, it is not ufual
for the Court to infift on it,
until fome Milbehaviour; but
where one by Will charged
the Refidue of his Perfonal
Eflate with 40 /. per Ann. to
his Wife, to be paid Quarter-
ly, the Executor was ordered
to bring before the Mafter
fufficient in Bonds and Secu-
rities to anfwer this Annuity.

L .. *336

The Spiritual Court has no Pow-
er to require Security of an
Executor for a due Admini-
ftration of the Affets. 337 (N)
Where an Executor before Pro-
bate files a Bill, ?.nd after-
wards proves the Will ; fuch

fubfequent Probate makes the
Bill a good one. Page 351

A Chofe en ABion (as a Bond)
cannot pafs by Delivery in
Nature of a Donatio caujd
7nortis, in Regard it muft be
fued in the Name of the Exe-
cutor. 358

Though, generally fpeaking, an
Executor or Truftee com-
pounding or releafing a Debt,
muft anfwer for the fame j
yet if it appears to be for the
Benefit of the Teftator's E-
ftate, it is an Excufe. 381

Where an Executrix of A. who
was greatly indebted to divers
Perfons in Debts of different
Natures, being fued in Chan-
cery by fame of them, ap-
peared and anfwered imme-
diately, admitting their De-
mands, (fome of the Plaintiffs
being her own Daughters) and
others of the Creditors fued
the Executrix at Law, where
the Decree not being plead-
able, they obtained Judg-
ments ; yet the Decree of the
Court of Chancery being for a
juft Debt, and having a real
Priority in Point of Time,
was preferred in the Order of
Payment, and the Executrix
proteded and indemnified \n
obeying fuch Decree. 402 (N)

See more of Surplus and Re^-
Juary Legatees, under JLC-

C|;pofitlon of tao^HlS. See al-

fo DeUife, mill

One feifed of Lands in Fee in
A. and pofTefTed of a Term

for

contained in the Third Volume.

for Years in B. devifes all his
Lands, Tenements and Real
Eftate in J. and B. to J. S.

• and his Heirs ; this will not
pafs the Term, efpecially if
there be another Claufe in the
Will which difpofes of the
Perfonal Eftate. P^ge 26

^. has two Sons B. and C. and
on the Marriage of B. A.
fettles Part of his Lands on
B. in Tail ; and A. being
feifed in Fee of the Reverfion
of thefe Lands, and of other
Lands in Pofleffion, devifes
all his Lands and Heredita-
ments, not otherwi/e by him
fettled or difpojed of; the Re-
verfion in Fee will pafs. 56

One devifes all his Lands in A.
B. and C. and elfcwherej The
Teftator has Lands in A. B.
and C and Lands of much
greater Value in another
County ; the Lands in the
other County fhall pafs by the
Word elfeivhere. 6i

A Will began, " As to all my
" worldly Eftate, my Debts
*' being firft paid, I give, &c."
the Real Eftate held liable to
the Debts, nothing being de-
vifed, till the Debts fliould be

paid. 9i>359

Devife of all one's Hon (hold

Goods and other Goods, Plate,

Gfc. to A. the Refidue of my

Perfonal Eftate to B. the

ready Money and Bonds do

not pafs by the Word Goods,

for then the Bequeft of the

Refidue would be void. 1 1 2

Devife to fuch of the Children

of A. as fliall be living at his

Death. A. has Ifl'ue B. who

becoming Bankrupt, gets his

Vol. III.

Certificate allowed, after which
A. dies ; this contingent In-
tereft in the Bankrupt is af-
fignable by the Commiflioners,
the Words of the 13 Eliz.
empowering them to afiign
over all that the Bankrupt
[himfelf] might depart nvithaly
and here the Bankrupt might
have releafed this contingent
Intereft. Befides, the later
Statutes concerning Bankrupts
mention the Word PoJJibility.
Page 1-1,7,
How in an Injundion the Words
Licebit ant em (for the De-
fendant in Equity) placittint
ad Communem Legem fojlularCy
& ad Triationem inde Proce-
dere, & pro defeSfu Placiti
Judicium ititrare, are to be
underftood. 146

See alfo the Note fubjoined.
One by Will devifes that all his
Debts and Legacies fhall be
paid out of his Perfonal E-
ftatc, and if that not fufficient,
then that his Executor within
twelve Months after his Death,
ftiall fell or mortgage fo much
of his Real Eftate as ftiall fuf-
fice for that Purpofc, and
{inter al') gives a Legacy of
1000/. to y.S. who dies
within a Year, and the Per-
fonal Eftate is not fufficient J
this is a vefted Legacy, and
fhall be paid to the Executor
of y. S. the Legatee, though
charged upon Land ; for the
Words within twelve Months,
denote the ultimate Time, but
the Executor may pay it foon-
er. 172

Devife to A. until B. ftiall at-
tain forty Years ; B. dies be-
7 C fore

A Ta B l e of the Principal Matters

fore forty j Ah Eftate ceafes.
iiecus, if the Devife to A. be
made a Fund to pay Debts or
Portions, which cannot be
raifed until B. ftiall have at-
tained his Age of forty ; in
which Cafe the Word jl:aH is
taken for Jl.ould. Page 176

Devife to my Son A. for Life,
Remainder to his firft Son in
Tail Male, Remainder to his
fecond, third, fourth and fifth
Son fucceflively, without fay-
ing for what Eftate, or any
Words tantamount, A. has
two Sons, the former of whom
dies in his Life-time ; the fe-
cond Son fliall have an Eftate-
tail, being the Jirjl Son at his
Father's Death. 178

One makes his Wife his fole
Heirefs cfid Executrix of all
his Real and Perfonal Ejiate,
to fell and difpofe thereof at
her Pleafure to pay his Debts
and Legacies^ and gives his
Brother (who was his next of
Kin and Heir) 5 /. the Wife
has the Refidue to her own
Ufe, and not as a Truftee. 1 93

Money articled to be laid out in
Land, and fettled on the Huf-
band and Wife and IfTue, Re-
mainder to the Hufband in
Fee, will, in Cafe there is
no IlTue, pafs by the Huf-
band's Devife of his Real E-
rtate, though the Money was
never laid out ; but this muft
be undeiftood, provided it be
the Intention of the Party
that it Ihould pafs as fuch ;
for if it appears to have been
his Intention to pafs it as Per-
fonal Eftate, by defcribing it
as fo much Moxiey agreed to

be laid out in Land, it will
then pafs as Perfonal Eftate,
and by a Will not attefted by
three WitnelTcs ; fo that this
feems to depend on the Inten-
tion of the Party, without
whofe particular Interpofition
it is, prima facie. Land, and
will belong to the Reprefen-
tative of the Real Eftate.
Page 221, 222 (N)

Wliere a Plea is ordered to ftand
for an Anfvver, it muft be
intended a fufticient Anfwer,
and confequently the Plaintiff"
cannot except to it, 239

The Words, " I devife all my
" Temporal Eftate," the fame
as " / devife all my ivorldly
" EJlate" and pafs a Fee; and
this is the plainer, where it is
afterwards iaid, all the Reft
of my Rciil Eftate, the Word
Rejl being a Term of Rela-
tion, 295

If I devife all my Lands and
Hereditaments in Dale, and
have a Manor in Dale ; the
Manor, as it is an Heredita-
ment in Dale, will pafs ; but
if I have a Manor in Dale,
and alfo Land there which is
not Parcel of the Manor, it is
a Queftion whether the Manor
will pafs. 322

If I have Freehold and Copyhold
Lands in Dale, and devife all
my Lands and Hereditaments
in Dale to pay my Debts ;
only my Freehold (hall pafs,
if that be fufficient ; fens, if
I have furrendered my Copy-
hold to the Ufe of my Will.

ibid.

One by Will gives all his Houfe-
hold Goods and Implements

contained in the Third Volume.

ofHoufhold} the Malt, Hops,
Beer, Ale, and other Viduals
in the Houfe, do not pafs ;
but the Clock, if not fixed to
the Houle, (hall pafs ; but
not the Guns or Piftols, if
ufed as Arms in riding, or
fhooting Game, Fage '^^'i^^

One has no Land in A. but has
Tithes there, and devifes all
his Land in A. the Tithes, as
they are ifTuing out of the
Land, and Part of the Pro-
fits thereof, (hall pafs. 386

One with Lemon Juice takes out
a Receipt written on the In-
fide of a Bank Note, but
called an Indorfement ; this
held to be Rafing an Indorfe-
ment within 8 ffi" 9 ^. 3. cap,
19. fcB-ib. and to be Felony
without Clecgy. 419

If there be a proper known
Word to exprefs a Thing by,
no Defcription, though with
an Anglice, will be fufficient.

433 (N)
What is meant by a Clerk con-
vid:. 444

In what Cafes, and under what
Circumftances, an Affirma-
tive Law, without Negative
Words, may repeal, or take
away the Force of a former
Law. 49 I

Crtcnt.

Where a Judgment was given
to a Papift, it was determined
he could not extend the Land,
fince that would give him an
Intereft in the Land, contrary
to the exprefs Words of 1 1 Gf
12 W. 3. cap. 4. 46 (N)

If the Wife has a Judgment, and
it is extended upon an Elegit^
the Hufband may aflign it
without a Confideration. So
if a Judgment be given in
Truft for a Feme Sole, who
marries, and by Confent of
her Truftees is in Pofleflion
of the Land extended, the
Hufband may affign over the
extended Intereft ; and by the
fame Reafon, if the Feme has
a Decree to hold and enjoy
Lands, until a Debt due to
her is paid, and flie is in Pof-
feffion of the Land under this
Decree, and marries; the Huf-
band may alTign it without
any Confideration ; for it is in
Nature of an Extent. Page

200

€i;tiiifl:uifl)mcnt, o? Merger,

A. is a Copyholder in Tail, the
Lord grants the Freehold of
the Copyhold to him in Fee ;
the Copyhold, though intail-
ed, is extinguifhed. 9

^icere autem, 1( A. be a Copy-
holder in Tail, Remainder to
B. in Fee, and A. takes a
Grant from the Lord, of the
Freehold to him and his Heirs,
and dies without Iffue • is not
B. in whom there was once a
vefted Remainder in Fee of
the PremiflTes, intitled to the
fame? 10 (N)

Where one has a Term for
Years as Executor, and after-
wards purchafes the Inheri-
tance, without having afligned
the Term ; the Term is not
hereby merged, left it (liould
occafion ^Devajlavit. 329(N)

A Tab l e of the Principal Matters

IF I fend Goods to a Fadlor to
difpuic: of for my Ufe, and
he becomes a Bankrupt, thefe
Goods are not liable to the
Debts of fuch Bankrupt. Fage

A Trader in honaon having Mo-
ney of y. 5. (who refided in
Holland) in his Hands, bought
South-Sea Stock, as Fadlor for
y. S. and took the Stock in
his own Name, hut entered it
in his Account Book, as
bought for y. S. after which
the Trader became a Bank-
rupt ; this Truft Stock not
liable to the Bankruptcy.

187 (N)

Brokers or Fadors who adl for
their Principals, not liable in
their own Capacities. 279

Intact aniJ Cljiin,

A Father intrufts his Heir ap-
parent, then an Infant, to the
Care of a Servant. The Heir
comes of Age ; the Servant
takes a Bond from the Heir,
which Bond is fecreted from
the Father, and the Heir has
not wherewithal to pay the
Bond ; Equity will fet the
Bond afide, as obtained by
Fraud, and a Breach of Trufl.

The Guardianship of a Child
does by the Law of Nature
belong to the Father, who is
at Liberty, in a peaceable
Manner, to take him where-
cver he finds him. 154, 155

The Father is the proper Judge
of what is a fit Provifion for
his Child, for which Reafon
the Court of Chancery will
fupply the want of a Surren-
der of a Copyhold devifed by
a Father to his Child, not-
withflanding he has otherwife
provided for him. Page 284,

285

f ce--fimple aiiB JTce-tail.

Sec

f elcnp. See alfo £)utIatD2p.

Where the Hufband was attaint-
ed of Felony, and pardoned
on Condition of Tranfporta-
tion ; and afterwards the Wife
became intitled to fome Per-
fonal Eflate, as Orphan to a
Freeman of London ; this Per-
fonal Eflate was decreed to be-
long to the Wife as to a Feme
Sole. 37

A Bill in Equity lies not to com-
pel the Performance of an A-
greement to pay Money in
Confideration of having fliflcd
a Profecution for Felony. 279

One with Lemon Juice takes out
a Receipt written on the In-
fide of a Bank Note, but call-
ed an Indorfement ; this held
to be Rafing an Indorfement
within 8 £sf 9^.3. cap. 19.
Jl'tf. 36. and to be Felony
without Benefit of Clergy.

419

One convidled of Felony within
Benefit oi Clergy, and fen-
tenced to be tranfported for
feven Years, continues a Fe-
lon, till adual Tranfportation

and

contained in the Third Volume.

and Service, purfuant to the
Sentence; and if a Stranger af-
fift fuch Felon convid, being
in Cuftody under Sentence of
Tranfportation, to efcape out
of Prifon, (provided it be fuch
an Afliftance as in Law a-
mounts to a Receiving, Har-
bouring or Comforting fuch
Felon) ; the Perfon alTifting
is Acceflary to the Felony af-
ter the Fadt ; but then in the
Indidment for this laft Of-
fence, it muft be charged,
that the Offender had Notice
of the other Felony or Con-
vidtion. Page 43 9

Where the Indidment has not
well charged a Felony, nor
the fpecial Verdidl certainly
found any upon the Fads
therein ftated, and confequent-
ly it is uncertain, whether the
Prifoner be guilty of any Fe-
lony at all, or only of a Mif-
demeanor; or where in fuch
Cafe the Prifoner demurs to
the Indidlment : In all thefe
Cafes the Judgment given muft
be a Judgment of Acquittal ;
but this will be no Bar to an-
other Indi(3:ment conftituting
a different Offence. 499

ITeme Co^jert* See xaron
anD Feme.

IFicri iracfa0* Sec €]cccution*

By Marriage Articles Money is
agreed to be inverted in a Pur-
chafe, and fettled on A. in
Tail, Remainder to,^. in Fee.
Vol. III.

A. has neither Wife nor IfTue,
and might by a Fine only
difpofe of the Lands if fettled;
yet the Lord King would not
order the Money to be paid
to A. ^ fortiori not, if there
had been a Wife or IfTue.

Pageii

But this is contrary to the Opi-
nion of the Lord Macclesfieldy
and (as it is prefumed) to the
prefent Pradtice. H (N)

The Levying a Fine is a Thing
of Time, in Regard of the
many Offices through which
it is to pafs ; and the Writ of
Covenant is to be under the
Great Seal ; by which Means
the Tenant in Tail may be
prevented from levying fuch
Fine, though ever fo much
intended by him. ibid. (N)

A. and B. Tenants in Common
of Lands in Fee ; A. devifed
his Moiety in Fee; after which
A. and B. made Partition by
Deed and Fine, declaring the
Ufe as to one Moiety in Se-
veralty to A. in Fee, and as
to the other Moiety in Se-
veralty to B. in Fee, Certi-
fied by the Judges of B.R.
with whom the Lord Chan-
cellor concurred, that the Will
of A. was not revoked by the
Deed, and Fine levied in Pur-
fuance thereof. 169, 170 (N)

Where the Hufband, for a valu-
able Confideration, covenants
that his Wife fliall join with
him in a Fine ; Equity will
enforce a Performance of fuch
Covenant. 189

^uare autem. If it can be made

appear to have been impoffi-

1 ble for the Hufband to pro-

' 7 D cure

A Ta b l e 0/ the Principal Matters

cure the Concurrence of his
Wife, (as fuppofe there are
Differences between them )
and the Huftand offers to re-
turn all the Money with In-
terefl, and to anfwcr all the
Damages, whether in fuch a
Cafe Equity would not dif-
charge the Hufband from his
Agreement? Fage \Z(){^)

A Fine and five Years Non-claim
held, in Favour of a Pur-
chafer, to Bar a Trufl Term
though the Cefiiiy que Trufl
was an Infant. 310 (N)

Lands are devifed to A. and B.
and to the Heirs of the Sur-
vivor, in Trufl to fell ; though
the Inheritance be in Abey-
ance, yet the Truflees by a
Fine may make a good Title
by Eftoppel. 372

Fine fur Concefjerunt.

A Church Leafe for three Lives
was devifed to A. for Life,
Remainder to B. her Huf-
band for Life, Remainder to
the firfl and every other Son
of 5. by A. in Tail, Re-
mainder to the Heirs Female
of JS. by A. in Tail, Re-
mainder to the right Heirs of
A. B. died, whereupon his
Son C. (whom he had by A)
brought his Bill, praying, that
the Leafehold Premiffes (fome
of the Lives whereby the fame
were held being dropt) might
be renewed and fettled on A.
for Life, Remainder to the
Plaintiff and his Heirs ; the
Court ordered that a Fine fur
Concejferunt fhould be levied
2

by A. and C. and that by a
proper Conveyance of Leafc
and Releafe the Premifles
fliould be conveyed in Trufl
to A. for Life, Remainder to
the Plaintiff C. and his Heirs.
Fage 266 (N)

Fine relating to Copyholds. See

fleet p?ifoit»

One who has been a Prifoner in
Neivgate for Debt, but after-
wards removed to the Fleet, is
ex'communicated ; the Court
of Chancery will not order
the Curfitor to make out the
Writ of Excoir.municato Ca-
piendo to the Warden of the
Fleet ; but the Writ may be
direded to the Sheriff, who
may return a Non eft InventuSy
on which Return the Court of
B. R. may grant an Habeas-
Corpus to bring up the Pri-
foner, and thereon charge him
with an Excommunicato Ca-
piendo. ^^

The Court of Chancery fends
Attachments to the Warden
of the Fleet. ibid.

5Fo?cclofurf, See ^o?tJrag:c.
ifoieiffit CourtjSt See Couctsf,

jTo^fcitutr*

Baron and Feme Defendants to
a Bill. The Feme mufl an-
fwer, notwithftanding her
Anfwer cannot be read againft

her

contained in the Third Volume.

her Hiifband ; but the Feme
is not bound to anfwer any
Bill that may fubjeft her to
a Forfeiture, though her Huf-
band has fubmitted to anfwer.
Page 238
A Defendant not bound to an-
fwer what tends to accufe him
of Maintenance, or of buying
pretenfed Rights within the
Statute of 32 H. 8. cap. 9.
Je5i. 2. 375

JTiMim, Collufion, CoDin, Jm=
pofitian. See alfo DccHjS,

A Decree gained by Fraud may
be fet afide by Petition only.

II I

A Father intrufts his Heir appa-
rent, then an Infant, to the
Care of a Servant ; the Heir
comes of Age ; the Servant
takes a Bond from the Heir,
which Bond is fecreted from
the Father, and the Heir has
not wherewithal to pay the
Bond ; Equity will fet afide
the Bond as obtained by Fraud,
and a Breach of Truft. 129

A weak Man gives a Bond ; if it
be attended with no Fraud,
Gfc. Equity will not fet it a-
fide merely for the Weaknefs
of the Obligor, if he be Com-
pos mentis. 130

The having been in drink, is not
any Reafon to relieve a Man
againfl: any Deed or Agree-
ment gained from him when
in thofe Circumftances, for
this were to encourage Drunk-
ennefs ; [ecus, if through the
Management or Contrivance
of him who gained the Deed,

^c. the Party from whom it
was gained was drawn in to
drink. Page 130 (N)

A Bill in Equity lies to compel
the Performance of an Agree-
ment to ftop a Profecution at
Law for a Fraud. 279

Fraud cognifable in Equity as
well as at Law. ibid.

