^f y^/ >- ' >- ^lOSANCFltr^ ^;jM-UBRARYdk ■*5'/Xa3AlN(lJWV^ ^lOSANCElCr^ "^mwrn^ ^lUBRARYa^ 5 1 «<"' ^ ^OFCAUFOB^ ^OfCAUFOB^^ ^^WEUNIVRS-/^ ^lOSANCFlfj> ^cKUIlVDJO'^ %UDKVS01^ ^^V\E•l)NIVER% ^OAHVHan-i'*^ ^Aavjiani'^^ AlOSANCElir^ ^.yOJllVJJO'^ '^AOJnVDJO'*^ <(?UDNVSOl^ %ajMN(UftV^ ^tUBRARYQc. ^tUBRARYO/- ■ ■ ■ — ^ "J — ^(SOJITVOJO"^ '^.i/OJIlVD iO*^ ^^.OFCAIIFO/?^ .^;OFCAllFOff^ ^^WEUN!VER% >- ' <'?U3IWS01'^ ^lOSANCEllir^ o ^ AOFCALIFOff^ ^OFCAIIFOP^ '^>'oji.8V8ani^^'^ >0Aav8an'i^ ^MEUHIVfRS/^ ^lOSANCEl^^ '^■^mm'^ >- ' ■^/SUAJNnWV^ ^lOSANCEl£r^ ^tUBRARYO/v 5 1 ir^ ^ ^lUBRARYO^ § 1 ir"' ^ ^5!i\EUNIVER% ^lOSANCEl£j> o .t^EUNIVEB5'/A ■^AaMiNnmv ^lOSANCE^r, ^.SOJIIVDJO'^ ^t-UBRARYO/, § 1 1 i"' * ^iOJIlVDJO>^ I' ^JJijDitfsm'^ ^IDSANCE^r^ 5 , %a3AiNfm«^^ ^4JBRARY0/- § 1 1/"' ^ ^tUBRARYO/v § 1 Ji~' ^ ^AOJIIVDJO'*^ ^aojnvjjo'^ ^OFfAllFOS'^ ^OFCAllFOff^ >fti)WMfln'j\X> 1 ^ ^ _^lOSANCEl£r^ ^OFCAUFOft^ ^OFCAUFOff^ .■^JrtElNMRS/A ,5j\EUNIVERy/A so > ^^•UBRARYQr^ § 1 l/~' * ^^JHJBRARYQ^ -(MEUNIVEl^J/A ^WS*CEl^^ ^aojmoio'^ ^lOSANCEUr^ ^OFCAUFOR^ >&jiiiv8an-v!^ ^OFCAUFOSto jft-wiVHanT^ ^JTviwm^ %«UINnitfv^ AjflUBRARYO/ i^4IBRARYdK ^5>\EUN[VTO'4 ^lOSmEUr^ 1^ -^ ^ ^t-UBRARYO/, ^t-UBRARYQ^ %oim]Q^ %wnvD-jo^ ^uowan^ ''^/jaiAwn-j^^ '^ojitvdjo'^^ %)jiivdjo'^ ^IIIBRARYO/- ^WE■UNIVER% ^iOJlTVDJO'^ ^OFCAIIFOff^ '^OAUvaaiH^ o ,H>\E«NIVERSyA: ^JSUDNVSOl^ CO % ^10SANCEI% p r. /I — t=. %iUAlNn-3WV^ §^•1 if" ^ 5.MEUNIWRJ//, ^.OFCAIIFO/?^ >&Aavaan# ^aojiwDJO^ ^OFCAIIFOSV '^>&Aavaan# .^WE•UNIV[R% ^lOSANCFlfj^ ^•lOSANCElfj-^ , -< § 1 \r^ * ^.JOJITOJO'^ ^OFCAllFOff^ v^lOSANCEl£r>^ "^^mmws^ ^l-UBRARYQ-r XcOFCAUFOEf. ■is . ,^WE■llNIVERJ//, .A.OFCAllFORf. ^^lOS■w^CEl^;r>^ 5;^?iibrary(7/^ a,^i sa3AiNni\<^ iUBRARYO/ ■^ .FCAlIFOft^ ^lOSANCElCr^ ^OFCAllfOi?,^^ ^OFCAllFOff,^ ■^/YHUiunwv .^W[•UNIVER% ©, — - ^rjuTuv-w^ JlHVM!in-\\S<' lOSANCElfX^ aJMNMViV ^lOSANCElfr^ ^.JOJIIVJJO'^ '^il/l X;OFCAIIFO% AWfl)NIVER% i n\ '^XJUONVSOl^ o ^^lUBRARYO/^ ^OFCAllF0ff,<>^ ^ . — 'I V C7 — 1 (J ^tUBRARYQ^ 3 "1 1 f^ ^ ^OF-CAllFOff^ .t^JrtEUNIVlRVA o ^\WEUNIVERy/4 ^lOSANCElCr^ <(?13WS01'^ ■^/.yaaAiNniivv^ ^lOSANCEUr^ ■v/ia3AiN(i3Wv ^{jMUBRARYQ^ § 1 1 z"^" ^ ^aOJlTVDJO'^ ^OFCAllFOff^ _ pa "^(JAavaan-^ ^tUBRARYOf^ 5 i <<"' * ^aOJITVDJO'^ ^OFCAIIFOR(^ AWEDNIVERjy^ ^1 I §( O li. ^5MEllNIVERJ/>{i ^10SWICEI% 8, ^ ^tflBRARYQ^ -i^HIBRARYQ<;^ ^ ;5ji\EUNIVER% ^lOSAflCEl^^ ^^^4JBRARY0/^ <)N1 T 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, R 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. J 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, In 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 B. * 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 36 37 * 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. 20 * Curwyn v. Milner. 292 * Curzon and Afliton. 244 D. 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 F. 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 46 369 Foitefcue Aland 6c al' and Sheldon. Foley and Jordan. Fowler v. Fowler. * Freeman 1;. Goodland. * FuUham v. Jones. Furze and Godfrey. G. 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). H. Page 26 252 185 411 33 387 134 184 251, 252 Sir Tho- 266 306 9 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 23 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. J. * Jenner 1;. Tracey. Inglcdew and Harris. * Johnfon v. Medlicott. Johnfon 1;. Ogilby & al'. * Jones and Fullham. Jones V. Goodchild. * Jones and Hamond. :8 288 130 277 222 33 3,8 Jones -u. Earl of Strafford & al'. 79 Jones 1;. Thomas, 243 * Jordan -u. Foley. 412 * Ivy -y. Ivy. 63 K. 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. L, 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 M. 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 N. A Ta b l e ^f the Names of the Cafes. N. 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 R. 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). S. Page 134' of Mon- 264 419 439 118 337 J 54 General. HS 210 66 249 398 124, 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 T. 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. V. Vick V. Edwards. 295 ' 371 126 Nutton. 237 398 369 307 163 10 413 372 * W. 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). 24 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 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. m 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. 3 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. 3 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:; " ^ 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^"',^ in d 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. 19 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. i 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 to 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. ( •• 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) 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. T 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 to 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 £ • 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. of 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 "3 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, as (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 ^ 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 T 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. (c) See as to this Matter Vol. 2. 297. 'burner verfus Turner. 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/>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 ? Bx 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, \Sqt ^^''"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 to [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] (c) Salk. 307. [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 aifa^>^-i>i>^di^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. D ^ 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 ( 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). by 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) See the Cafe of Crufe verfus Barky, ant' 22. (c) See as to this Point the Cafe of Maxwell v. Wettenball^ Vol. 2. 