The firft Mortgagee permits the
Mortgagor to keep the Title
Deeds, and the Mortgagor
{hewing a fair Title, mort-
gages the Pr^miffes to a fe-
cond Mortgagee, to whom he
delivers the Deeds ; the firfl
Mortgagee is Acceffary to the
Drawing in of the fecond, and
fhall not compel the Delivery
of the Writings from him
without paying him his Mort-
gage Money. 280, 281

A Bond or Mortgage is good
Evidence of a Debt; but in
Cafe Fraud appears, the Obli-
gee, &c. ought to prove ac-
tual Payment. 289

A fubfequent deliberate Adl con-
firming an unreafonable Bar-
gain, when the Party is fully
informed of every Thing, and
under no Fraud, nor Surprife,
fhall make the Bargain good,

294

If a Man devifes Lands in Fee
to B. who dies in the Life of
the Teftator, and the Tefta-
tor's Heir taking it that the
Heir of B. is intitled, for a
trifling Confideration conveys
and confirms the Eflate to
him ; Equity will relieve. 318

A. by his Intereft with the Com-
miffioners of Excife, gets an
Ofiice in that Branch of the
Revenue for B. who in Con-
fideration

A Ta B L E of the Principal Matters

fideration thereof gives a
Bond to A. to pay him i o /.
per Ann. as long as jB. enjoys
the Place ; Equity will relieve
againft the Bond. Fageic)\

iFrCe^OlD* See Matters contro-
verted between the Heir and
Executor, under Tit. |)£ir,

Ecal eaate, pctfoual €=

ftatcO

A Truftee or Executor cannot
chiinge the Nature of the
Truft Eftate, by turning a
Leafe for Years into a Free-
hold. lOO

Thor,2;h a Freehold be not diftri-
buiable in the Spiritual Court,
it is in Equity. 102

Where a Man makes his Will,
and afterwards purchafes a
Freehold, fuch Eftate cannot
pafs by the Will made before
the Purchafe, without a new
Publication. 170, 171

At Common Law, and before
the Statute of Frauds, if a
Man had granted a Rent to
A. his Executors and Affigns,
during the Life of B. and af-
terwards the Grantee had died,
leaving an Executor, but no
AfTignee, the Executor fliould
not have had the Rent, in
Regard it being a Freehold,
the fame could not defcend to
an Executor. 264 (N)

Freehold defcendihle,

cupant*

See CC'

^auelfeinn*

WHERE Lands of the
Nature of Gavelkind
are in Settlement, the unfet-
tled Reverfion continues Part
of the old Eftate, and fljall
defcend in Gavelkind. Page 6'^

^oot!0, anu toljat palTe^ bp
tfjc DeDife tfjercof, fee CiC*
pofition of 2Bo2lis(»

<^?ant»

One feifed in Fee of a Manor,
grants a Rent out of it to a
Charity for the Support of fe-
veral poor Perfons, and after-
wards grants the Manor in
Fee to J. S. the Nomination
of the poor Perfons belongs
to the Heir of the Grantor,
and does not pafs with the
Manor. 145

Things lying in Grant, as an
Advowfon, feem extendible in
an Elegit, 401

(SitarUfan* See jnfant, 1S:ru»

A Pre{byterian who had three
Infant Daughters brought up
that way, and had three Bro-
thers Prelhyterians, made his
Will, appointing his Brothers,
and alio a Clergyman of the
Church of England, Guardi-
ans to his three Infant Daugh-
ters, and dies, having fent his
eldeft Daughter to his next

Brother.

contained in the Third Volume.

Brother. The Clergyman gets
two of the Daughters into his
Cuftody, and places them at
a Boarding-School, where they
were bred according to the
Church of England, and
brought his Bill to have the
eldeft Daughter placed out
with the other Daughters,
The three Brothers that were
Prefbyterians brought their
Bill to have the two Daugh-
ters delivered to them ; the
Court declared no Proof out
of the Will ought to be ad-
mitted in the Cafe of a De-
vife of a Guardianftiip, any
more than in the Cafe of a
Devife of Land. Page p

A Guardian cannot alter the
. Nature of the Infant's Eftate,
by turning the Perfonal into a
Real Eftate, & e cotiverjb.

ICO

One through a great Age being
deprived of his Memory, and
almofl: become Non compos,
was admitted to anfwer by his
Guardian, the Demand in
Queftion being but fmall.

1 1 1 (N^)

The Marrying an Infant Ward of
the Court of Chancery, is a
Contempt, though the Parties
concerned in fuch Marriage
had no Notice that the In-
fant was a Ward of the Court ;
all Ads of the Court, as the
Commitment of a Wardrtiip,
and in a Caufe depending, to
be taken Notice of by every
one at his Peril. 1 16, 117

So where one not a Freeman of
London married a City Or-
phan, though it did not ap-
pear the Party had any No-

VOL. III.

tice of his Wife's being a City
Orphan, yet he was held pu-
nifhable by the Court of Or-
phans. Page 1 18 (N)

The Guardianfhip of the Child
does by the Law of Nature
belong to the Father; and the
Right thereto cannot be taken
from him by any other Per-
fon's giving a Legacy though
never fo great, and the Father
is at Liberty to take fuch
Child wherever he can meet
with him, though not by
Force. _ i54> 155

S^Uivre is concerning the proper
Remedies for the Recovery of
a Ward, fuch as the Writ of
Ravifhment of Ward, Ho-
mine Replegiando, and Habeas
Corpus ; and whether, if a
Perfon be brought into Court
by Virtue of the latter, and
declares he is under no Force,
the Court will deliver him in-
to the Cuftody of another ?

i54(N)

Whether the Writ of Eje£lio7ie
Cujlodice be not the moft pro-
per Method whereby to try
the Right of Guardianfhip ?
ibid. (N)

An Infant's Anfwer cannot be
given in Evidence agalnft him,
becaufe the Guardian, and not
the Infant, is fworn to fuch
Anfwer. 237

Alfo the Subfcena to hear Judg-
ment muft be ferved on the
Guardian. ibid. (N)

If an Infant Plaintiff's Guar-
dian or Prochein Amy neglecfts
to put in a Replication to a
Defendant's Anfwer; ^larc.
Whether fuch Anfwer Hiall be
read and admitted to be true,
7 E though

A Ta b l e of the Principal Matters

though never fo detrimental
to the Infant's Inheritance ?

An Allowance of Maintenance
to a Guardian tnuft be in Re-
gard to what the Infant then
had, and not to what falls in
afterwards. 368

^abcasi Co?pus» See mx\x.

rpcir nnti ancfRo?. See allV
^rcciito?, ipnrties, Rejult-

ing Truji.

ONE binds himfelf and his
Heir in a Bond, and mort-
gages fome Lands, of which
he is feifed in Fee, for more
than the Value ; the Heir has
200/. for joining in a Sale of
the Piemifles ; this 200/. held
not to be Affets. ~ 10

One has two Sons A. and B.
and three D..ughters, and de-
vifes his Lands to be fold for
Payment of his Debts ; and as
to the Monies arifing by Sale
after Debts paid, he gives 200/.
thereout to his eldeft Son A.
at twenty-one, the Refidue to
his four younger Children e-
qually ; A. the Eldeft dies be-
fore twenty-one ; this 200 /.
fhall go to the Heir of the
Teftator. 20

The Heir the univerfal Reprefen-
tative of his Anceftor, and not
to be dilinherited by doubtful
Words. 6 1

In a Devife of Lands to pay
Debts, if the Creditors bring
I

a Bill to compel a Sale, the
Heir is generally to be made
a Party ; feais in the Cafe of
a Truft created by Deed to
pay Debts. Page 92

If a Copyhold be made liable to
pay Debts, and the Charge
being but equitable, the legal
Ertate of the Copyhold de-
fcends to the Heir, in a Bill
brought by the Creditors pray-
ing a Sale, it feems neceflary
to make the Heir a Party,
otherwife the legal Eftate of
the Copyhold cannot be con-
veyed to a Purchafer ; but ia
Cafe it appears that the Heir
at Law has, fince the Tefta-
tor's Dearh, conveyed away
all the Copyhold, then the
Grantee of the Heir being ca-
pable of conveying to the
Purchafer, it may not be ne-
ceflary to make the Heir a
Party. 97 (N)

Heirs, when of Age, are under
the Care of Equity, and then
want it moft, the Law taking
Care of them till that Time.

One feifed in Fee of a Manor,
grants a Rent in Fee out of it,
as a Charity, for the Support
of feveral poor Perfons, and
afterwards grants the Manor

contained in the THIRD VOLUME.

to J. S. in Fee ; the Nomi-
nation of the poor Perfons
does not go with the ManO' ,
but belongs to the H^ir of the
Grantor. P^g^ HS

Though by the Statute of Frauds
an Eftate to a Man and his
Heirs for three Lives is made
liable to pay Debts, yet it is
only fuch Debts as bind the
Heir. 166

One articles to buy Land, and
the Title is undei a Will not
proved in Equity againft the
Heir ; yet in fome Cafes E-
quity will compel the Pur-
chafer to accept the Title, 1 90

Money agreed to be laid out in
Land (hall be taken as Land,
and go to the Heir ; and no
Difference where the Money
thus agreed to be laid out and
fettled, is depofited in the
Hands of Truftees, and where
it remains in the Hands of
the Covenantor. 211

One devifes a Rent-charge to be
fold to pay Legacies amount-
ing to 800 /. and if the Rent-
charge (hould fell for 1000/.
the Teftator gives a further
Legacy of 200 /. the Rent-
charge fells for above 800 /.
and lefs than 1000/. what ex-
ceeds the 800/. fhall belong
to the Heir as a refulting
Truft. 252

A Mortgagor in Fee died, and
the Mortgagee bought in the
Mortgagor's Wife's Right of
Dower ; decreed that the Heir
of the Mortgagor, on his
bringing a Bill to redeem,
fhould have the Benefit of it.
il>id. (N)

Where the Heir is totally difin-
herited. Equity will not fup-
ply the want of a Surrender
of a Copyhold in Favour of a
younger Child. P^igezi^^., 285

But a flight Equity for an Heir
to fay he wants the Deeds and
Writings, unlcfs he claims
under fome Deed of Luail
concealed fiom him by the
Defendant. 296

In a Bill brought by a Mortga-
gee to foreclofe, it is fufficient
to make the Heir only of the
Mortgagor a Party. 333 (N)

Although there be no Covenant
or Bond in a Mortgage, yet
the Heir of a Mortgagor fhall
compel an Application of the
Perfonal Eftate in Exonera-
tion of his Land. 358

One dies indebted by Bond, and
feifed in Fee of divers Lands,
Part of which he devifes to
y. S. and other Part he per-
mits to defcend to his Heir^
the Lands defcended fliall in
the firft Place be liable to pay
the Bond Debts. 367

^cere autetn. Whether if the
Teflator had devifed any Part
to the Heir, the other Devi-
fee muft not have contiibuttd
pro rata? ibid. (N)

In the Cafe of Lands in Fee de-
fcending on an Infiint, the
Parol fluU demur in Equity
as well as at Law. 368

An Heir at Law is made a De-
fendant, and infifts on his
Title ; he (hall liave his Cofts
although it goes againfl him ;
but if an Heir at Law be
Plaintiff, and mifcarriiss in his
Suit, he /hall not have Gofls j

but

A Ta b l e of the Principal Matters

but on his Suit appearing to
be groundlefs, (hall pay Cofts.

P^g« 373

Matters controverted between the
Heir and Executor. See alfo

A. covenants for himfelf and his
Heirs, that he will purchafe
Lands, and fettle the fame on
himfelf for Life, Remainder
to his Wife for Life, Re-
mainder to his fiift, CSc. Son
in Tail, Remainder to himfelf
in Fee ; Equity will compel
the Executor to lay out the
Money, though the Heir be
both Debtor and Creditor.

224

Every Mortgage, though with-
out any Covenant or Bond to
pay the Money, implies a
Loan, and every Loan implies
a Debt ; therefore an Heir of
a Mortgagor (hall compel an
Application of the Perfonal
Eftate to pay off a Mortgage,
notwithftanding there was no
Covenant, &c. from the Mort-
gagor. 358

Catching Bargains.

A. having 500 /. given him by
his Uncle, in Cafe he fliould
furvive the Teftator's Wife,
fells it for 100/. to be paid
by 5 /. per Annum-, but that
if the Teftator's Wife (hould
die before A. and the Legacy
become due, in fuch Cafe the
Reft of the Money to be paid

within a Year then next. A.
does furvive the Teftator's
Wife, and knows the Legacy
was become due to him, and
being fully apprifed of the
whole Fadl, confirms the Bar-
gain ; he (liall be bound there-
by. Page 2 go
Though had all depended on the
firft AfTignment, the Court
would have fet it afide, as be-
ing an unreafonable Advantage
made of a neceflitous Man.

An Heir of about twenty-feven
Years of Age, and who had
a Commiflion in the Guards,
borrowed 500 /. on Condition
to pay 1000/. if he furvived
his Father and Father-in-Lawj
but if he died before his Fa-
ther and Father-in-Law, then
the Lender to lofe the 500/.
The Heir furvived his Father
and Father-in-Law, and was
relieved, though after he had
paid the Money, it being for
Fear of an Execution. 292 (N)

Unreafonable Bargains made with
an Heir in his Father's Life-
time, relieved againft, and
why. 293

From whence derived, and what
it fignifies. ^7 (N)

IpOtCljpot* See t)iac(lJut(on,

LcmHoiu

3itieot

contained in the Third Volume.

3iticot nntJ Lunaticfe.

THE Court allowed the
Profits of the Lunatick's
Eftate to the Committee for
the Maintenance of his Per-
fon. The Lunatick dies, his
Adminiftrator brings a Bill for
an Account of thefe Profits ;
the Committee pleads this
Order of Court of the Allow-
ance of the Profits for the
Li^natick's Maintenance ; the
Plea ordered to ftand for an
Anfwer ; but the Court de-
clared they would not relieve
without grofs Fraud. P(tgc

104

No Appeal lies from an Order
or Decree of the Lord Chan-
cellor, or Lord Keeper, touch-
ing Ideots or Lunaticks, to
the Houfe of Lords, but only
to the King in Council. 108

The King's Grant of a Luna-
tick's Eftate without Account
is void ; but the King, or the
Lord Chancellor, may allow
fuch a yearly Maintenance to
a Lunatick, as amounts to the
clear yearly Value of the Lu-
natick's Eftate. 1 10

The Cuftody of a Lunatick may
be granted to a Feme Covert,
though ihe be not fui juris,
but under the Power of her
Hufband. 1 1 1 (N)

One through great Age being de-
prived of his Memory, and
become almoft Non compos
mentis, was admitted to an-
fwer bv his Guardian, the
Thing in Queftion being but
fmall ; but had it been con-

VoL. m.

fiderable, the regular way had
been to have taken out a
CommilTion of Lunacy, and
have gotten a Coma:iittee af-
figned. Page 1 1 1 (N)

A weak Man gives a Bond ; if
it be attended with no Fraud
or Breach of Truft, Equity
will not (tt afide the Bond
only for the Weaknefs of the
Obligor, if he be compos men-
tis. 130

No fuch Thing as an equitable
Non compos^ if compos at Law\

ibid.

By 4 Geo. 2. cap. 10. Ideots, Lu-
naticks, ^c. or their Com-
mittees, by the Diredlion of
the Lord Chancellor, ^c.
may affign over their Trufts
or Mortga2:es, and be ordered
to make fuch Conveyances ia
like Manner as Truftees or
Mortgagees of fane Memory.

389 (N)

JmpeUimcntg. See iimita'

!Jmpncatfon*

Where the Words of a Devife of
a Leafehold would, were it in
the Cafe of a Freehold, make
an Eftate-tail only by Impli-
cation, there a Devife over of
fuch Leafehold is good ; Je-
cus, where fuch Words would
make an exprefs Eftate-tail.

259

37mp?ffonmcnt, See l^jffon.

3!ncum=

A Ta B L E of the Principal Matters

Where a Man purchafes an E-
Ilate, pays Part, and gives
Bond to pay the Refidue of
the Money ; Notice of an
equitable Incumbrance before
Payment of the Money, tho'
after the Bond, is fufficient.
Fage 307

A Term afligned by an Executor
in Trull to attend the Inhe-

, ritance, fliall, in Equity, fol-
low all the Eflates created out
of it, and all the Incumbrances
fubfifting upon it.

o:»^

In all Indidments againfl one
for being Acceflarv after the
Faft, by Receiving, Harbour-
ing, G?r. a Felon, it is necef-
fary to charge, that the Defen-
dant knew the Principal was
Guilty, or convided of Fe-
lony ; and this Omifiion is
not to be helped by the Ver-
did. 493

In Criminal Caies, though the
County be in the Margin, yet
the Place where the Fadt is
fuppofed to be done muft in
the Indidment be Inid in Com^
■pradiSi' ; /ecus in Civil Cafes.

496

Wl^re the Indidment has not
well charged a Felony, nor
the fpecial Verdidt certainly
found any on the Fadls there-
in ftated, or where the Judg-
ment is arrefted for Deftdts in

the Indidlment; this will be

no Bar to an Indidmcnt

charging a different Offence.

Page 499

3iiHio?femcnt,

One with Lemon Juice takes
out a Receipt written on the
Infide of a Bank Note, but
called an Indorfement ; this
held to be Rafing an Indorfe-
ment, within the 8th and 9th
of IV. 2,. cap. 19. J'eB. 36. and
to be Felony without Clergy.

419

Sinfant.

An Executor in Trufl for an In-
fant cannot change the Na-
ture of the Trufl Eflate by
turning Money into Land, or
e cotiverjb. 100

Marrying an Infant Ward of the
Court is a Contempt, though
the Parties concerned had no
Notice that the Infant was a
Ward of the Court. 1 1 6

A Father left a great Perfonal
Eflate to two Infant Children,
and made his Wife Executrix.
A Bill was brought in tlie In-
fants Name by a Relation,
as Prochein Atn)\ to call the
Mother to an Account ; on
Affidavit of feveral other Re-
lations, that this Suit in the
Infants Name was out of
Pique, and not for the In-
fants good, the Court referred
it to a Mafter, who reporting
the Matter to be fo, the Suit
was flayed. - 140

Thq

contained in the Third Volume.

The Deed of an Infant not void
like that of a Feme Covert,
but only voidable. Page 208
An Infant's Anfwer cannot be
given in Evidence againfl him,
and why. 237

.^. If a Defendant to a Bill
brought in the Name of an
Infant puts in an Anfwer, and
the Infant does not reply
thereto, whether the Anfwer
muft not be taken to be true ?
ibid. (N)
A. Tenant for Life, Remainder
to B. in Tail as to one Moi-
ety, Remainder to C. an In-
fant in Tail, as to the other
Moiety , Remainder over.
There is Timber on the Pre-
inJfTes greatly decaying ; on a
Bill brought, praying that the
decaying Timber may be cut
down ; as the Infant is in-
terefted in the Inheritance, no
Timber allowed to be cut
down without the Approba-
tion of the Mafter ; and the
Infant's Moiety of the Money
to be put out for his Benefit.

267
An Executor, Adminiftrator or
Truftee for an Infant, negleds
to fue within fix Years ; the
Statute of Limitations fliall
bind the Infant. 309

In a Decree of Foreclofure a-
gainft an Infant, though the
Infant has fix Months after
he comes of Age, to fhew
Caufe, ^c. yet he cannot ravel
into the Account, nor even
rddeem, but only (hew an
Error in the Decree. 352
On Lands in Fee defcending to
an Infant, the Parol {hall de-
mur in Equity as weU as at
I^aw. 368

An Allowance of Maintenance
to a Guardian mufl: be in Re-
fpfi£t to what the Infant then
had, and not to what falls in
afterwards. P<^g^ 3^8

The Statute of 7 Annce, cap. 1 9.
enabling Infant Truftees to
convey, extends only to plain
and exprefs Trufi:s, not to
fuch as are implied or con-
ftrudive only. 387

A. owed feveral Debts, and by
his Will devifed Lands in Fee
to an Infant, charged with all
his Debts and Legacies ; the
Infant not a Truftee within
the above mentioned Aft, as
to fo much of the Lands as
may (ijffice for the Payment
of the Debts and Legacies.

389 (N)

Jnfcancljifcment* See Cop?=
3!nl)etitance* See Dcfccnt.

3!njunaion» See aifo Coit'
tempt*

The Plaintiff gets Judgment in
the Petty Bag, after which he
is ftopped by an Iniundion.
The Year and Day pafs ; the
Plaintiff, though hindered by
the Injundion, cannot yet fue
out Execution without a Scire
Facias. 36

How the Words in an Injunc-
tion, " Licebit autem (for the
" Defendant in Equity) pla-
" citiim ad Commiinem Legem
" pojhtlare, & ad Trintiotietn
" inde ProcederCy & pro de-
" feSfu Placiti judicium in-
" trarel'

A Ta b l e of the Principal Matters

" trare" are to be underftood.
Fage 146

Whether if, after Service of
an Injundion, the Defen-
dant at Law puts in a frivo-
lous Plea to an Adtion of
Debt on a Bond, the Plaintiff
having demurred thereto, and
gotten it made a Conciliimi^
may, after Argument, obtain
Judgment? ibid. (N)

Whether, after Service of an In-
iundion upon the Defendant
and his Attorney, they may
deliver a Declaration ? ilf. (N)

Affidavits allowed ro be read for
the Patentee of a new Inven-
tion, on a Motion to diffolve
the Injunftion on coming in
of the Anfwer. 255

^. Tenant for Years, Remainder
to B. for Life. yl. is doing
Wafte ; B. though he cannot
bring Wafte, as not having
the Inheritance, yet he is in-
titled to an Injundtion. But
if it be Wafte of a trivial Na-
ture, much more if it be me-
, liorating Wafte, as by Build-
ing, the Court will not in-
join ; nor if the Reverfioner
or Remainder Man in Fee be
not made a Party, who pofti-
bly may approve of the Wafte.

268 (N)

After a Plea put in, there can
be no Motion for an Injunc-
tion, till the Plea is argued.

Sinrolment,

If a Decree be obtained and in-
rolled, there is then no Re-
medy but by Bill of Review.

Intcrcl! of $^oncp. See alfo
Tit. ILrijacp, SboitQUQt,

Intereft recovered for a Legacy,

though after a Receipt given

in full for the Legacy, and

the principal Legacy paid.

P^ge 126

Though by a Deed 5 /. per Cent,
per yliw. was diredled to be
allowed, yet it appearing that
the Money had been placed in
the Government Funds, which
yielded but 4 /. per Cent, the
Court reduced the Intereft to
4/. 227

Tenant in Tail of mortgaged
Lands not bound to keep
down the Intereft, as Tenant
for Life is, not even though
the former dies during his In-
fancy, and confequently be-
fore it was in his Power to
have barred the Remainder by
a Recovery. 234,235

A Legacy out of a Rent-charge
fhall carry Intereft. 254

In a poor Caufe, to fave Ex-
pence, and where the Matter
is clear, the Court will refer
it to the Regifter inftead of a
Mafter, to compute the In-
tereft or Arrears of Rent. 258

Bintcrronintaiirjs. See 3^cpa=
fition, €raniination, CUit-
ncfjs.

2ointcnant^ antj tlTcnant^ fn
Common*

One devifes the Surplus of his
Pcrfonal Eftate to his four

Exccu-

contained in the Third Volume.

Executors ; this is a joint Be-
queft, and on the Death of
one of them, ftiall go to the
Survivors, as well in the Cafe
of a Legacy, as of a Grant.
Page 115
Five Perfons purchafed Weft Tho-
rock Level from the Commif-
fioners of Sewers, and the
Purchafe was to them as
Jointenants in Fee ; but they
contributed rateably to the
Purchafe, which was with an
Intent to drain the Level, af-
ter which feveral of them
died ; they were held to be
Tenants in Common in Equi-
ty ; and though one of thefe
five Undertakers deferted the
Partnerfhip for thirty Years,
yet he was let in afterwards,
and upon what Terms. 158

3loint nnti fetiecaL See alfo

T5anfertipt0, and concerning
their joint and jeparate Com-
mijjions.

If A. and B. are bound in a
Bond jointly and feverally to
y. S. he may eleft to fue
them jointly or feverally ; but
if he fues them jointly, he
cannot fue them feverally, for
the Pendency of the one Suit
may be pleaded in Abatement
of the other. 405

But if two joint Traders owe a
Partnerfhip Debt, and one of
the Partners gives a Bond as a
Collateral Security for Pay-
ment of this Debt ; here the
joint Debt may be fued for by
the Partnerfhip Creditor, who
may likewife fue the Bond
Vol. III.

given by one of the Traders.
Page 40 S

where the Wife fues the Huf-
band for a fpecifick Perform-
ance of her Marriage Articles,
it is no Bur to her Demand,
that fhe has eloped with an
Adulterer, cfpecially if this be
not by the Hufband put in
IfTue in the Caufe. 269

Jutijje anil 3^urin
ciecDia*

See alfo

Jury proper to try the Reafon-
ablenefs of a Fine fet on a
Copyhold Eftate. 157

Where the Hufband and Wife
part voluntarily, and a Child
is born during fuch Separa-
tion, the Child will be Legi-
timate, unlefs the Jury find
the Hufband had no Accefs.

275

Where a Title depends on the
Words of a Will, this is as
properly determinable in E-
quity, as by a Judge and Jury
at Ni/i prius. 296

giiingmcnt See <gcciiritici£j.

Arreji of Judgment.

Where a fpecial Verdidt has not
certainly found any Felony
upon the Fadls therein ftated,
and confequently it is uncer-
tain whether the Prifonef be
guilty of any Felony at all,
7 G or

A Ta b l e ^/ the Principal Matters

or only of a Mifdemeanor ; or
where the Jury has found a
general Verdict, that the Pri-
Ibner is Guilty, and after-
wards Judgment is arrefted
for Defeds in the Indidlment ;
in thefe Cafes the Judgment
given muft be Judgment of
Acquittal ; but this will be
no Bar to another Indidlment
conftituting a different Of-
fence. P^g^ 499

3[ui;ij6tiiffion o? CcBiiifancc.

See alfo CoUCtJJ*

The Lord Chancellor or Lord
Keeper has Jurifdidlion in
Cafes of Ideocy or Lunacy,
not as Lord Chancellor or
Lord Keeper, but by Virtue
of a Royal Sign Manual ; and
from his Orders or Decrees
touching thefe Matters, no
Appeal lies to the Houfe of
Lords, but only to the King
in Council, 107, 108

^ee alfo the Note thereto J'ub-
joined.

j^iniy» See pjeroffatftje*

ATruftee forbearing to do
what it was his Office to
have done, fliall not prejudice
the Cejluy que Truji. 2 1 5

lanti--€a,c* See Eajccg,

LcafC0. See alfo EJiates for
Life and Tears.

A renewed Leafe fliall follow

the Nature of the original one.

Page loi

Leafe of a Coal- Mine to A. re-
ferving a Rent ; A. the Lef-
fee declares himfelf a Truflee
for five fevcral Perfons, to
each a Fifth. The five Part-
ners enter upon, work, and
take the Profits of the Mine,
which afterwards becomes un-
profitable, and the LelTee In-
folvent; the Cejiuy que Trujii
not liable, but for the Time
during which they took the
Profits. 402

Icafc nnn Relenfc*

An Eftate for three Lives is li-
mited to A. and the Heirs of
his Body ; A. by Leafe, or
by Leafe and Releafe, may
bar the Heirs of his Body as
claiming under him, but can-
not by any Ad bar B. 265

S^iare tamen.

Hegacp nnti legatee.

Where a Legacy is devifcd of a
Leafehold Eftate to A. for
Life, Remainder to B. and the
Executor affents to the Devife
to A. This is a good Aflent
to the Devife over. 1 2

A. by Will declares his Inten-
tion to difpofe of his Houftiold
Goods by his Codicil, and de-

vifes

contained in the Third Volume.

vifes the Refidue of his Per-
fonal Eftate not difpofed of,
nor referved to be difpofed of
by his Codicil, to his Wife,
whom he made Refiduary Le-
gatee. Afterwards the Tefta-
tor makes a Codicil, and does
not difpofe of the Houfliold
Goods thereby; the Houfliold
Goods (hall not go to the
Refiduary Legatee, but ac-
cording to the Statute of Di-
ftribution. P^g^ 40

Where an Executor has an ex-
prefs Legacy for his Care and
Pains, though the next of
Kin has alfo an exprefs Le-
gacy, yet the Surplus fliall go
according to the Statute of
Diftribution ; efpecially if the
Surplus was intended to be
difpofed of. 43

A diftributary Share by the Sta-
tute is in Nature of a veiled
Legacy, tranfmillible to the
Reprefentatives of the Party
in titled, even though hs dies
within the Year. 49, 50 (N)

One gives a Legacy of 200 /. a-
piece to his Children, payable
at twenty-one ; and if any of
them die before twenty-one,
then the Legacy given to him
fo dying, to go over to the
furviving Children. One of
the Children dies in the Life
of the Teftator; though this
Legacy lapfes as to the Lega-
tee dying under twenty-one,
yet it is well given over to the
furviving Children. 113

One devifes the Surplus of his
Perfonal Eftate to his four
Executors ; this is a joint Be-
queft, and on the Death of
one (hall go to the Survivors,

as well in the Cafe of a Le-
gacy as of a Grant. Page 1 15

Luerefl recovered for a Legacy,
though after a Receipt given
in full for the Legacy, and
the principal Legacy paid. 126

If a Legacy be given out of Land
to "J . S. payable at twenty-
one, and y. S. dies before
twenty-one; the Legacy finks,
Secus, where given out of a
Perfonal Eftate. 138

One by his Will devifes that all
his Debts and Legacies fliall
he paid by his Executors out
of his Perfonal Eftate, if that
fliall be fufficient ; but if not,
then that his Executors fliall
within twelve Months after his
Death mortgage fo much of
his Real Eftate, as fliall fuffice
for that Purpofe, and {inter
al') gives a Legacy of 1000/.
to y. S. who dies within a
Year, and the Perfonal Eftate
is not fufhcient ; this is a
vefted Legacy, and fliall be
paid to the Executor of the
Legatee, though charged upon
Land ; for the Words within
twelve Months, denote the ul-
timate Time ; but the Execu-
tors may pay the Legacy foon-
er. J72

Huiband and Wife fue for a Le-
gacy given to the Wife ; the
Court will not compel the
Payment of it, unlefs the
Huiband makes fome Settle-
ment on the Wife. 202

The Court never allows an Exe-
cutor or Truftee for his Time
and Trouble, efpecially where
there is an exprefs Legacy for
his Pains. 249

A Ta b l e of the Principal Matters

An Executor in Truft who had
no Legacy, and where the
Execution of the Truft was
likely to be attended with
Difficulty, at firft refufed, but
afterwards agreed with the
Refiduary Legatees, in Con-
iideration of loo Guineas, to
adl in the ExecutorQiip, and
he dying before the Execution
of the Truft was compleated,
his Executors brought a Bill
to be allowed thefe loo Gui-
neas out of the Truft Money
in their Hands ; but the Court
difallowed the Demand. Foge
251, 252 (N)

A Legacy given out of a Rent-
charge fliall carry Intereft.

254

A. having 500 /, given him by
his Uncle, in Cafe he ftiould
furvive the Teftator's Wife,
fells it for 1 00 /. to be paid
by 5 /. per Annum ; but that
if the Teftator's Wife ftiould
die before A. and the Legacy
become due, in fuch Cafe the
Reft of the Money to be paid
within a Year then next. A.
does furvive the Teftator's
Wife, and knows the Legacy
was become due to him, and
being fully apprifed of the
whole Fadt, confirms the Bar-
gain 3 he ftiall be bound there-
by. 290

No Neceflity for making the
Refiduary Legatee a Party.

311 (N)

On a Devife of Lands to pay
Debts, a Legatee, whether
Specifick or Pecuniary, fliall
be paid out of the Lands, if
the fimple Contraft Creditors
have exhaufted the Perfonal
Eftate. 323

One pofi"efled of a Term for
1000 Years, articles to pur-
chafe the Inheritance, and by
Will gives 3000/. to his
Daughter, making his Son
Executor, and dies. The Son
afligns the Term in Truft to
attend the Inheritance, of
which he takes a Conveyance
in his own Name. After-
wards the Son acknowledges
a Judgment to A. and mort-
gages the fame Lands to B.
and dies Infolvent ; A. fliall
fiift be paid his Judgment ;
then B. fliall be paid his Mort-
gage, and then the Daughter
(being Adminiftratrix to her
Brother) is intitled to her Le-
gacy of 3000 /. in Preference
to the fimple Contrad: Cre-
ditors. -P^^^ 328

Not ufual for the Court of
Chancery to require Security
of an Executor for the due
Payment of Legacies, until he
has been guilty of fome Mif-
behaviour. 336

Neither has the Spiritual Court
a Power to exadl Security of
an Executor, under Pretence
that, by Reafon of the bad
Circumftances of fuch Exe-
cutor, the Legacies are in
Danger of being loft. 337 (N)

One devifed the Sum of 6000/.
South-Sea Stock to y. S. and
the Tcftator has but 5360/.
no more than the 5360/.
fliall pafs; and the Reft of
the Teftator's Perfonal Eftate
not be obliged to make it up
(coo/, but it might be other-
wife, if the Teftator had no
Stock at all. 384

Donatio

contained in the Third Volume.

Donatio caufd mortis.

In every Dofiatio caufd mortis
Delivery muft be made by the
Party, or by his Order, in
his laft Sicknefs ; for which
Reafon it cannot be of a Bond
or Chofe en Aolion, which
muft be fued in the Name of
the Executor ; but it may be
to a Wife, being in Nature
of a Legacy, but need not be
proved with the Will. Page

3S7> 358

Specijick Legacies.

If one owes Debts by Bond, and
devifes his Lands to y. S. in
Fee, and leaves a fpecifick
Legacy, and dies, and the
Bond Creditor comes upon
the fpecifick Legacy for Pay-
ment of his Debt ; the fpeci-
fick Legatee fhall not ftand
in the Place of the Bond Cre-
ditor, the Devifee of the Land
being as much a fpecifick De-
vifee, as he who claims the
fpecifick Legacy. 324

Specifick Legacies, as in forne
Refpedls they have the Advan-
tage, fo in others they have
the Difadvantage, of pecuniary
Legacies. 385

Ademption of a Legacy.

Where a Teftator devifes a Debt,
and afterwards receives it, or
even calls it in, in neither
Cafe js this an Ademption of
the Legacy. 386

In what Cafe a Legacy fhall or

foall not be a SatisfaSiion of a

Debt, or other Demand 0}t the

Teftator s EJlate, fee ®atlf«

fafttoiu
Icfyiflatuce* See pntliament*

lien,

A. covenants on his Marriage to
lay out 3000/. in the Pur-
chafe of Land, and to fettle
it on himfelf in Tail, Re-
mainder to B, A. purchafcs
the Manor of B. with this
3000/. and never fettles it,
but fuffers a Recovery thereof.
This Covenant was a Lien on
the Land, but the Recovery
fuffcred by A. difcharged fuch
Lien, and barred B. of the
Benefit of it. P'igs 1 7 1

Where a Man purchafes an E-
ftate, pays Part, and gives his
Bond for Payment of the Re-
fidue ; Notice of an equitable
Lien before Payment of the
Refidue, though fubfequent to
giving the Bond, is fufficient.

307

ttmitatiDiigi anti statute of
Liuiitationie,

One owes a Debt by fimple Con-
tract. Six Years pafs, where-
by the Debt is barred ; after
which the Debtor by Will
charges his Lands with the
Payment of all his Debts, and
dies ; it feems that by this the
Debt is revived, 84

7 H %.

^ Ta B L E of the Principal Matters

^i. If a Man were to devife his
Perfonal Eftate in Truft to
pay his Debts ; would this re-
vive a Debt barred by the Sta-
tute ? Page 89 (N)

The Statute of Limitations n©
Plea where the Bill charges a
Fraud ; but then it fliould be
charged by the Bill, that the
Fraud was difcovercd within
fix Years before the Bill filed.

H3
So where, though the Aflignee

of the Effefts of a Bankrupt
claims under an Adl of Par-
liament ; yet as the Statute of
Limitations might be pleaded
againft the Bankrupt, by the
fame Reafon it is pleadable a-
gainfl: the Aflignee. 144

Length of Time, which will net
bar an Ejedlment, fliall not
bar a Bill in Equity. 287

Where it appears by a Bill to
redeem, that the Mortgagee
has been in Poffeffion twenty
Years, the Defendant need
not plead the Length of Time,
but may demur ; neither will
a Redemption in fuch Cafe be
allowed, unlefs on Account of
Lnprilbnment, Infancy, or
Coverture, or by having been
beyond Sea ; and not by ha-
ving abfconded, which is an
avoiding, or retarding of Ju-
flice : Alfo, as the Court has
not in general thought proper
to exceed twenty Years, where
there was no Difability, in
Imitation of the firfl: Claufe
of the Statute of Limitations ;
fo after the DiJ'ability re-
moved, the Time fixed for
profecuting, in the Provifo,
(which is ten Years) ought

in like Manner to be obferved.
Page 287, 288 (N)

An Executor, Adminiftrator or
Truftce for an Infant, neg-
lects to fue within fix Years ;
the Statute of Limitations, (hall
bind the Infant. 309

A Corporation (or Company)
fhall have the Benefit of the
Statute of Limitations as well
as any private Perfon. 310

A Fine and five Years Non-
claim fhall, in Favour of a
Purchafer, bar a Truft Term,
though the Cejluy que "Tnifi be
an Infant. ibid.i^)

Locaf. See Cctintp*

lontJon, ann t!je Cuttomsi
tfjercof.

If the Wife's Portion be fmall,
and the Hufband a Freeman
of London, the Cuftom of
London [alone] is a fuitable
Provifion. 13

A Freeman of London, before
Marriage, fettles fome Part of
his Perfonal Eftate on his in-
tended Wife, to take Effedt
after his Death, without men-
tioning it to be in Bar of her
Cuftomary Part ; this will bar
her of fuch Cuftomary Part.

It is fufficient if the Cuftom ot
London be certified by the Re-
corder at the Bar ore tenus. 1 6

But if the Certificate be falfe, an
Adlion lies againft the Mayor
and Aldermen, and not againft
the Recorder ; for it is their
Certificate bv the Recorder.

17 (N)
What

contained in /Z'^ Third Volume.

What Alterations have been
made, with Regard to the
Cuftom of London^ by 1 1 Geo.
1. cap. 1 8. Page 19 (N)

Where the Hufband was attaint-
ed of Felony, and pardoned
on Condition of Tranfporta-
tion, and afterwards the Wife
became intitled to fome Per-
fonal Eftate, as Orphan to a
Freeman of London ; this Per-
fonal Eftate decreed to belong
to the Wife, as to a Feme
Sole. 37

One, not a Freeman of London^
married a City Orphan ; and
though it did not appear that
the Party had any Notice of
his Wife's being a City Or-
phan ; yet it was held fuch
Perfon was punilliable by the
Court of Orphans, 1 1 8 (N)

A Freeman of London by his
Will charges his Real Eftate
with 1500/. for his Daughter,
and alfo gives her 1500 /. out
of his Perfonal Eftate. The
Daughter would take the
1 500 /. out of the Real Eftate
(as that is not within the
Cuftom) and alfo claim her
Orphanage Part : But the
Court, in Regard the Teftator
had difpofed of all his Real
and Perfonal Eftate among
his Children, and intended an
equal Divifion, would not fuf-
fer the Child to dilappoint her
Father's Will, but compelled
her to abide intirely by the
Will, or by the Cuftom. 123

If a Freeman gives a Legacy to
his Child, and difpofcs of his
whole Perfonal Eftate, the
Child ftiall not have both the
Legacy and the Orphanage

Part, even though the Legacy
does not exceed the dead
Man's Part : Secus^ if the Le-
gacy be given exprefly out of
the Teftamentary Part ; but
in no Cafe ftiall the Child be
obliged to make his Eledion,
till after the Account taken.
Page 124 (N)

Where a Daughter of a Freeman
of London accepts of a Legacy
of 10,000/. left her by her
Father, who recommended it
to her to releafe her Right to
her Orphanage Part, which
flie does releafe accordingly ;
if the Orphanage Part be
much more than her Legacy,
though ftie was told (lie might
eledt v/hich flie pleafed ; yet
if (lie did not know flie had a
Right firft to inquire into the
Value of the Perfonal Eftate^
and the ^antiim of her Or-
phanage Part, before flie made
her Eledtion ; this is fo ma-
terial, that it may avoid her
Releafe. 3 1 6

Maintenance Money, or an Al-
lowance made by a Freeman
to his Son at the Univerlity,
or in Travelling, is not to be
taken as any Part of his Ad-
vancement, this being only
his Education. 317 (N)

The Will of a Freeman cannot
any way operate upon the
Orphanage Part. 318 (N)

Though this feems to have been
otherwife held formerly, ibid.

Freeman of London compounds
with his Wife for her Cufto-
mary Part before Marriage j
it fliall be taken as if no Wife,
and the Huftjand fhall have
one Half of the Perfonal E-

ftate

^ Ta B L E of the Principal Matters

ftate in his own Power, the
Children the other Half. Page

320

3LOHJ0. See Jpcetjs of tlje
lunaticU* See jneot.

Maintenance fo? €f)iHi?ctt.