26. 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. A "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^ M 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^ '(^'^'^""^ 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. '/ • 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- A 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. O 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 (c) See Skinner's Reports 6^^. The King verfus Sir Thmas Cuipe^psr. 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 c. 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 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. (c) See the Cafe immediately Lllowing. 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, if 55 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 : A 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. (c) Vide ant' 222, 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 ^"'^ 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 2. 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) 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 o 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 '=* ^ " 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. S 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. 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. be 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• 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 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, I73Jofeph ^ 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- T £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 f 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 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 FSUi*>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 1 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;.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 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, it 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, I73y 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. Ic 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. In 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 I {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 Piiblicefen- 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 cc 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 A 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?. A 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^ i 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. 88 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- j 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 to 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 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 In contained in the Third Volume. I 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 'BontJjp 0? ©bligations, tn^cu nHotoeD ann toljcn not aW loUJCD in Cquit}.'. 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. 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* o 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 2 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, 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 %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/ 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. I 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}?. EJlate in Dower. See ©OtDCr, 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 A 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, in 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 ^ 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= ftcato?, MxX^^ ©£{jtj3j ^cir. 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- 2 tor, and not to his Heir. Tage 29 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 1 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 of 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) 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 afide the Bond, as obtained by- Fraud. 129 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 to 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 3:ncuml)?ancc0. See aifo ©C' ciicitieg. 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 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 7I ^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. O 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 K 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 A 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 l^aclinment, aa of* ©tatuteis* See alfo Bafiiftiment cannot be but by Adl of Parliament. 38 No Neceffity for an Aft of Par- liament to change one's Name. 65 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. 92 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. 7 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. 33 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 Dire34(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 Jurifdit\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 2 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. 92 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. 96 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* I 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 A 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. 3H 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 7T FINIS. 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