See alfo ^(i?tiOnSl»

MAintenance Money, or an
Allowance made by a
Freeman to his Son at the
Univerfity, or in Travelling,
is not to be taken as any Part
of his Advancement. 317 (N)
An Allowance of Maintenance
to a Guardian, muft be in
Regard to what the Infant
then had, not to what falls in
afterwards. 368

Maintenance, o? buying of
p?etEnfeli Eisfitis toitl)in
32 H. 8.

A Defendant is not bound to
anfwer what tends to accufe
him of Maintenance within
this Ad. 375

A Perfon interefted in the Pre-
mifles (as a Mortgagee) tho^'
he be no Party to the Suit,
may expend Money in fup-
porting the Title, without be-
ing guilty of Maintenance.

^annamug*

Where the Spiritual Court rc-
fufed to grant the Probate of
a Will to an Executor until
he fliould give Security for a
due Adminiftration of the Af-
fets, the Court of B. R. has
inforced the Granting of fuch
Probate, by a peremptory
Mandamus. P^ge 3 3 7 ( ^)

S^atriajyC* See alfo under Tit.

"Baron anti IFeme.

Agreements on Marriage, fee

under ggtccment*

Rejiraints on Marriage.

Devife of a Legacy to a Feme on
Condition flie marry a Man
of the Name of Barlow. A.
takes upon him the Name of
Barloiv, and the Feme mar-
ries him ; this is a Perform-
ance of the Condition, and
Equity will not decree the
Hufband to retain that Name.

All Reftraints on Marriage held
void by the Ecclefiaftical
Courts, and in the Court of
Chancery Relief is given a-
gainft them in many Cafes,
unlel's where there is a De-
vife over. 238, 239

Underhand Agreements on Mar-
riage.

A. treats for the Marriage of his

Son, and in the Settlement on

2 the

contained in the Third Volume.

the Son there is a Power re-
ferved to the Father, to join-
ture any Wife whom he
fhould marry, in 200 /. per
Ann. paying 1000 /. to the
Son. The Father treating a-
bout marrying a fecond Wife,
the Son agrees with the fecond
Wife's Relations to releafe the
1 000 /. and does releafe it,
but takes a private Bond from
the Father for the Payment
of this 1000/. Equity will
not fet afide this Bond, be-
caufe it would be injurious to
the firft Marriage, which be-
ing prior in Time, is to be
preferred. Tage 66

Licences jor marrying.

A Parfon obtains blank Licences
for marrying, under the Seal
of the proper Officer, and af-
terwards fills them up; thefe
are void notwithftanding. 1 1 8

Si^alfec'jS Report o? €tttifi-
cate»

A Father left a great Perfonal
Eftate to two Infant Children,
and made his Wife Executrix.
A Bill was brought in the In-
fants Name by a Relation, as
Prochein Amy, to call the
Mother to an Account. On
Affidavit of feveral other Re-
lations, that this Suit in the
Infants Name was out of
Pique, and not for the In-
fants good, the Court referred
k to a Mafter, who reporting
Vol. III.

the Matter to be fo, the Suit
was flayed. P^g^ 140

A Mafter's Report, though it
ought not to be conclufive,
yet is, prima facie, to be
looked upon as true till falfi-
fied by an Affidavit on the
other Side. 142 (N)

Inftance of a very judicious Re-
port made by a Mafter. 196

The Defendant being a weak
Man, and about to be ex-
amined on Interrogatories, the
Mafter was ordered to take
his Examination, left he fhould
unwarily admit fomething a-
gainft himfelf that was not
true. 289

$pcc0cr» See €i;tinffuifljment»

Leafe of a Coal-Mine to A. re-
ferving a Rent ; A. the Lef-
fee declares himfelf a Truftee
for five Per'ors, to each a
Fifth. The five Partners en-
ter upon, work and take the
Profits of the Mine, which
afterwards becomes unprofita-
ble, and the Lefiee Infolventj
the Cejluy que Trufti not lia-
ble, but for the Time during
which they took the Profits.

40 z

^Otlf^'

A Ta b l e of the Principal Matters

iponcp. See alfo JntCtCft Of
Money agreed to be laid out in

Land, lee Slijrcement ; al-

fo Matters controverted he-
tiveen the Heir and Executor,
fee under ^Z\X*

If Money be devifed to an In-
fant Daughter, who marries,
the Court may refufe helping
the Hufband to the Money,
unlefs he makes a fuitable Set-
tlement. Page 12

Devife of my Houftiold Goods
and other Goods to A. the
Refidue of my Perfonal Eftate
to B. The ready Money and
Bonds do not pafs by the
Word Goods. 1 1 2

Difference between an Award to
pay Money, and to do any
Thing Collateral ; and why a
Bill in Equity may be proper
only to compel a Performance
of the latter. 190

In a Settlement a Term was
raifed for Daughters Portions,
•uiz. 10,000/. with a Provifo,
that if the Father by Deed or
Will fhould give any Sum of
Money which (hould be ac-
tually paid to them, then fuch
Money, if equal, fliould be
a Satisfaftion ; if not equal,
then that it fliould go towards
Satisfadlion of their Portions.
The Father leaves Land to the
Daughters to the Value of
JO, 000/. This no Satisfadlion,
in Regard Money and Land
going in a different Channel,
the one is not to be taken in

Satisfadion for the other. Page
245, 246, 247

One interefled in the PremifTes
(as a Mortgagee) though he
be no Party to the Suit, may
expend Money in fupporting
the Title, without being guilty
of Maintenance. 378

See more under Tit. Real and
Perjonal Eftate.

cpoitgnijc. See aifo Jntcceff,

As to the Buying in of Incuni'
trances, and for isihofe Benefit
it fiall be, fee Tit. "^tUl!,

A Mortgage is a conditional Sale ;
confequently every Power to
fell implies a Power to mort-
gage. _ _ 9

Tenant in Tail of Lands mort-
gaged, not bound to keep
down the Intereft, as Tenant
for Life is. 235

Where there is a fubfequent
Mortgagee without Notice,
who has PofTefTion of the Ti-
tle Deeds, the firfl Mortgagee
fhall not compel a Delivery
of the Writings from him,
without paying him his Mort-
gage Money. 280

The firfl Mortgagee permits the
Mortgagor to keep the Title
Deeds, and the Mortgagor
fliewing a fair Title, mortgages
the PremifTes to a fecond.
Mortgagee, to whom he de-
livers the Deeds ; the firfl
Mortgagee is Acceffary to the
drawing in of the fecond. 281

In the Pleading of a Purchafe or
IVIortgage, the Defendant mufl
ple^d that the Seller or Mort-
gagor

contained in the Third Volume.

gagor w?s, or pretended to be,
feil'ed in Fee. Page2?>i

A Bond or Mortgage is, prima
faciCy good Evidence of a
Debt ; but in Cafe Fraud ap-
pears, the Obligee, &c. ought
to prove adtual Payment of
the Money. 289

Every Mortgage, though with-
out a Covenant or Bond to
pay the Money, implies a
Loan, and every Loan implies
a Debt ; therefore an Heir of
a Mortgagor fliall compel an
Application of the Perfonal
Eftate to pay off a Mortgage,
notwithftanding there was no
Covenant, &c. from the Mort-
gagor. 358

Redemption and Forcclofure.

Where it appears a Mortgagee
has been in Poffeffion twenty
Years, no Redemption will
be allowed, unlefs there be an
Excufe by Reafon of Impri-
fonment. Infancy or Cover-
ture, or by having been be-
yond Sea, (not by having ab-
fconded, which is an Avoiding
or Retarding of Juftice ;) and
as the Court of Equity does
not think proper to allow of
a Redemption after twenty
Years, where there is no Dif-
ability, in Imitation of the
firft Claufe of the Statute of
Limitations, which after fuch
a Length of Time bars an
Entry or Ejedment: So it has
been refolved, that after the
Difability removed, the Time
fixed for profecuting in the

Provifo (which is ten Years)
ought in like Manner to be
observed. Page 287, 288 (N)

In a Bill brought to foreclofe the
Equity of Redemption, none
need be made a Party but the
Heir. 333 (N)

One poflefled of a Term for
Years, mortgages it, and dies,
leaving Debts by Bond, and
fonjc by fimple Contrad ; the
Equity of Redemption is equi-
table Aflets, and (hall be lia- ■
ble to all the Debts equally.

The Equity of Redemption of a
Mortgage comes to a Feme
Covert, againft whom and her
Hufband a Bill is brought to
foreclofe ; the Feme Covert
fliall be foreclofed abfolutely,
and fliall have no Time to
fliew Caufe after the Death of
her Hufband. 352

in a Foreclofure againft an In-
fant, though the Infant has
fix Months after he comes of
Age, to fliew Caufe, (ic. yet
he cannot ravel into the Ac-
count, nor even redeem, but
only fliew an Error in the
Decree. ibid.

An Equity of Redemption of a
Copyhold may be devifed
without being furrendercd to
the Ufe of the Will. 358

^^ultiplic(t)? of @iiit!3 p|f^
UcntcO Up Cquitp, iS7^ 334

^amc.

y^ Ta B L E of the Principal Matters

Bame»

DEVISE of a Legacy to a
Feme on Condition (he
marry a Man of the Name of
Barlow. A. takes upon him
the Name of BarloWy and the
Feme marries him; this is a
Performance of the Condition,
and Equity will not decree
the Hufband to retain that
Name. Page 65

Anciently People were called by
their Chriftian Names, and the
Places of their Births; zs Tho-
mas of D. &c. ibid.

One may of himfelf, and with-
out an Adl of Parliament,
change his Name, and take a
new one. ibid,

J12e ejeeat Kcrjmmi, See Tit.
mcft0»

domination to an atiijotufon*

See aODOUlfon*

Bominntion to a Cfjacitp. See

Notice of Motion given by one
not allowed to adl as Soli-
citor, not good. 104

Marrying an Infant Ward of the
Court, is a Contempt, though
the Parties concerned in fuch
Marriage had no Notice that
the Infant was a Ward of the
Court. J 1 6

A(fls of the Court, as the Com-
mitment of a Wardship, and
in a Caufe depending, to be
taken Notice of by every one
at his Peril. Page iij

One, not a Freeman of London,
married a City Orphan ; and
though it did not appear the
Party had any Notice of his
Wife's being a City Orphan ;
yet it was held fuch Perfon
was punifhable by the Court
of Orphans. 118 (N)

A Man founds a Charity for
Alms-Houfes. The Founder
and his Heirs may forfeit their
Right of Nomination of the
Alms-People, by a corrupt or
improper Nomination, or by
making no Nomination at all;
but this Negleft of Nomina-
tion muft be after fuch Time,
as the Founder, &c, have had
Notice of the Vacancy, and
without Proof of fuch No-
tice, it is no Fault. 146 (N)

A Commiflion being granted to
examine WitnefTes at Algiers,
the Plaintiff died, by which,
in Stridnefs, the Suit abated,
but the WitnefTes were ex-
amined before Notice of the
Plaintiff's Death ; the Exami-
nation held regular, though
one of the WitnefTes was yet
living. 19^

WitnefTes examined in a Com-
mifBon after the Demife of
the Crown, but before No-
tice thereof, liable to be in-
difted for Perjury, if they
fwear falfe. ig6

See I Ann2B,ftat. i. cap. 8. fedt. 5.

In a Plea of a Purchafe, it is a
fufficient Denial of Notice to

fay.

contained in /Z'^ Third Volume.

iay, that at the Time of the
Purchafe he had no Notice,
without faying, or at any
Time before. Fage 243

And in all Cafes of a Plea of a
Purchafe, or Marriage Settle-
ment, Notice muft be denied,
though not. charged by the
Bill ; and it is fufficient to de-
ny it either in the Plea or An-
fwer; however it is beft to
deny Notice in both. 244 (N)

In all Indiftments againft one for
being AccefTary after the Fadl,
by Receiving, Harbouring, ^c.
a Felon, it is neceflary to
charge that the Defendant
knew the Principal was guilty,
or convided of Felony ; and

■ the Omiflion of this neceflary
Ingredient is not to be helped
, by the Finding of the Ver-
dict ; efpecially if the Verdidt
does not find the Faft of No-
tice, but only what is Evi-
dence thereof. 493

An Outlawry or Attainder in a
particular County, may, as
the Cafe may happen to be
circumftanced, be fome Evi-
dence to a Jury of Notice to
an Acceflary in the fame
County, but cannot with any
Reafon or Juflice create an
abfolute Prefumption of No-
tice, fo as to excufe the not
charging the Y^.Qi to be done
fciens or fcientlr in the In-
didment. 496

SDatlj. See alfo afli5al)(t.

N Time given to anfwer,
a Defendant may put in a
Plea ; for that is as an An-
fwer, and on Oath. Page 8 1

Vol. III.

Otjjigatfon* See XonUi?.

A Church Leafe for three Lives
is granted to a Baftard and his
Heirs, who dies without If-
fue and Inteftate ; fhall this
Leafe go to the Adminiftrator
of the Baftard, or to the
Crown, or is the LeflTor enti-
tled, or is it Cajus omijjus out
of the A(ft of Frauds and Per-
juries, and fo remains liable
to Occupancy at Commoa
Law? 33'.34(N)

An Eftate pur mitre vie is di-
ftributable in, Equity, though
not in the Spiritual Court.

102

See alfo the 14 Geo. 2. whereby
this Kind of Eftate being un-
devifed, or in Part applied to
the Payment of Debts, ac-
cording to the Statute of
Frauds, fhall be diftributed in
the fame Manner as Perfonal
Eftate. ibid. (N)

An Eftate ptir autre vie may be
limited to A. in Tail, Re-
mainder to B. For this is only
a Defcription who ftiall take as
fpecial Occupants during the
Life of Cejluy que vie. 262

What

A Ta B L E of the Principal Matters

What Objedlion lies againft fuch
Remainder being good. Tage

263 (N)
At Law, and before the Statute

of Frauds, there could be no
general Occupant of a Rent ;
but iiHce that Statute, a Rent
granted, generally to A. for
the Life of B. fhall on A!%
Death, living B. go to the
Executors or Adminiftrators
of the Grantee, during the
Life of the Cefiiiy que -lvV.

264 (N)
An Eftate for three Lives is li-
mited to A. and the Heirs of
his Body, Remainder to B.
A. by Leafe and Releafe may
bar the Heirs of his Body as
claiming under him, but can-
not by any Adt bar B. 265

^are tamen.

And fee the Cafe of the Duke of
Grafton v. Hanmer. 266 (N)

Lands are given to A. and his
Heirs for three Lives. A. dies ;
his Heir does not take by
Defcent, fo as to have his
Age, or to make the Parol
demur, but takes as fpecial
Occupant. 368

A Parfon obtains blank Licences
for Marrying, under the Seal
of the proper Officer, and af-
terwards fills them up ; thefe
are void notwithftanding. 118

A, by his Intereft with the Com-
miffioners of Excife, gets an
Office in that Branch of the
. Revenue for E. who in Con-
fideration thereof gives a Bond
to A. to pay him 10/. per
I

Ann. fo long as B. enjoys the
Office ; Equity will relieve a-
gainft fuch Bond. Bage 391
Though the Excife was no Part
of the Revenue at the Time
of making the Statute of 5 G?
6 oi Ed. 6. [concerning the
Sale of Offices ;] yet there
may be good Ground to con-
ftrue it within the Equity and
Reafon of that Statute. 393

0?iD;inal» See ciKritjS.
£)?p()aiu See JLonUoiu

©iitlatD?!',

In an Indidment againft one as
Acceffary after the Fadl to a
Felony, by Receiving, Har-^
bouring, z^c. a Felon, who
was outlawed or attainted in
the fame County, it ought to
appear that the Party receiving,
did it fciens or fcienter ; for
though an Outlawry or At-
tainder in a particular County
may, as the Cafe may happen
to be circumftanced, be fome
Evidence to a Jury, of No-
tice to an Acceffary in the
fame County, yet it cannoC
with any Reafon or Juflice
create an abfolute Prefumption
of Notice. 496

Papift cannot take a Free-
hold or Leafehold by Will,
becaufe taking by Will is ta-
king

contained in the TniKT> VOLUME.

king by Purchafe ; and by the
exprefs Words of the Stat.

II Ci? 12 f^. 2' <^^p- 4- a ^^-
pift is difabled to take by Par-
chafe. Alfo Terms for Years
are exprefly mentioned in the
Statute. Page 46

Where a Judgment Was given to
a Papift, it was determined
that he could not extend the
Land ; for that would give
him an Intereft in the Land,
contrary to the exprefs Words
of the Statute above mention-
ed ; and it is the fame Thing
where the Judgment is given
in Truft for the Papift. 46 (N)

A Papift may, if above eighteen
and an half, take Lands by
Defcent ; alfo he may take a
Perfonal Eftate (as a Leafe for
Years) by the Statute of Di-
ftribution. 48

^. If a Papift be not capable
of taking as Tenant by the
Curtefy or Tenant in Dower,
thefe Eftates being caft on
them by hO. of Law ? 49 (N)

l^nrtJOtt* (See alfo Tit. Cicrff)),
and how and from ivhat Time
Burning in the Haiid by 18
Eliz. and Tranfportation by
4 Geo. I. cap. 11. are to be
looked on as Statute Pardons).

Where the Hufband was attaint-
ed of Felony, and pardoned on
Condition of Tranfportation,
and afterwards the Wife be-
came intitled to fome Per-
fonal Eftate as Orphan to a
Freeman of London ; this Per-
fonal Eftate decreed to belong
to the Wife, as to a Feme

, Sole, 37

By the i8th of Eliz. adlual
Burning in the Hand, as well
as the Allowance of Clergy,
was neceflary to [pardon or]
difcharge the Prifoner from
the Felony ; and therefore, if
before 4 Geo. i , cap. 11. an
Offender, after Clergy allow-
ed, had efcaped before he had
been burnt in the Hand, he
would have continued a Fe-'
Ion, and a Stranger, by Affift^
ing him to efcape, or unlaw-
fully Receiving, Harbouring^
&c. might have become Ac-
cefTary to his Felony after the
Fad. ^^^487

See alfo

Bafiiftiment cannot be but by
Adl of Parliament. 38

No Neceffity for an Aft of Par-
liament to change one's Name.

Patol Demur*

In the Cafe of Lands in Fee de-
fcending to an Infant, the
Parol {hall demur in Equity,
as well as at Law ; but if
Lands are given to A. and his
Heirs for three Lives 5 here
the Parol {hall not demur du-
ring the Infancy of the Heir,
who doth not take by De-
fcent, but only as fpecial Oc-
cupant. 368

Parol CUiDcitce. See aEui«
5cnce,

parfoiu

A Ta b l e of the Principal Matters

A Parfon obtains blank Licences
for Marrying, under the Seal
of the proper Officer, and af-
terwards fills them up } thefe
are void notwithftanding. Fage

ii8

One having a Baftard, leaves a
Perfonal Eflate to her Execu-
tor in Truft for the Baftard,
Vi^ho dies Inteftate, and with-
out Wife or Iflue. The Exe-
cutor brings a Bill againft one
who has Part of this Perfonal
Eftate in his Hands ; he need
not make the Attorney Ge-
neral a Party. 33

In a Devife of Lands to pay
Debts, if the Creditors bring
a Bill to compel a Sale, the
Heir is, generally, to be made
a Party ; (ecus in Cafe of a
Truft by Deed to pay Debts.

A. Tenant for Years, Remainder
to B. for Life, Remainder to
C. in Fee. A. is doing Wafte;
B. though he cannot bring
Wafte, as not having the In-
heritance, yet is intitled to
an Injunftion ; but not unlefs
the ReveiTioner or Remainder
Man in Fee be made a Party.

268 (N)

A general Rule, that no one need
be made a Party, againft whom,
if brought to a Hearing, the
Plaintiff" can have no Decree.
Thus a Refiduary Legatee need
2

not be made a Party ; neither
in a Bill brought by the Cre-
ditors of a Bankrupt againft
the Aflignees under the Com-
miflion, need the Bankrupt
himfelf be made a Party.
Page 3 1 1 (N)

However, in a Bill brought for
a Difcovery of fome Entries
and Orders of the Eaji-India
Company, the Secretary and
Book-keeper of the Company
being made Defendants, their
Demurrer was over-ruled, left
there fliould be a Failure of
Juftice. 310

A. covenants for himfelf and his
Heirs, that a Jointure-Hcufe
ftiall remain to the Ufes in
the Settlement, The Jointrefs
brings a Bill againft the Heir
for a Performance j though at
Law the Creditor may fue the
Heir only, where the Heir is
exprefly bound, yet as the
Perfonal Eftate is the natural
Fund to pay all Debts, and as
the Executor may make it ap-
pear that he has performed
the Covenant, the Executor
muft be made a Party in E-
quity. 331

In a Bill brought by a Mortga-
gee againft the Heir of a Mort-
gagor to foreclofe, the Exe-
cutor of the Mortgagor need
not be made a Party. 333 (N)

In a Bill for an Account of the
Perfonal Eftate of J. S. tho'
the Perfon who has a Right
to adminifter to y, S. be a
Party, yet this is not fufficient
without Adminiftration ac-
tually taken out. 349

partners

contained in the Third Volume.

^artncris ann iS)artncrf()ip,

Five Perfons purchafed Wefi Tho-
rock Level from the Commif-
lioners of Sewers, and the
Purchafe was to them as
Jointenants in Fee ; but they
contributed rateably to the
Purchafe, which was with an
Intent to drain the Level ; af-
ter which feveral of them
died ; they were held to be
Tenants in Common in Equi-
ty ; and though one of thefe
five Undertakers deferted the
Partnerftiip for thirty Years,
yet he was let in afterwards,
and upon what Terms. Page

158

A. and B. are Partners in Trade.
A. gives a Bond to leave his
Wife 1000/. A. dies, the o-
• ther Partner adminifters ; if
the Wife would be paid out
of the feparate Eftate of A.
on there being Efifedts, (he
{hall have a Preference before
other Creditors ; but if there
be no feparate Effedls, and the
Wife would have Satisfadtion
out of the Partnerfliip Effecfls,
then all the Partnerfnip Debts
muft be firft paid. 182

Leafe of a Coal-Mine to A. re-
fer ving a Rent ; A. the Lef-
fee declares himfelf a Truflee
for five Perfons, to each a
Fifth. The five Partners en-
ter upon, work and take the
Profits of the Mine, which
afterwards becomes unprofita-
ble, and the Leffee Infolvent ;
the Cejluy que Trufts not lia-
ble, but from the Time during
Vol. m.

which they took the Profits.

Pdge 402

See more of Partners and Part~

nerfiip, under Tit. "BiinK^

ruptg*

pattitioiT*

A. and B. Tenants in Common
of Lands in Fee. A. by Will
dated 25 °Janiiary^ 171 9> ^^~
vifed his Moiety in Fee. Af-
terwards A. and B. made Par-
tition by Deed dated 16 Mrty,
1722, and Fine, declaring the
Ufe as to one Moiety in Se-
veralty to A. in Fee, and as
to the other Moiety in Se-
veralty to B. in Fee -, this
Deed of Partition and Fine no
Revocation of the Will of A.
169, 170 (N)

Payment,

Triiji for Payment of Debt i. See

€ruf!»

Payment of Portions. See I30J»

tionfi*

Payment of Legacy. See JLf.

No Bill will lie for a Tenant to
be relieved out of the Arrears
of Rent, for the Taxes the
Tenant has adually paid on
Account of Rent relerved to a
Charity, which appears to be
exempted from Taxes. 1 28 (N)

So where Land was mortgaged
for fecuring an annual Pay-
ment of 20 /. to a Widow in
7 L Satis-

A Ta b l e 0/ the Principal Matters

Satisfadtion of her Dower ;
this annual Payment being fe-
cured out of Land, ought to
anfwer Taxes as the Land
does ; but if the Tenant in his
Payment of the Annuity to
the Widow omits to dedudl
for Taxes, he (hall not make
her refund in Equity. Toge

128 (N)

A Bond or Mortgage is, prima
facie, a good Evidence of a
Debt; but in Cafe Fraud ap-
pears, the Obligee, &c. ought
to prove adlual Payment. 289

Where a Man purchafes an E-
ftate, pays Part, and gives
Bond for Payment of the Re-
fidue of the Money ; Notice
of an equitable Incumbrance,
before Payment of the Mo-
ney, though after giving the

Bond, is fufficient.

General Paymejit, hoiv it JJ.all
be applied.

One has a Son and three Daugh-
ters, and is feifed of fome
Lands in Fee, and of others
in Tail, and by his Will de-
vifes his Fee-fimple Lands to
his Daughters, and dies, lea-
ving; all his Children Infants,
His Widow takes the Profits
of both Eftates as Guardian
to her Children ; and in a
Bill brought by the Son and
Daughters againfl; the Mother,
for an Account of the Per-
fonal Eftate, and of the Rents
and Profits of the Real Eftate,
the Mother fwears that flie
has paid Bond Debts due from
the Teftator out of the in-
tailed Eftate, and afterwards
I

dies Infolvent ; as the Anfwer
cannot be read againft the
Daughters, and there is no
other Evidence, and fince the
Guardian ought to have paid
the Bonds only out of the Fee-
fimple Eftate, Payment ftiall
be intended to have been made
out of that Fund which ought
to have borne it. Page 365
Prefumption of Payment of Mo-
ney on a Bond after twenty
Years, and no Intereft received
during that Time, and how
fuch Prefumption has been
taken off. 396, 397 (N)

pntroiiiigc* See ^?cfentatioit»

^ztx^ of tijc Ecalm*

No Appeal lies to the Houfe of
Peers from an Order or De-
cree of the Lord Chancellor,
or Lord Keeper, touching Lu-
naticks. 108

Peers exempted from being burnt
in the Hand in the Cafe of
Clergyable Felonies. 45 :;

Witnefles examined in a Com-
mifiion after the Demife of
the Crown, but before No-
tice thereof, liable to be in-
didted for Perjury, if they
fwear falfe. 196

See I Annje, ftat. i. cap. 8. fed. 5.

In a Plea of a Purchafe it is a
fufficient Denial of Notice for
a Defendant to fay, that at
the Time of the Purchafe he
had no Notice, without fay-
ing.

contained in the Third Volume.

ing, or at any Time before ;
and the Party, if it appears
that he had Notice before, will
be liable to be convidted of
Perjury, Page 244

A Corporation Aggregate, or
Company, can anfwer only
under their common Seal; and
though they anfwer never fo
falfely, there is no Remedy
againft them for Perjury. 3 1 1

Perpetuity. See Limitations of
Terms for Tears^ under Tit.

eaatr.

Pcrfanal ecfnte,

{Where the Perfonal Eftate Jl.all
be applied to exonerate the
Real Ef ate, fee Ecal CffJlte.)

A Freeman of hondon, before
Marria2;e, fettles fome Part of
his Perfonal Eftate upon his
intended Wife, to take EfFed
after his Death, without men-
tioning it to be in Bar of her
Cuftomary Part ; this will bar
her of fuch Cuftomary Part.

Alterations made by 11 Geo. i.
cap. 18. with Regard to al-
lowing Freemen of Lofidon
unmarried, and not having
Iffiie by any former Marriage,
to difpofe of their Perfonal
Eftate, 19, 2o(N)

A Baftard dies without lilue and
Inteftate ; the King is intitled
to his Perfonal Eftate, and the
Ordinary will grant Admini-
ftration thereof to the Paten-
tee or Grantee of the Crown.

A Papift may take a Perfonal
Eftate by the Statute of Di-
ftribution. Page 48

If a Man were to devife his Per-
fonal Eftate in Truft to pay
his Debts, ^i. If this would
revive a Debt barred by the
Statute of Limitations ? 89 (N)

An Executor or other Truftee
cannot change the Nature of
the Teftator's or Ceftity que
Trujl's Eftate, by turning Mo-
ney into Land, or a Leafe for
Years into a Freehold, Gf ^
coiiverjb. 100

Legacy or Portion is given out
of a Perfonal Eftate to J. S.
payable at twenty-one, and
y. S. dies before twenty-one,
yet the Legacy, &c. will go
to his Executors. 138

Perfonal Eftate purchafed after
making a Will, fliall yet pafs
by the Will. 171

Money articled to be laid out
in Land, and fettled on Huf-
band and Wife and IlTue, Re-
mainder in Fee to the Huf-
band, may, on there being
no Iflue, be devifcd (fubjeiS
to the Wife's Eftate for Life)
by the Huft)and as Perfonal
Eftate, and by a Will not at-
tefted by three Witneftcs, pro-
vided it appears the Hufb.ind
intended it lliould pafs as fuch.
221, 222 (N)

Though a Freehold cannot be in
Abeyance, yet a Perfonal E-
ftate may be kept in Sufpence,
in order to wait till a future
Contingency happens. 305

Exprefs Words, or Words tanta-
mount, are requifite to ex-
empt a Perfonal Eftate from
the Payment of Debts. 325

Though

A Ta b l e fl»/ the Principal Matters

Though at Law, a Creditor may
fue the Heir only, where the
Heir is exprefly bound ; yet
as the Perlbnal Eftate is the
natural Fund for Payment of
Debts, the Reprefentative
thereof {viz. the Executor)
muft be made a Party in E-
qnity. -P'?,?^ 331

In a Bill brought by a Mortga-
gee to foreclofe an Equity of
Redemption, there is no need
to make the Reprefentative of
the Perfonal Eftate a Party,
or to run into any Account
thereof, 333 (N)

^in=^oncp» See "^aton ann
iremc*

pacc='B20cao:e TDonU* See
tit. C>ffice.

plea. See more Tit. ECpIlCa-

tion.

A Defendant cannot demur and
plead to the fame Part of a
Bill ; for the Plea over-rules
the Demurrer. 80

On Time given to anfwer, a De-
fendant may put in a Plea,
for that is as an Anfwer, and
on Oath. 8i

A Defendant in his Plea of a
Purchafe for a valuable Con-
fideration, omits to deny No-
tice J if the Plaintiff replies to
it, all the Defendant has to
do is to prove his Plea ; and
it is not material if the Plain-
tiff proves Notice ; for it was
the Plaintiff's own Fault that
he did not fet down the Plea
to be argued, in which Cafe

it would have been over-ruled.

Tage 94
The Statute of Limitations no
Plea where the Bill charges a
Fraud; but then it fliould be
charged by the Bill, that the
Fraud was difcovered within
fix Years before the Bill filed.

H3
In the Cafe -of the South-Sea

Company, in whom the E-
ftates of the late Dire<S;ors are
vefted by Adl of Parliament ;
where the Statute of Limita-
tions might have been pleaded
againft the late Diredtors, it is
pleaded againft the Company,
who ftand but in fuch Direc-
tors Place. ibid.

So where, though the Affignee
of the Effeds of a Bankrupt
claims under the Adt of Par-
liament ; yet as the Statute of
Limitations might be pleaded
againft the Bankrupt, it is by
the fame Reafon pleadable a-
gainft fuch Affignee. 144

When a Plea is ordered to ftand
for an Anfwer, it muft be in-
tended a fufficient Anfwer,
fo that the Plaintiff cannot
except to it. ^ 239, 240

In the Plea of a Purchafe, it is
a fufficient Denial of Notice
to fay, that at the Time of
the Purchafe he had no No-
tice, without faying, or at
any Time before. 243

In a Plea of a Purchafe or Mar-
riage Settlement, Notice muft
be denied, though not charged
by the Bill ; and it may be
denied either by the Plea or
Anfwer, but it is beft to deny
it by both. 244 (N)

contained in the Third Volume.

A Precedent where a Reconcilia-
tion by the Hufband, after the
Wife's going away with the
Adulterer, is fpecially pleaded,
and the Plea allowed. P^ge

273 (N)

In the Pleading of a Purchafe or
Mortgage, the Defendant muft
plead that the Seller or Mort-
gagor was, or pretended to be,
feifed in Fee. 281

If to a Bill the Defendant an-
fwers as to Matter of Difco-
very, and pleads only as to
Relief, the Plaintiff may ex-
cept to any Matter of Difco-
very before the Plea argued.

327 (N)

If the Defendant's Time for an-
fwering be out, the Court will
•notwithftanding order Pro-
ceedings to be revived, unlefs
it be fliewn either by Plea or
Demurrer; its appearing by
Anfwer will not be fufficient.

348

After a Plea put in, there can
be no Motion for an Injunc-
tion, till the Plea is argued.

396

POOJ. See alfo CljatltJ).

In a poor Caufe, and where the
Matter is clear, to fave Ex-
pence, the Court will refer it
to the Regifter, inflead of the
Mafter, to compute the In-

. tereft or Arrears of Rent. 258

Vol. III.

€lj(lD?en« See .Maintenance*

Legacies or Portiom vejiedy
under Tit. lefffiCp* See Truft
for raifmg Portions and Pay-
ment of Debts, under Tit,

Cuift*

If Money be devifed to an In-
fant Daughter who marries,
the Couit may refufe helping
the Huftand to the Money,
unlefs he makes a fuitable Set-
tlement. P(-g^ 12

Though if the Portion be fmall,
and the Hufband a Freeman
of London, the Cuftom of
London is a fuitable Provision.

Where Lands are charged with
Portions, and no Time ap-
pointed for Payment, the
Right to the Portions veft im-
mediately. 120

A Portion is fecured out of Land,
and the Daughter dies before
the Portion becomes payable ;
the Portion finks. 138

In all Cafes where a Hufband
makes a Settlement of his own
Eftate on his Wife, in Con-
fideration of her Fortune ; the
Wife's Portion, though con-
fifling of Chojes en ASlion, is
looked on as purchafed by
him, and will go to his Exe-
cutor. 199 (N)

Poffibilftp*

A Contingent Interefl or PofTi-

bility in a Bankrupt is aflign-

7 M able

A Ta b l e of the Principal Matters

able by the Commifiioners.
Tage 132

Term of 1000 Years to fecure
Daughters Portions, payable at
fixtecn Years of Age ; provided
if no Daughter at the Time of
Failure of Iffue Male, the
Portion to fink. There is a
Daughter who attains to fix-
teen, and marries without
Confent, and no Son by the
Marriage ; but the Daughter
dies in the Life-time of the
Father and Mother, and con-
fequently when there was a
Poffibility of their having a
Son; the Portion finks. 134

See an Objedlion againft an E-
flate pir autre vie being li-
mited over after an Eftate-
tail, on Account of fuch Re-
mainder's being only a Pofii-
bility. 263 (N)

Teftator devifed a Term for Years
and all his Perfonal Eftate to
yl. an Infant, and if j4. died
during his Infancy, and his
Mother ihould die without
any other Child, then to B.
A. died during his Infancy ;
though the Mother was living,
and might have a Child, yet
the Court aided B. the Devi-
fee over, by direding an Ac-
count and Difcovery of the
Eftate, in order to fecure it,
in Cafe the Contingency
(hould happen. 300

l^OtUCl* See ailtrja?(tp*

PK^o^uiti^c of tijc Ctoirnu

A Baftard dies without Wife or
Illue, and Inteflate ; the King

is intltled to his Perfonal E-
ftate, and the Ordinary of
Courfe grants Adminiftration
to the Patentee or Grantee of
the Crown. Page 33

%/. If a Church Leafe for three
Lives be granted to a Baftard
and his Heirs, who dies with-
out Iffue and Inteftate, Ihall
the Crown be intitled thereto,
or what fhall become of it ?
33>34(N)

No Appeal lies from an Order
or Decree of the Lord Chan-
cellor, or Lord Keeper, in
Cafes of Ideocy or Lunacy,
but only to the King in
Council. 108

The Lord Chancellor, (Sc. ha-
ving Jurifdi<flion therein, not
as Chancellor, Gfc but by
Virtue of a Royal Sign Ma-
nual, ibid. (N)

The King's Grant of the Eftate
of a Lunatick without Ac-
count is void ; but the King,
or the Lord Chancellor, &c.
may allow fuch a yearly
Maintenance to a Lunatick, as
amounts to the yearly Value
of the Lunatick's Eftate. 1 10

The Writ of Ne exeat Regnum
formerly a State Writ, and
made ufc of only by the
Crown. 313

The Kin2,'s Courts ought not to
give away the Revenue of the
Crown upon original Writs,
nor confequently to order the
filing an Original to make
good a Judgment on Error
brought, without fome Ex-
cufe foi not filing one before.

314

PKffIt=

contained in the Third Volume.

p^efentntiou to a Cfjurclj o?
Cljapcl.

An Advowfon defcending to an
Heir is Real Affets, and, as it
feems, extendible in an £/f-
git. Page 401

alfo Tit. acceffatp.

See

One may be an Acceffary to a
Felony after the Fa(fl, by Af-
fifting a Felon convidt, being
in Cuftody under Sentence of
Tranfportation, to efcape out
ofPrifon. 485

In all Indictments againft one
for being Acceffary after the
Fail, by Receiving, &c. a Fe-
lon, it is neceffary to fliew
that the Defendant knew the
Principal was guilty, or con-
victed of Felony. 493

Pitfoii nnn 31mp?ifanmctit

One taken on a Supplicavit, and
continued in Prifon a Year
without any frelh Threatning,
ought to be difcharged. 103

Nothing more oppreffive than
indefinite Imprifonment. ibid.

Reafonable that a Sequeftration
fhould lie in Cafe one taken
by Procefs of Chancery, con-
tinues in Prifon without pay-
ing his Debts. 241

In an Indidlment for an Offence
of Breaking a Prifon, it is
neceffary to lay an adtual
Breaking, 484

In an Indidment for Refcuing
a Prifoner, the Word Refcuf-
Jit, or fomething equivalent,
muff be ufed, to fliew it was
forcible, and againft the Will
of the Keeper. Page 484

One may be Acceffary to a
Felony after the Faft, by Af-
fifting a Felon convidt, being
in Cuftody under Sentence of
Tranfportation, to efcape out
ofPrifon. 485

See alfo of the jflCCt 13?(f0lU

The Father has an undoubted
Right to the Guardianlhip of
his own Children, and if he
can any way gain them, is at
Liberty fo to do, but muft
not take them in going to, or

returning

from

the Court.

f lo&ate. See Tit. mm.

P^OCCfjS. See more under Tit.

Contempt

Attachment.

The Court of Chancery fends
Attachments to the Warden
of the Fleet. 55

The Sheriff is the proper Perfon
to execute Procefs j but where
he is Party, or otherwife in-
capacitated, it muft be direct-
ed to the Coroner. ibid.

Sequep-a-

A Ta b l e of the Principal Matters

Sequeflration,

•

In Chancery, not only the Body
of the Defendant, but alfo his
Lands and Goods, are hable
to a Sequeftration ; but no Se-
queftration lies, till the Time
for the Return of the Attach-
ment is out, on which the
Body was taken. P(^g^ 240

Reafonable that a Sequeftration
fliould lie, in Cafe one taken
by Procefs of Chancery, con-
tinues in Prifon without pay-
ing his Debts. 241

When Lands are decreed, the
Manner of gaining Pofieflion
is, firft to ferve the Party with
a Writ of Execution of the
Decree, then to have an At-
tachment for a Contempt in
not obeying the Decree, and
afterwards an Injundlion to
deliver PofTeflion of the Pre-
inifTes ; and if that is not done,
to have a Writ of Afliftance
to the Sheriff; but when a
Receiver is appointed, this
being as it were the Hand of
the Court, he will in a fum-
iriary way be put in Poffef-
lion, and the Tenants ordered
to attorn to him, and a Writ
of Afliftance granted, without
" awarding an Injundlion, which
is the iifual preceding Pro-
cefs. _ 379 (N)

^?Ofit£j. See Triift jor raifwg
Daughters PortionSy under

Tit. Cnift*
|&?ocI)em duip. See Jnfant*

p?oof« See Cijiticncc.
p?opo2tioiu See 5\jccafic»

IPublication*

After the Defendant has been ex-
amined on Interrogatories, and
Publication pafled, the Plain-
tiff ought not to have a Com-
mifTion to examine WitnelTes,
in order to falfify the Defen-
dant's Examination. Page A^i"^

f^urcljafE tiiffinttiiinjcli ftom
2)efccnt, See ^cir*

Purchafe and Purchafer.

A Papift is by II Gf 12 ;r. 3.
cap. 4. difabled to take by
Purchafe, which has been con-
ftrued to extend to taking by
Will. 46

A Defendant in his Plea of a
Purchafe for a valuable Con-
iideration omits to deny No-
tice ; if the Plaintiff" replies to
it, all the Defendant is to do
is to prove his Purchafe. 94

One articles to buy Land, and
the Title is under a Will not
proved in Equity againft the
Heir ; yet in fome Cafes E-
quity will compel the Pur-
chafer to accept the Title. 1 90

In all Cafes where the Hufband
makes a Settlement of his own
Eftate on his Wife, in Con-
lidcration of her Fortune ; the
Wife's Portion, though con-
fifting oiChofcs en ABio?7, and
though there be no particular

Agree-

contained in the Third Volume.

ment for that Purpofe, is
looked upon as purchafed by
him. Fage 199 (N)

30,000/. is covenanted to be
laid out in Land ; the Money
need not be laid out all toge-
ther upon one Purchafe ; but
if laid out at feveral Times, it
is fufticient ; and if the Cove-
nantor dies, having purchafed
fome Lands which are left to
defcend, this will be a Satif-
fadtion pro tanto. 228

In the Plea of a Purchafe, it is
a fufficient Denial of Notice
to fay, that at the Time of
the Purchafe he had no No-
tice, without faying, or at any
Time before. 243

In the Plea of a Purchafe or
Marriage Settlement, Notice
muft be denied, though not
charged by the Bill, and it is
heft to deny it both in the
Plea and Anfwer. 244 (N)

In the Pleading of a Purchafe or
Mortgage, the Defendant mufl:
plead that the Seller or Mort-
gagor was, or pretended to be,
feifed in Fee. 281

A Truft Eftate was decreed to
be fold to the beft Purchafer.
A. articles to buy the Eftate
of the Truftees, and brings a
Bill againft them to perform
the Contrail ; the Court will
make no Decree, but leave
the Plaintiff" to go before the
Mafter, and get himfelf re-
ported the beft Purchafer.

282

Where a Man purchafes an E-
ftate, pays Part, and gives
Bond to pay the Refidue of
the Purchafe Money ; Notice
of an equitable Incumbrance
, Vol. III.

before Payment of the Mo-
ney, though after the Bond,
is fufficient. ^^g^ 307

A Fine and five Years Non-
claim fliall, in Favour of a
Purchafer, bar a Truft Terra,
though the Cefiuy que Truft be
an Infant. 310 (N)

A Term affigned by an Executor
in Truft to attend the Inheri-
tance, Oiall, in Equity, fol-
low all Eftatcs created out of
it, and all Incumbrances fub^
fifting thereon, and is fo con-
neded with it, as not to be
fevered to the Detriment of a
bond fide Purchafer, who (hall
have the Benefit of all Interefts
which the Mortgagor had at
the Time the Mortgage was
made, unlefs againft an inter-
mediate Purchafer without No-
tice. 330

Where by the Statute of Frauds
it is faid, that Judgments fliall
not bind Lands but from the
Signing, this relates only to
Purchafers. 399

Ecnl Cff nte. {^ee Matters con-
troverted between the Heir and
Executor, under Title ^EU*,

alfo afiteemcntO

TRuftce, Guardian or Exe-
cutor, cannot change the
Nature of the Ceftuy que 'Truft'i
Eftate, by changing a Perfonal
into a Real Eftate, nor e con-
verfo, 100

Though the Spiritual Court can-
not intermeddle with a Free-
hold (or Real Eftate) to di-
7 N ftribute

y^ Ta B L E of the Principal Matters

ftribute it, yet Chancery can

inforce fuch a Diflribution.

Page 1 02

See alfo the Statute of 14 Geo. 2.

ibid. (N)

A Leafe granted to one and his
Heirs for three Lives, is a Real
Eftate; and though by the Sta-
tute of Frauds it is made lia-
ble to pay Debts, yet it is
only fuch Debts as bind the
Heir; and where the Spiritual
Court fet afide a Will difpo-
fing {inter al') of fuch Eftate,
as revoked, this Sentence did
not affedl the Devife of fuch
Real Eltate. 166

Real Eftate cannot pafs by a
Will made before the Pur-
chafing thereof. 170, 171

JVbere the Perfonal Eftate P:all
or Jhall not be applied to exo-
nerate the Real.

One devifes all his Perfonal E-
ftate to his Daughter, and all
his Real Eftate to Truftees, in
Truft to pay Debts, iic. Re-
mainder to his Daughter in
Tail, Remainder over ; the
Perfonal Eftate fliall in the
firft Place be applied to pay
the Debts. 324

Exprefs Words, or Words tanta-
mount, are requifite to ex-
empt the Perfonal Eftate from
Payment of Debts. 325

Every Mortgage, though with-
out any Covenant or Bond
to pay the Money, implies a
Loan, and every Loan implies
a Debt ; therefore an Heir of
a Mortgagor fliall compel an
Application of the Perfonal
Eftate to pay oft' a Mortgage,

though there was no Cove-
nant, c=ff . from the Mortgagor.
Page 358

The Appointing a Receiver is
not in all Cafes a Turning the
Party out of Pofleflion ; as
where a Receiver is appointed
of an Infant's Eftate, the Re-
ceiver's Poffeftion is the Pof-
feflion of the Infant ; but on.
the Appointing a Receiver in
an adverfary Suit, as where
the Plaintift" in Ejeftment has
recovered a Vcrdidl ; here the
Receiver's PofTelTion feems to
be the Pofleflion of him that
has the Right to it. 379

As the Receiver is the Hand of
the Court, he will be put in
Polfeflion in a fummary way,
by ordering the Tenants to
attorn to him, and granting
him a Writ of Afliftance,
without firft awarding an In-
iundlion, which is, in other
Cafes, the ufual Procefs.
ibid. (N)

laccoiynifance*

One taken on a Supplnavit, and
continued in Prifoii a Year
without any frefti Threatning,
dilcharged on enteiing into a
Recognifancc before a Mafter
in 1 00/. with two Sureties ia
50 /. each, to keep the Peace.
103, 104

EccojUrc cf Lonnoiu See
LottDon.

contained in the Third Volume.

Tenant in Tail Male, Remainder
to hiflifeif in Fee, devifes his
Lands to y. S. and then fuf-
fers a Recovery to the Ufe of
himfelf in Fee, and dies with-
out Illue Male ; this is a Re-
vocation of the Will. Page

163

i/J. covenants on his Marriage to
lay out 3000/. in the Fur-
chafe of Land, and to fettle
it on ^. in Tail, Remainder
to B. A. purchafes the Ma-
nor of D. with this 3000 /.
and never fettles it, but fuf-
fers a Recovery thereof; as
the Covenant was a Lien on
the Land ; fo the Recovery
fuffered thereof difcharges the
Lien, and bars B. of the
Benefit of the Covenant, and
of the Remainder. 171

The Father Tenant for Life, Re-
mainder to the Son in Tail,
with Remainder over. The
Son is an Infant, and on an
advantageous Match being pro-
pofed for the Son's Marriage,
the Father and Infant Son join
in Marriage Articles, and the
Father only covenants, that
within a Year after the Son's
coming to Age, the Father
and Son will join in a Fine
and Recovery of the Fatnily
Eftate to divers Ufes. The
Infant Son feals the Deed,
and within a Year after he
comes to ^2,^^ joins with his
Father in a Fine and Reco-
very ; the Infant Son's Sealing
of thefe Articles not fiifficient

to declare the Ufes of the
Fine and Recovery. Fage 206

No precife ''Form of Words re-
quifite to declare the Ufes of
a Fine and Recovery, provi-
ded the Meaning of the Par-
ties fufficiently appears. 208

Tenant in Tail of a Rent grant-
ed de 710V0 without any Re-
mainder over, fuffers a Reco-
very ; this will not give an
abfolute, but only a determi-
nable Fee, 230

Tenant in Tail of Lands mort-
gaged not bound to keep
down the Intereft, as Tenant
for Life is, even though the
Tenant in Tail fliall have died
during his Infancy, and con-
fequently before it was in his
Power to have barred the Re-
mainder by a Recovery, 235

In a poor Caufe, to fave Ex-
pence, and where the Mattel*
is clear, the Court will refec
it to the Regifter, and not to
the Mafter, to compute the
Intereft or Arrears of Rent.

258

In the Difcretion of the Court
whether or no to gr^nt a Re-
hearing. 8

Order for a Rehearing refufed to
be difcharged, though at the
Diftance of about twenty-four
Years. ibid. (N)

An Agreement was figned by the
Parties, and by Confent made

A Ta b l e of the Principal Matters

an Order of Court, to fubmit
to fuch Decree as the Court
fliould make, and neither Par-
ty to bring an Appeal j yet
the Caufe allowed to be re-
heard. -P^i;^ 242

Relation*

One having a Right to admini-
iler to y. S. brings a Bill for
an Account of J. S.'s Perfonal
Eftate, which Bill being de-
murred to, the Plaintiff took
out Adtniniftration to y. S.
and charged the fame by way
of Amendment ; this held to
be fufficient, for that the Ad-
miniftration, when taken out,
related to the Time of the
Death of the Inteftate. 3 5 1

So where an Executor, before
Probate, files a Bill, and after-
wards proves the Will ; fuch
fubfequent Probate makes the
Bill a good one. iMJ.

See Concermng the Relation of
Judgments figned in Vacation,
to the preceding Term^ Tit.

Ecleafc*

Devife to fuch of the Children
of A. as fliail be living at his
Death. A. ha^Ifliie B. who
becoming a B:inkrupt, gets
his Certificate allowed, after
which A. dies ; this Contin-
gent Intereft is liable to the
Bankruptcy, forafmuch as the
Son in the Father's Life-time
might have releafed it. 132

Where a Daughter of a Freeman
of London accepts of a Legacy
of 10,000/. left her by her
Father, who recommended it
to her to relcafe her Right to
her Orphanage Part, which
fl^e does releafe accordingly ;
if the Orphanage Part be
much more than her Legacy,
though the was told (he might
eleft which flie pleafed ; yet
if fhe did not know flie had a
Right firft to inquire into the
Value of the Perfonal Eftate,
and the ^ajitum of her Or-
phanage Part, before flie made
her Eledlion ; this is fo ma-
terial, that it may avoid her
Releafe. P^^g^ 3 1 6

In what Manner a Party re-
leafing ought to be informed
of his Right, fo as to be
bound by fuch Releafe. 321

Though, generally fpeaking, an
Executor or Truftee com-
pounding, or releafing a Debt,
muftanlwer for the famej yet
if it appears to have been for
the Benefit of the Truft E-
ftate, it is an Excufe. 381

Eelicf,

A Bill is brought by a Lord of
a Tvlanor to recover a Fine for
a Copyhold, on a Suggeftion,
that ' the Defendant was ad-
mitted by Attorney, but fome-
times pretends the Attorney
had no Authority to take fuch
Admittance ; the Defendant
anfwers as to Part, and demurs
as to Relief; the Demurrer
held good. 148

Lord

contained in the Third Volume.

Lord brings a Bill again ft Te-
nant to recover a Quit-Rent,
alleging that the Land out of
■which the Quit-Rent iflues,
by Reafon of the Unity of
Poffeffion of that with other
Lands, is not known ; the
Defendant anfwers as to Dif-
covery, and demurs as to Re-
lief j Demurrer good. ^cere.
Fage 149

jaemainuer*

If A. be a Copyholder in Tail,
Remainder to B. in Fee, and
A. takes a Grant of the Free-
hold from the Lord to him
and his Heirs, and dies with-
out Iflue; ^. If 5, in whom
there was once a vefted Re-
mainder in Fee in the Pre-
mifles, is not intitled to the
fame? 10 (N)

Where a Term for Years is de-
vifed to A. for Life, Remain-
der to B. and the Executor
affents to the Devife to A,
this is a good AfTent to the
Devife over. 12

Where the Ufe of Goods is given
to one for Life, Remainder
over ; the Cejliiy que Ufe for
Life muft fign an Inventory,
cxpreffing that he is intitled to
thefe Things for his Life, and
that afterwards they belong to
the Perfon in Remainder. 336

See more concerning Remainden
being good, under Tit. Limi-
tation of Terms for Tears, &c.
Tit. (2Eftate J alfo under Tit.

Ecntsi,

Vol. III.

A Tenant who had paid Taxes
on Account of a Charity
which appeared to be exempt-
ed from Taxes, not fuffered
to be relieved out of the Ar-
rears of Rent in his Hands.
P^^f i28(N)

As the Profits of the Wife's Land
would belong to the Hufband
during the Coverture, fo the
Rent ifTuing out of the Land
during that Time, and which
is payable by the Tertenant
in Refpedl of the Profits, be-
long to the Huftand, who
may avow alone for Rent in-
curred during t'"'e Coverture.

200

If a Rent de novo be granted in
Tail, without any Remainder
over, and Tenant in Tail takes
Wife, and dies without Iffue;
the Wife (hall not be endow-
ed, becaufe the Thing out of
which the Dower is to arife,
is not in Being. Secus, if the
Rent were granted in Tail,
Remainder over. 230

Tenant in Tail of a Rent grant-
ed de novo, without any Re-
mainder over, fuffers a Reco-
very ; this will not pafs an
abfolute, but only a determi-
nable Fee. ibid.

On what Suppofition the Law
allows the Remainder of a
Rent granted de novo, to be
good. ibid. (N)

One devifes a Rent-charge to be
fold to pay Legacies amount-
ing to 800 /. and if the Rent-
charge (hould fell for 1000/.
7 O the

A Ta b l e 6?/ the Principal Matters

the Teftator gives a further
Legacy of 200 /. The Rent-
charge fells for above 800 /.
and lefs than 1000 /. what
exceeds the 800 /. fliall be-
long to the Heir. I* age 252

A Legacy out of a Rent-charge
fhali carry Intereft. 254

In a poor Caufe, to fave Ex-
pence, and where the Matter
is clear, the Court will refer
it to the Regifter, inftead of
a Mafter, to compute, the Ar-
rears of Rent. 258

At Law there could be no ge-
neral Occupant of a Rent :
As if I had granted a Rent
to A. for the Life of B. and
A. had died living B. the
Rent would have determined.

264 (N)

If a Man had granted a Rent to
A. his Executors and Affigns,
during the Life of B. and af-
terwards the Grantee had died,
leaving an Executor, but no
Aflignee, the Executor fliould
not have had the Rent, which
being a Freehold, could not
have defcended to an Execu-
tor ; but this is helped by the
Statute of Frauds, fince which,
if a Rent be granted to A. for
the Life of B. and A. die,
living B. A.'s Executors or
Administrators fhall have it
during the Life of B. for the
Statute is made not only to
prevent the Inconveniency of
Scrambling for the Eftate, but
alfo for continuing it during
the Life of the Cejiuy que vie.
ibid. (N))

^it-Rent.

Lord brings a Bill againft Tenant
to recover a Quit-Rent, al-
leging, that the Land out of
which the Quit-Rent iflues,
by Reafon of the Unity of
PoflelTion of that with other
Lands, is not known ; the
Defendant anfwers as to Dif-
covery, and demurs as to
Relief ; the Demurrer good.
^are. P^g^ 149

Though a Bill in Equity to re-
cover a Quit-Rent may, un-
der fome Circumftances, be
proper, yet it ought to ap-
pear therein that the Plaintiff
has no Remedy at Law. 256,

257

Replication, See Tit. pea*

A Defendant in his Plea of a
Purchafe for a valuable Con-
fideration, omits to deny No-
tice ; if the Plaintiff replies to
it, all the Defendant has to
do, is to prove Notice. 94

If a Defendant puts in an An-
fwer to a Bill brought by an
Infant, who does not reply
to it, fuch Anfwer mufl:, it
feems, be taken to be true ;
in Regard the Defendant, for
want of a Replication, is de-
prived of an Opportunity of
examining Witneifes to prove
his Anfwer. 237 (N)

S^are tamen.

Hefctte,

contained in rZ'^ Third Volume.

Eefcue,

In an Indidment for a Refcue
of a Prifoner, the Word Ref-
cujjity or fomething equiva-
lent, muft be ufed, to fliew
it was forcible, and againft
the Will of the Keeper. Page

484

Eetainec* See etccuto?*

One who had been a Prifoner in
Newgate for Debt, but fince
removed to the Fleet, is ex-
communicated j the Court of
Chancery will not dired the
Curfitor to make out a Writ
of Excojjimunicato Capiendo to
the Warden of the Fleet j but
the Writ may be diredted to
the Sheriff, who may return
a Non ejl Inventm^ and on
this Return, B. R. may grant
an Habeas Corpus, and there-
on charge him with an Ex-
communicato Capiendo, 53

A. has two Sons B. and C. and
on the Marriage of B. A. let-
ties Part of his Lands on B.
in Tail ; and A. being feifed
in Fee of the Reverlion of
thefe Lands, and of other
Lands in PoffefTion, devifes
all his Lands and Heredita-
ments not otberwife by him
fettled or difpofed of; the Re-

verfion in Fee will pafs. P^ge

The Reverfion in Fee is Part of
the old Eftate, and if the
Owner had the Land as Heir
of the Mother, the fame fliall
defcend to the Heir on the
Mother's Side ; fo if it was
Borough Englif} or Gavelkind^
it {hall defcend accordingly.

Regularly a Remainder is carved
out of a Reverfion ; fo that
where there would have beea
no Reverfion, there can be no
Remainder ; but this does not
hold in the Cafe of a Rent
created de novo, of which the
Law allows a Remainder to
be granted. 230 (N)

A. Tenant for Years, Remainder
to B. for Life. A. is doing
Wafte ; B. though he cannot
bring Wafte, as not having
the Inheritance, yet he is in-
titled to an Injundtion. But
the Court will not injoin, un-
lefs the Reverfioner in Fee be
made a Party, who poffibly
may approve of the Wafte.

268 (N)

EcDieUJ, a'iiU of,
-Bill.

See Tit.

EeUocation of a m\\\. See

under Tit. ^UU

^atijSfaaioiU See alfo Tit.

Freeman of London before
Marriage fettles fome Part

A Ta b l e of the Principal Matters

of his Perfonal Eftate upon
his intended Wife, to take
Effeit after his Death, with-
out mentioning it to be in Bar
[or Satisfadlion] of her Cufto-
mary Part ; this will bar her
of fuch Cuftomary Part. Page

It is the Intention of the Party
which makes the pretended
Equivalent a Satisfadion or
not. 225

A Father's Permitting Lands to
defcend in Fee, juft of the
fame Value with Lands cove-
nanted to be fettled in Tail ;
this is a Satisfaction. ibid.

A Matter of lefs Value not to be
taken in Satisfaction for what
is of a greater Value. 226

Lands of much greater Value
left to a Daughter, no Satif-
fadtion for a Portion. ibid.

Et vide infra.

30,000 /. is covenanted to be
laid out in Land ; the Money
need not be laid out all toge-
ther upon one Purchafe ; but
if laid out at feveral Times, it
is fufficient j and if the Cove-
nantor dies, having, after the
Covenant, purchafed fome
Lands which are left to de-
fcend, this will be a Satif-
fadtion pro ianto. 228

In a Settlement a Term was
raifed for Daughters Portions,
"oiz. 10,000/. with a Provifo,
that if the Father by Deed or
Will fliould give or leave the
Sum of 10,000/. to his faid
Daughters, it {hould be a Sa-
tisfaction ; the Father leaves
Land to the Daughters of the
Value of 10,000/. this no
Satisfaction. 245

Et vide fupra.

Money and Land go in a quite
different Channel, and there-
fore the one not to be taken
in Satisfaction for the other.
Page 24;^

Hufband on Marriage lettled
1 00 /. per Annum Pin-Money
in Trult for his Wife, for her
feparate Ufe, which becomes
in Arrear, and then the Huf-
band by Will gives the Wife
a Legacy of 500/. after which
there is a further Arrear of
the Pin-Money, and then the
Hufband dies ; this Legacy,
being greater than the Debt,
decreed, even in the Cafe of a
Wife, to be a Satisfaction of
Pin-Money due before the
making of the Will. 353

Where Pin-Money is fecured to
the Wife, and the Hulband
finds her in Clothes and Ne-
ceffaries ; this is a Bar [or Sa-
tisfaction] as to any Arrears
of Pin-Money incurred du-
ring fuch Time. 355

One having by his Will given
his Wife 600 /. in Money,
on his Death Bed ordered his
Servant to deliver to his Wife,
then prefent, two Bank Notes,
payable to Bearer, amounting
to 600 /, faying, he had not
done enough for his Wife ;
this Gift held to be additional,
and not to be a [Satisfaction
or] Payment of the former
Legacy in the Teftator's Life-
time. 3 56

•Sccutitic^l

contained in the Third Volume.

The Court will" not, without
Difficulty, fet afide a Security
made under a Decree, and
approved of by the Mafter.

Fage 8
One being feifed of Lands in Fee
in A. and poffeffed of an ex-
tended Intereft upon a Statute
in B. devifes all his Lands,
Tenements and Real Eftate
in A. and B. to J. S. and
his Heirs ; this will not pafs
the Extended or Chattel In-
tereft in B. efpecially if there
be another Claufe in the Will,
which (infer al') difpofes of
all the Teftator'g Debts or
Credits. 26

Where a Judgment was given
to a Papift, it was refolved he
could not extend the Land,
for that would give him dn
Intereft in the Land, contrary
to the exprefs Words of i r
6f. 12 of /^. 3. which makes
Papifts incapable of taking any
Intereft in Land. 46 (N)

If the Wife has a Judgment and
it is extended upon an Elegit,
the Huft).'.nd may alUgn it
without a Confideration. If
a Judgment be given in Truft
for a Feme Sole, who mar-
ries, and by Confent of her
Truftees, is in PoflTeffion of
the Land extended, the Huf-
band may affign over the ex-
tended Intereft. And by the
fame Reafon, if a Feme has
a Decree to hold and enjoy
Vol. m.

Lands, until a Debt diie to
her is paid, and flic is in Pof-
feflion under this Decree, and
marries, the Huft)and may af-
fign over ths Benefit of this
without any Confideration,
for it is in Nature of an Ex-
tent. Page 20a
Where a Man purchafes an E-
ftate, pays Parr, and gives
Bond to pay the Refiduo of
the Money ; Notice of an
equitable Incumbrance before
Payment of the Money, tho'
after the Bond, is fufficient.

307
The Court will not order the

Filing an Original to make
good a Judgment on Error
brought, without fome Excufe
for not having filed one be-
fore J tho* a flender Excufe
may be fufficient. 314

A Term afhgned to attend the
Inheritance (hall, in Equity,
follow all the Eftates created
out of it, and all Incum-
brances fubfifting upon it. 330

Where by the Statute of Frauds
it is faid, that Judgments (hall
not bind Lands, but from the
Signing, this relates only to
Purchafers ; therefore, as be-
tween Creditors, a Judgment
entered in the Vacation relates
to the firft Day of the pre-
ceding Term. 399

A. died feifed of fome Lands in
Fee, and confiderably indebt-
ed by Judgment and fimple
Contradt ; and after the Death
of A. and before the EfToign
Day of the next following
Term, many of the Judgment
Creditors delivered Fieri Fa^
cias's to the Sheriff, who took
, 7 P the

A Ta b l e of the Principal Matters

the Goods and Furniture in
Execution. In this Cafe it
was held, that the Judgment
Creditors having lodged their
Writs of Execution in the
fame Vacation that the Party
died, it related to the Tefte of
the Writ as to all but Pur-
chafers ; confequently that
thefe Goods were as evided
from A. in his Life-time ; by
which Means the fimple Con-
tradt Creditors, who defired
to Hand in the Place of the
Judgment Creditors upon the
Land in Proportion, as thel'e
had exhaufted the Perfonal
Eftate, (fuppofing A. to have
left the faid Perfonal Eftate at
his Death) were without Re-
medy. Pi7^c 399, 400 (N)

A. owes Money by feveral Judg-
ments and Bonds, and dies
Inteftate. His Adminiftrator
pays the Judgments and fome
of the Bonds, and pays more
than the Perfonal Eftate a-
mounts to ; what the Admi-
niftrator paid on the Judg-
ments muft be allowed him ;
but as to what he paid on
the Bonds, he muft come in
fro rata with the other Bond
Creditors out of the Real Af-
fets. 400

A Decree of the Court of Chan-
cery is equal to a Judgment
in a Court of Law ; and where
an Executrix of A. who was
greatly indebted to feveral Per-
ibns in Debts of different Na-
tures, being fued in Chancery
by fome of them, appeared
and anfwered immediately,
admitting their Demands,
(fome of the Pbintiffs being

her own Daughters) and o-
ther of the Creditors fued
the Executrix at Law, where
the Decree not being plead-
able, they obtained Judgments;
yet the Decree of the Court
of Chancery, being for a jufk
Debt, and having a Real Pri-
ority in Point of Time, not
by Fi(flion and Relation to the
firft Day of Term, was pre-
ferred in the Order of Pay-
ment to the Judgments ; and
the Executrix proteded and
indemnified in paying a due
Obedience to fuch Decree, and
all Proceedings at Law ftayed
againft her by Injundtion.
Fage 402 (N)

Securities bought in for lefs tfjan
is due. See €onipofiUon»

In ichat Cafes Security has or has
not been required.

Where the Will does not require
that the Executor Ihould give
Security, it is not ufual for
the Court to infift on it, un-
til fome Mifbehaviour ; but
where one by Will charged
the Refidue of his Perfonal
Eftate with 40 /. per Atinurn.
to his Wife, to be paid quar-
terly, the Executor was or-
dered to bring before the
Mafter fufficient in Bonds and
Securities, to be fet apart to
fecure this Annuity. 336

Where the Spiritual Court has
refufed to grant the Probate
of a Will to an Executor re-
puted to be in bad Circum-
ftances, and abfconding, until

contained in the Third Volume.

he fliould give Security for a
due Adminiftration of the Af-
fets, B. R. has, in fuch Cafe,
inforced the Granting of the
Probate by a peremptory Man-
damus, P^S^ 217 (^)

^equeffratiou. See Tit. pja-

One that had been a Prifoner in
Newgate for Debt, but fince
removed to the Fleet, is ex-
communicated ; the Court of
Chancery will not dired the
Writ of Excomi7mnicato Ca-
piendo to the Warden of the
Fleet ; but the Writ may be
direfted to the Sheriff, vi^ho
may return a Non eji Inven-
tus, and on this Return, B. R.
may grant an Habeas Corpus,
and thereon charge him with
an Excommunicato Capiendo.

53
The Sheriff is the proper Officer

to execute Procefs ; only where
he is Party, or otherwife in-
capacitated, it muft be diredl-
ed to the Coroner. ^^

Money was lent on the Mort-
gage of a Ship without any
Covenant for Payment of the
Money. The Ship was taken
at Sea, and the Mortgagor
died ; the Executors of the
Mortgagor decreed to pay the
Mortgage Money. 360

^oUcfta?, See ^tto?ncp»

In the Cafe of the South-Sea
Company, in whom the E-
flates of the late Diredors are
vefted by Aft of Parliament ;
where the Statute of Limita-
tions might have been pleaded
againfl the late Directors, it is
pleadable again fl the Com-
pany, who fland but in fuch
Diredtors Place. P^g^ 143

A Trader in London having Mo-
ney of y.S. (who refided in
Holland) in his Hands, bought
South-Sea Stock with it in his
own Name, but entered it in
his Account Book as bought
for J. S. after which the
Trader became Bankrupt j the
Trufl Stock not liable to the
Bankruptcy. 187 (N)

All the South-Sea Loans were
advanced on the Credit of the
Stock, without inquiring after
the Ability of the Borrower.

361

^pecificfe T>t\jiit 0| Icffiic^
See jtegacp,

SspecificH Iff n. See lien,

gjpccificH IPerfojmance, See

Agreejnent when to be per-
formed in Specie, and nshen

not. Tit. agceEmcnt»

Spitftltal Coiltt See COUCt!Cf»

0tatutc!$

A Ta B l E ^/ the Principal Matters

@)tatutejs 0? 9aj3 of Parlia=
ment, anD Euleis concetn=

No new Thing, but ufual that
an Intereft raifed by a fubfe-
quent Statute, fliould be under
the fame Remedy and Ad-
vantage, as an Intereft exifling
before. Thus the Statute of
32 H. 8. enabling a Man to
devife his Lands, has been in
fome Refpefts held to be
within the Equity of 2j H,%.
So the A6t of 12 Car, 2. e-
refting the Excife, may, with
Regard to the Sale of Offices
within that Branch of the Re-
venue, be within the Reafon
of the 5 Gf 6 of Ed. 6. Page

393. 394 (N)

Inftances where Penal Laws have

not been extended by an e-

quitable Conftruiftion. 43 1

The Preamble of an Aft of Par-

• liament faid to be the Key

for opening the Meaning and

Intent of the Aft. 434

In what Cafes and under what

i Gircumftances an Affirmative

Law, without Negative Words,

may repeal or take away the

Force of a former Law. 491

Statutes of Bankruptcy.

XanfttuptjEi*

See

Statute of Di/iribution. See

Diffcibution, mm*

Statute of Frauds and Perjuries.

See j^urcljafe, eeciicmejs,

miw, &c.

Statute of Limitations. See

Llmitatfonsf,

Statute of Toleration. See iDif=

fentetjs.

S)upplicaljit See mtitjsf,

€)uretp» See OBail*

S)iicl3ft30?» See ^ointcnatitiEf,

CajceiQf*

No Bill will lie for a Tenant
to be relieved out of the
Arrears of Rent, for Taxes
which the Tenant has actually
paid on Account of Rent re-
ferved to a Charity, which
appears to be exempted from
Taxes. Page 128 (N)

Where Land was mortgaged for
fecuring an annual Payment
of 20 /. to a Widow, in
Satisfadlion of her Dower ;
this annual Payment being fe-
cured out of Land, ought to
anfwer Taxes as the Land
does ; but if the Tenant, in his
Payment of the Annuity to
the Widow, omits to dedudt
for Taxes, he fliall not make
her refund in Equity. ibid.

Cfnantis in Commom
3!ointcnant!5,

See

€:erm fo? ?ear!5, ann Cerm
attennant on tge %\\Wi'

tance* See Eftate for Tears.

Cctm

contained in r^^ Third Volume.

Ccrm nnn Vacation*

As to all but Purchafers (not
Cieditors) Judgments entered
in the Vacation relate to the
firil Day of the preceding
Term. Page i()()

A. Tenant for Life, Remainder
to B. in Tail, as to one Moi-
ety, Remainder to C. an In-
fant in Tail, as to the other
Moiety , Remainder over.
There is Timber on the Pre-
niiffes greatly decaying ; B.
the Remainder Man brings a
Bill, praying that the decay-
ing Timber may be cut down,
fold, and the Money divided
betu^een him and the Infant ;
the Tenant for Life ordered
to have fufficient left for Re-
pairs, and an Allowance for
Damage done to him on the
Ground ; but not to be con-
lidered for the Timber, which,
when fevered by any Means
whatfoevcr, belongs to the
firft Owner of the Inheritance.
Decaying Timber not to be
cut down, if for Ornament or
Safety. Alfo where an Infant
is concerned in the Inheri-
tance, no Timber to be cut
down without the Approba-
tion of the Mafter, and the
Infant's Money to be put out
for his Benefit. 267

Vol. III.

One has no Land in A. but has
Tithes there, and devifes all
his Land in A. The Tithes,
as they are iffuing out of the
Land, and Part of the Profits
thereof, Ihall pafs. P^^^ 3S6

Crane* See more Tit. osanS*
rupt0, partiiECiJ*

A Tradefman in London, by Or*
der of a Tradefman in the
Country, fends Goods to the
latter, who does not appoint
or name the Carrier j after-
wards the Carrier imbezils the
Goods ; the Trader in the
Country muft ftand to the
Lofs. 186

A Trader in London having Mo-
ney of y. S. (who relided in
Holla?id) in his Hands, bought
Soiith-Sea Stock in his own
Name, but entered it in his
Account Book as bought for
J. S. after which the Trader
became Bankrupt ; determined
that this Stock was not liable
to the Bankruptcy. i87(N)

€canfpo?tation» See jTcIonp^
Cvcejs, See Cimber*

Crial,

Trial of the Cuftom of London
by the Certificate of the Re-
corder, and what, and againfl
whom the Remedy is to be
7 Q_ had

A Ta b l e of the Principal Matters

had in Cafe of a falfe Certifi-
cate, fee Tit. LotltlOtU
As for the Manner of Trial of
Cleiks convidt before the Or-
dinary, fee Tit. Clcrijp.

Cruff and Cruffee,

Where a Judgment is given to a
Papift, he cannot extend the
Land, for that would give him
an Intereft in the Land, con-
trary to the exprefs Words of
II Gf 12 of ^. 3 . cap. 4, and
it is the fame Thing where
the Judgment is given in Truft
for a Papift, Page 46 (N)

Truftee cannot change the Na-
ture of the Cejiuy que Truft' s
Efbte, by turning Money in-
to Land, Gf e coiiverjo. 100

A Breach of Truft Evidence of
the greateft Fraud. 131

A bare Truftee is a good Witnefs
for his CeJluy que Triiji, but
not an Executor in Truft, as
he is liable to be fued by Cre-
ditors, and to anfwer Cofts.

181

A Trader in London having Mo-
ney of J. S. (who refided in
Holland) in his Hands, bought
Soutk-Sea Stock in his own
Name, but entered it in his
Account Book as bought for
y. S. afterwards the Trader
became Bankrupt ; determined
that this Truft Stock was not
liable to the Bankruptcy.

i87(N)

One makes his Wife his fole
Heirefs and Executrix of all
his Real and Perfonal Eftate,
to fell and difpofe thereof at
her Plcafure, to pay Debts and

Legacies, and gives his Brother
(who was his next of Kin and
Heir) 5 /. The Wife has the
Refidue to her own Ufe, and
not as a Truftee. P^g^ 193

If a Judgment be given in Truft
for a Feme Sole, who marries,
and by Confent of her Tru-
ftees is in Poffeflion of the
Land extended, the Hufband
may aflign over the extended
Intereft, 200

Every Executor is a Truftee for
the Performance of the Will,

205

Money agreed to be laid out in
Land fliall be taken as Land ;
and no Difference whether it
is depofited in the Hands of
Truftees, or remains in the
Hands of the Covenantor. 211

A Truftee forbearing to do what
it was his Office to do, {hall
not prejudice his CeJluy que
Truft. 215

Every CeJluy que Trujl, whether
a Volunteer or not, is intitled
to the Benefit of the Truft ;
and no Reafon that the Tru-
ftee fliould keep the Eftate.

222

The Wife of Cepty que Trujl
not intitled to Dower. 229

Huft)and may be Tenant by the
Curtefy of a Truft. 234

The Court never allow an Exe-
cutor or Truftee for his Time
and Trouble, efpecially where
there is an exprefs Legacy for
his Pains, ^c. 2/^^

Nay, an Executor in Truft, who
had no Legacy, and where the
Execution of the Truft was
likely to be attended with
Trouble, at firft refufed, but
afterwards bargained with the

Reft-

contained in the Third Volume.

Refiduary Legatees, in Con-
fideration of lOO Guineas, to
ad: in the Executorfhip ; and

• he dying before the Execution
of the Truft was compleated,
his Executors brought a Bill
to be allowed thefe loo Gui-
neas out of the Truft Money
in their Hands ; but the De-
mand was difallowed. Fage
251, 252 (N)

Truftee compounds Debts or In-
cumbrances; who to have the
Benefit of it, fee ^ompofi-

tiott, Debt^, Sec.

The Devife of a Truft to be con-
ftrued in the fame Manner as
that of a legal Eftate. 259

An Executor or Truftee for an
Infant negledls to fue within
fix Years ; the Statute of Li-
mitations fliall bind the In-
fant. 309

A Fine and five Years Non-
claim ftiall, in Favour of a
Purchafer, bar a Truft Term,
though the Cejliiy que T7-uJi be
an Infant. 310 (N)

Where a Bond is given to B. in
Truft for A. the Money due
on the Bond fliall be paid in
a Courfe of Adminiftration ;
fo if there be a Term for
Years in B. in Truft for A.

342
A Truftee mift)ehavlng himfelf

ordered to pay Cofts out of
his own Pocket, and not out
of the Truft Eftate. 347

Though, generally fpeaking, an
Executor or Truftee com-
pounding or releafing a Debt,
muft anfwer for the fame; yet
it" this appears to have been
for the Benefit of the Truft

Eftate, it is an Excufe. Page

381

The Statute of 7 Anna^ cap. 19;
enabling Infant Truftees to
convey, purfuant to the Di-
rections of the Court of Chan-
cery, extends only to plain
and exprefs Trufts, not to
fuch as are implied or con-
ftrudtive only. 387

Leafe of a Coal-Mine to A. re-
ferving a Rent ; A. the Lef-
fee declares himfelf a Truftee
for five Perfons, to each a
Fifth. The five Partners en-
ter upon, work and take the
Profits of the Mine, which
afterwards becomes unprofita-
ble, and the Lefi"ee Infolvent j
the Cejiiiy que Triijis not lia-
ble, but for the Time during
which they took the Profits.

402

In what Cafes an Executor Jhall
be only a Trujlee, fee Cjf*

tuto?.

Refulting Trujl.

One devifes a Rent-charge to be
fold to pay Legacies amount-
ing to 800 /. and if the Rent-
charge fhould fell for 1000/.
then the Teftator gives a fur-
ther Legacy of 200 /. The
Rent-charge fells for above
800/. and lefs than 1000/.
what exceeds the 800 /. (hall
belong to the Heir as a Re-
fulting Truft. 252

*rruji

A Ta b l e ^/ the Principal Matters

Trujl for ralfing Daughters Por-
tions and Paymejit of Deits,
fee alio Po?tiO"5S 0? P>JOtli=

ficnss fo? Cljiiojciu

The Trufl: of a Term is to raife
Daughters Portions by Rents,
Iflues and Profits ; or by ma-
king Leafes for three Lives at
the ancient Rent j or by grant-
ing Copyholds on Fines j the
Money to be paid to the
Daughters at their Age of
eighteen, or Marriage, or as
foon after as the fame can be
raifed out of the PremifTes a-
forefaid ; the Portions, as it
feems, cannot be raifed by
Sale or Mortgage, Page i

In a Devife of Lands to pay
Debts, if the Creditors bring
a Bill to compel a Sale, the
Heir is, generally, to be made
a Party j [ecus of a Trufl
created by Deed to pay Debts.

In the Cafe of a Deed of Trufl
to pay Debts, the Sanity of
the Teflator is not proved ;

- feciis where a Bill is brought
to prove a Will of Land. 93

One by Will charges all his
worldly Eflate with his Debts,
and dies feifed of Freehold

• and Copyhold Eftates, which
he particularly difpofes of by
Will ; the Copyhold, though
not furrendered to the Ule of
the Will, fhall yet be applied
to the Payment of the Debts
pari paffu with the Freehold.

If I charge all my Lands with
Payment of my Debts, and
2

devife Part to j1. and other
Part to B. (s'c. the Creditors
cannot be paid out of the
Lands till the Mafler has cer-
tified what the Proportion is,
which each Devifee is to con-
tribute ; but if the Mafler cer-
tifies that the Debts will ex-
haufl the whole Real Eflate,
then the Creditors may pro-
ceed againll any one Devifee
for the Whole. Page 98

Term of one Thoufand Yeais
to fecure Daughters Portions,
payable at fixteen ; provided,
if no Daughter at the Time of
Failure of Illue Male, the
Portion to fink. There is a
Daughter who attains to fix-
teen, and marries without
Confenf, and no Son by the
Marriage j but the Daughter
dies in the Life-time of the
Father and Mother, and con-
fequently while there might
be a Son j the Portion finks.

134
In a Settlement a Term was

raifed for Daughters Portions,

liz. 10,000/. with a Provifo,

that if the Father by Deed or

Will fhould give or leave the

Sum of 10,000/. to his faid

Daughters, it fhould be a Sa-

tisfadion ; the Father leaves

Land to the Daughters of the

Value of 10,000/. this no

Satisfaftion. 245

A Trufl Efiiate was decreed to
be fold for the Payment of
Debts and Legacies, and to
be fold to the befl Purchafer.
vf. articles to buy the Eflate
of the Truflees, and brings a

, Bill to compel them to per-
forra the Contradl j the Court

will

contained in the TniKD Volume.

will make no new Decree,
but leave the former Decree
to be purfued. Page 282

Tnijlees for prefervmg Contin-
gent Remainders i

Sir P. T. Tenant for Life, Re-
mainder to his Son R. T. for
Life, Remainder to his firft,
&c. Son in Tail. Sir P. T.
by Indenture T'ripartite, be-
tween himfelf of the firft
Part, R. T. of the fecond
Part, and J.S. of the third
Part, covenanted to levy a
Fine of the Premifles, But
R. T. did not join in any Co-
venant in the Deed, nor in
the Fine, but fealed the Deed ;
determined, that this was no
Surrender, in Regard the Re-
mainder Man cannot furren-
der, but only releafe to the
Tenant for Life. And the bare
Sealing the Deed by R. T. the
Son, would neither furrender
nor releafe his Eftate, confe-
quently the Contingent Re-
mainder to the firft, &c. Son
was preferved, there being a
Right cf Freehold fubfifting
in R.T. the Son, for the fup-
porting of this Right. 2 10 (N)

SJecUta ffcnetal anH fpecinU

See alfo Jiurp*

N all Indictments againft one

for being AccefTary after the

Fadt, by Receiving, Harbour-

VoL. m.

ing, Cc. a Felon, it is necefTary
to charge, that the Defendant
knew the Principal was guilty
or convicted of Felony ; and
the Omiffion of this neceflary
Ingredient is not to be helped
by the Finding of the Ver-
dict; efpecially if the Verdift
does not find the Faft of No-
tice, but only what is Evi-
dence thereof. Page /\.()t^

Where a fpecial Verdid has not
certainly found any Felony
upon the Fadls therein ftated,

- and confequently it is uncer-
tain whether the Prifoner be
guilty of any Felony at all,
or only of a Mifdemeanor ;
or where, the Jury has found
a general Verdidl that the Pri-
foner is guilty, and afterwards
Judgment is arrefted for De-
feds in the Indidlment ; in
thefe Cafes the Judgment gi-
ven muft be Judgment of Ac-
quittal J but this will be no
Bar to another Indidtment
conftituting a different Offence,

499

eioUmtni-p* See alfo f raun*

Every Cejliiy que 'Truft, whether
a Volunteer or not, is intitled
to the Benefit of the Truft.

222

Any voluntary Bond is good a-
gainft the Executor, though
to be poftponed to a fimple
Contradl Debt, ibid.

An Hufband voluntarily, and af-
ter Marriage, allows the Wife,
for her feparate Ufe, to make
Profit of all Butter, Eggs, &c.
7 R beyond

A Ta B l E ^/ the Princrpal Matters

beyond what is ufed in the
Family ; out of which the
Wife faves loo/. and lends it
to the Hufband. After the
Hufband's Death, the Court
will, in order to encourage
the Wife's Frugality, allow of
this Agreement, and let her
come in as a Creditor for this
loo/. efpecially there being
no Defect of AfTets to pay
Debts. P^g^ 337

A. having a Wife who lived Se-
parate from him, courted, and
afterwards married another
Woman, who knew nothing
of the former Wife's being a-
live. But this being after-
wards difcovered, in order to
induce the fecond Wife to
continue to live with him, A.
gave a Bond in Truft to leave
her looo /. and died, not
leaving AfTets to pay his Am-
ple Contradt Debts ; this Bond
held to be worfe than volun-
tary, being given on an illicit
Confideration, and pollponed
to all the fimple Contradl
Debts. 339

CClatu, See ^uattiian*

CCIaffe. See Cimbcc.

caiife. See 'Baton aim JFeme*

miW. See alfo ejcpoQtUJlt Cf

ffiaoiois*

{Whether Parol Evidence be to
be admitted in the Cafe of a
Devife of a Guardianjkip, or
in a Will of Perfonal Eftatey
fee Parol Evidence.)

JN fome Senfe the Statute of
Diftribution makes a Will for
the Inteftate, viz. by fo far
vefting the diftributary Share
in the Perfon intitled, as that
though he fliould die imme-
diately after the Inteftate, it
will be Tranfmiflible to his
Reprefentatives : Juft as if one
intitled to a Legacy, payable
at a future Time, (hould die
before the Time of Payment,
the Legacy would notwith-
flanding be an Intereft vefted
prefently. P^ge 49, 50 (N)

Where a Bill is brought to prove
a Will of Land, the Sanity of
the Teftator muft be proved ;
fecus in the Cafe of a Deed
of Truft to fell for Payment
of Debts. 93

The Court never orders a Will
to be proved viva voce at the
Hearing, as they do a Deed^^

ibid.

Devife of all my Houfhold
Goods, Plate, &c. to A. the
Refidue of my Perfonal Eftate
to B. The Ready Money and
Bonds do not pafs by the
Word Goods, tor then the Be-
queft of the Refidue would be
void. J 12

contained in the Third Volume.

A Will coming into Weftminfter-
Hall ought to be conftrued
accordijig to the Rules of the
Common Law. P^g^ 1 1 5

One articles to buy Land, and
the Title is under a Will not
proved in Equity againfl the
Heir ; yet in fome Cafes E-
quity will compel the Pur-
chafer to accept the Title.

190

Though it be proper to prove a
Will in Equity, yet the fame
is not abfolutely neceflary, any
more than it is to prove a
Deed in Equity. 192

Where the Teftator owns his
Hand before the Witnefles
who fubfcribe the Will in the
Teftator's Prefence ; the Will
is good, though all the Wit-
nefles did not fee the Teftator
lign. (See Tit. Witnefs to a
Will.) 254

Where a Title depends on the
Words of a Will, this is as
properly determinable in E-
quity, as by a Judge and Jury
at Nifi prius. 296

An Equity of Redemption of a
Copyhold may be devifed
without being furrendered to
the Ufe of a Will. 358

Probate.

A, dies indebted by one Bond to

B. and by another Bond to

C. and leaves B. and J. S.
Executors ; B. intermeddles
with the Goods, and dies be-
fore Probate, and before any
Election made to retain ; ^.
Whether as B. might have re-

tained the Goods in his Hands,
his Executors have not the
fame Power ? P^g^ 183

Where an Executor, before Pro-
bate, files a Bill, and after-
wards proves the Will ; fuch
fubfequent Probate makes the
Bill a good one. 351

A Donatio caujd mortis^ though
in Nature of a Legacy, need
not be proved with the Will.

Devife and Devifee. See alfo

Cjcpofition of mam*

One has two Sons A. and B.
and three Daughters, and de-
vifes his Lands to be fold to
pay his Debts ; and as to the
Money arifing by Sale after
Debts paid, he gives 200/.
thereout to his eldeft Son A.
at twenty-one, the Refidue
to his younger Children e-
qually. A. the eldeft dies be-
fore twenty-one ; this 200 /.
(hall go to the Heir of the
Teftator. 20

One being feifed of Lands in Fee
in A. and poirelfed of an ex-
tended Intereft upon a Statute
in B. devifes all his Lands,
Tenements and Real Eftate in
A. and B. to J. S. and his
Heirs; this will not pafs the
Extended or Chattel Intereft
in B. efpecially if there be
another Claufe in the Will,
which, ifjter al\ difpofes of
all the Teftator's Debts or
Credits, 26

One poflefTed of a Term for
Years, devifes it to A. for

Lifb,

A Ta b l e of the Principal Matters

Life, Remainder to the Heirs
of A. This fliall, it feems,
on A'% Death, go to his Exe-
cutor, and not to his Heir.

Fage 29

A. has two Sons B. and C. and
on the Marriage of B. A. fet-
tles Part of his Lands on B. in
Tail ; and A. being alfo feifed
in Fee of the Reverfion of
thefe Lands, and of other
Lands in PoffefTion, devifes
all his Lands and Heredita-
ments not otherivife by him
fettled or difpoj'ed of; the Re-
verfion in Fee will pafs. 56

One devifes all his Lands in A.
B. and C. and elfewhere. The
Teftator has Lands in A. B.
and C. and Lands of much
greater Value in another Coun-
ty ; the Lands in the other
County fhall pafs by the Word
elfewhere. 6 1

A Will begins, " As to all my
" worldly Eftate, my Debts
" being firft paid, I give,
" &c" The Real Eftate is
liable to the Debts, nothing
being devifed till the Debts
are paid. 91

Li a Devife of Lands to pay
Debts, if the Creditors bring
a Bill to compel a Sale, the
Heir is, generally, to be made
a Party. 92

If I charge all my Lands with
Payment of my Debts, and
devife Part to A. and other
Part to B. &c. The Creditors
cannot be paid out of the
Lands, till the Mafter has cer-
tified what the Proportion is,
which each Dcvifee is to con-
tribute } but if the Mafter cer-
2

tlfies, that the Debts will ex-
hauft the whole Real Eftate,
then the Creditors may pro-
ceed againft any one Devifee
for the Whole. Page 98

One devifes the Surplus of his
Perfonal Eftate to his four
Executors ; this is a joint Be-
queft, and, on the Death of
one, ftiall go to the Survivors,
as well in the Cafe of a Le-
gacy, as of a Grant. 115

Devife of Lands to Truftees in
Fee, in Truft within fix Years
after the Teftator's Death, to
raife and pay 1500/. to his
Daughter A. A. dies within
the fix Years ; the 1 500 /.
fhall go to her Adminiftrator,
here being no certain Time li-
mited when, but only the
ultimate Time within which,
it fhall be raifed. 119

See alfo 172

I devife 100/. per Annum to my
Son A. and his Wife for their
refpedlivc Lives ; 60 /. where-
of to be paid to the Wife for
the Support of herfelf and
Daughter, the Remaining 40/.
to my Son ; the Son dies -, his
Wife fhall have the Whole
1 00 /. per Amnim. 121

Devife to fuch of the Children
of A. as ftiall be living at his
Death. A. has Ifliie B. who,
becoming a Bankrupt, gets
his Certificate allowed, after
which A. dies ; this Contin-
gent Intereft is liable to the
Bankruptcy. 132

Devife to my Daughters until
my Son ftiall attain his Age of
forty Years, hoping by that
Time my Son will have feen

his

contained in the Third Volume.

his Folly, The Son dies be-
fore forty ; the Devife to the
Daughters ceafes. So a Devife
to Jf. until B. {hall attain
forty Years ; if B. dies before
forty, A.'s Eftate Hiall ceafe.
Secus, if the Devife to A. be
made a Fund to pay Debts or
Portions, which cannot be
raifed until B. (hould have at-
tained his Age of forty, in
which Cafe the Word pall is
taken for Jlmild. Page 176

D^'ife to my Son A. for Life,
Remainder to his firft Son in
Tail Male, Remainder to his
fecond, third, fourth and fifth
Sons fucceffively, without fay-
ing for what Eftate, or any
Words tantamount. A. has
two Sons, the former of whom
dies in his Life-time ; the fe-
cond Son fiiall have an Eftate-
tail, being the firft Son at his
Father's Death. % 178

One devifes a Rent-charge to be
fold to pay Legacies amount-
ing to 800 /. and if the Rent-
charge fhould fell for 1000 /.
the Teftator gives a further
Legacy of 200 /. The Rent-
charge fells for above 800 /.
and lefs than 1000 /. what
exceeds the 800/. fliall belong
to the Heir as a Refulting
Truft. 252

Devife of a Term to A. for Life,
Remainder to the Children yl.
fhall leave at his Death, and
if the Children of .<^. die with-
out Iffue, then to B. the
Children of A. die without
leaving Iflue at their Death ;
this is a good Devife over.

258
Vol. III.

The Devife of a Truft to be
conftrued in the fame Manner
as that of a legal Eftate. Page

259
The Words, " I devife all my

" Temporal Eftate", the fame

as, " I devife all my World-

" ly Eftate," and pafs a Fee.

And this is the plainer, where

it is afterwards laid, All the

Reft- of my Real Eftate, the

Word Rejl being a Term of

Relation. 295

The Teftator devifed a Term for
Years and all his Perfonal E-
flate to A. an Infant, and if
A. died during his Infancy,
and his Mother fliould die
without any other Child, then
to B. A. died during his In-
fancy; though the Mother was
living, and might have a Child,
yet the Court aided B. the De-
vifee over, by diredling an Ac-
count and Difcovery of the
Eftate, in order to fecure it,
in Cafe the Contingency
fliould happen. -^oo

A. devifes all his Real and Per-
fonal Eftate to Truftees, their
Heirs and Executors, in Truft
to pay 1 5 /. per Ann. to the
Plaintiffs his two Sifters for
their Lives, and after feveral
Legacies, the Surplus in Truft
for Diflenting Minifters, and
gives 300 /. Legacies to his
Truftees, Afterwards the Te-
ftator, by two Deeds of a
fubfequent Date, conveys all
his Real Eftate in Truft, and
makes a Gift of his Perfonal
Eftate to the Ufe of the fame
Truftees and their Heirs, &c.
Provifo both Deeds to be void,
7 S on

A Ta b l E of the Principal Matters

on his Tender of \o s. to
them. There was aho a Pro-
vifo, that if the Sifters dif-
puted the Will, they fliould
forfeit their Annuities. The
Teftator, after he had executed
the Deeds, ftill kept them by
him. The Truftees refufe pay-
ing the Sifters their Annuities,
who thereupon bring their
Bill, infifting that the Deeds
had revoked the Will ; and
that there was a refulting
Truft for them as Heirs at
Law ; or, at leaft, that they
(the Sifters) were intitled to
their i <; /. per Annum Annui-
ties. The Defendant infifted
on the Plaintiffs having for-
feited their Annuities ; de-
creed, that the Annuities
fhould be paid to the two
Sifters the Plaintiffs, but the
Surplus to go to the Diffenting
Minifters, and the Truftee,
for his Mift)ehaviour, to pay
Cofts out of his own Pocket.

^^^■^ 344. 347

"Revocation of a Will.

Tenant in Tail Male, Remainder
to himfelf in Fee, devifes his
Lands to J. S. and then fuf-
fers a Recovery to the Ufe of
himfelf in Fee, and dies with-
■out Iffue Male ; this is a Re-
vocation of the Will. 163

"Where the Spiritual Court fet a-
fide a Will as revoked by the
Teftator, this Sentence could
extend only to the Perfonal
Eftate dilpofcd of by fuch
Will. ' i66

One feifed of a Leafe for Lives
devifes it, and afterwards re-
news ; the Renewal is a Re-
vocation of the Will. Page

166

Seeus, as it feems, in the Cafe
of a Leafe for Years. 168

A. and B. Tenants in Commoa
of Lands in Fee. A. by Will
dated 25 'January^ 171 9> ^^-
vifed his Moiety in Fee. Af-
terwards A. and B. made Par-
tition by Deed dated 16 May,
1722, and Fine, declaring the
Ufe as to one Moiety in Se-
veralty to A. in Fee, and as
to the other Moiety in Se-
veralty to B. in Fee -, this
Deed of Partition and Fine no
Revocation of the Will of A.
169, 170 (N)

W^here a fubfequent Conveyance
does not revoke a Will. 346

Witnefs to a Will.

Where the Teftator owns his
Hand before the Witneffes
who fubfcribe the Will in the
Teftator's Prefence, the Will
is good, though all tlie Wit-
neffes did not lee the Teftator
fign. _ 254

Difference obferved with Regard
to the Statute of Frauds, which
does not fay, that the Tefta-
tor ftiall fign his Will in the
Prefence of three Witneffes,
but requires thefe three Things:
ift, That the Will fliould be
in Writing ; 2dly, That it
fliould be figned by the Te-
ftator ; and 3dly, That it
llipuld be fi^blcribed by three
Witneffes

contained in the Third Volume.

WitnefTes in the Prefence of
the Teftator. Page 254

CXtlitttcfiEi* See aifo (fijinence,
€j:aminatiott and Depofi^

A Witnefs ordered to be ex-
amined de bene ejfe, where the
Thing examined to, lay only
in the Knowledge of the Wit-
nefs, and was a Matter of
great Importance, though the
Witnefs was not proved to be
old or infirm. 77

A bare Truftee is a good Wit-
nefs for his Cejluy que Triijl ;
but not an Executor in Truft,
as he is liable to be fued by
Creditors, and to pay Cofts.

181

A. Commiflion being granted to
examine WitnefTes at yllgiers,
the Plaintiff died, by which
the Suit abated ; but the Wit-
nefl'es were examined before
Notice of the Plaintiff's Death ;
the Examination held regular,
though one of the WitnefTes
was living. 195

WitnefTes examined in a Com-
mifTion after the Demife of
the Crown, but before No-
tice thereof, liable to be in-
difted for Perjury, if they
fwear falfe. 196

See 1 Annae, flat, i . cap. 8. fedt. 5.

A Rule both at Law and in
Equity, that where to a Suit
there are never fo many De-
fendants, if the Plaintiff can-
not give Evidence againfl a
Defendant, he may be called
as a Witnefs for a Co-Defen-
dant. 288

After the Defendant has been
examined on Interrogatories,
and Publication pafTed, the
Plaintiff ought not to have a
Commif^on to examine Wit-
nefTes in order to falfify the De-
fendant's Examination. Page

motnzih

Women not to be endowed of a
Trufl. See OOtUer*

moit}^. See alfo Cj:poCtlOlt
Of moi1}0.

Where a Title depends on the
Words of a Will, this is as
properly determinable in E-
quity, as by a Judge and Jury
at Ni^ prills. 296

CBcftfltffiS* See "Dtm^

mxit^. See alfo PloCffS?*
Certiorari.

After in niillo eft erratum plead-
ed, the Plaintiff in Error can-
not have a Certiorari ex de-
bito Juflitia ; and as it is dif-
cretionary, the Court will a-
ward it to affirm, but never
to reverfe a Judgment, or
make Error. 3 1 5 (N)

EjeSlione

A Ta b l e 0/ the Principal Matters

EjcSlione Cujlodia.

^. If not a proper Writ where-
by to try the very Right of
Guardianfhip. Page 1 54 (N)

Elegit.

An Advowfon defcendlng to an
Heir is Real Affets, and, as it
feems, extendible in an Elegit.

401

Error.

Writ of Error not amendable,
and why. 3 1 5 (N)

Excommunicato Capiendo.

One who had been a Prifoner in
Newgate for Debt, but fince
removed to the Fleet, is ex-
communicated ; the Court of
Chancery will not diredt the
Curfitor to make out a Writ
of Excommunicato Capiendo to
the Warden of the Fleet ; but
the Writ may be diredled to
the Sheriff, who may return
a Non ejl Inventus, and on
this Return, B. R. may grant
a Habeas Corpus, and thereon
charge him with an Excom-
municato Capieiido, 53

The Writ of Exconununicato Ca-
piendo is a Vifcountiel Writ ;
but where the Sheriff is Party,
or otherwife incapacitated, it
muft be diredled to the Co-
roner, r^
I

All Writs of Excommunicato Ca-
piendo mufl be returnable in
B. R. Page 55

Ne Exeat Regnum.

This originally a State Writ, yet
now made ufe of in Aid of
the Subjedls, to help them to
their juft Debts; but ought
not to be granted without a
Bill firft filed. 313

Tet fee a Precedent to the con-
trary, ibid. (N)

How far the Lord Bacon thought

proper to extend this Writ.

ibid. (N)

Habeas Corpus Gf Homine Re-
plegiando.

^{. If thefe Writs be not calcu-
lated only for the Liberty of
the Subjedt, and therefore not
fo proper to try. the Right of
Guardianfhip, as that De E-
jeSliofie Cu/iodia. 1 54 (N)

Original.

The Court will not order the
Filing an Original to make
good a judgment after Error
brought, without fome Ex-
cufe for not filing one before.

Ravijhnent oj TFard.

i>u. If this Writ be proper, un-
lefs where the Defendant in

the

contained in //^^ Third Volume.

the Adion
Ward.

takes away the
^age 154 (N)

^cire Facias.

The Plaintiff gets Judgment in
the Petty Bag, after which he
is ftopped by an Injundlion.
The Year and Day pafs ; the
Plaintiff, though hindered by
the Injundion, yet cannot fue
out Execution without a Scire
Facias. 3 6

%. If in this Cafe the Plaintiff
might not have taken out Exe-
cution, and continued it by
Vicecomes non mifit breve.
ibid. (N)

A Scire Facias is not in Nature
of a new Adion, but a Con-
tinuation only of the old one.

148

SiippUcwuit.

One taken on a Supplicavif, and
continued in Prifon a Year
without any frefh Threatning,
ought to be difcharged. 103

Wafie.

A. Tenant for Years, Remainder
to B. for Life, Remainder
to C. in Fee. A. is doing
Vol. III.

Wafte ; B. though he cannot
have an Adion of Wafte, as
not having the Inheritance,
yet may have an Injundion.
Fage 268 (N)

Pent*

ONE taken on a Supplica'
vit, and continued in Pri-
fon a Year without any frefh
Threatning, ought to be dif-
charged. 1 03
By the 1 8 Eliz. cap. 7. (intitled
an Order for the Delivery of
Clerks without Purgation) the
Juflices, before whom the Al-
lowance of Clergy fhall be
had, may detain in Prifon the
Perfons to whom they allow
Clergy, , for any Time not ex-
ceeding a Year. 446

^eat anti Da?»

The Plaintiff gets Judgment in
the Petty Bag, after which he
is flopped by Injundion. The
Year and Day pafs ; the Plain-
tiff, though hindered by the
Injundion, yet cannot fue
out Execution without a Scire
Facias. %6

FINIS.

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